Citation Nr: 18143435 Decision Date: 10/23/18 Archive Date: 10/19/18 DOCKET NO. 17-04 667 DATE: October 23, 2018 ORDER An initial compensable rating for bilateral hearing loss is denied. REMANDED Service connection for lung cancer, to include as due to asbestos exposure is remanded. Service connection for hypothyroidism is remanded. FINDING OF FACT The Veteran’s bilateral hearing loss results in no worse than Level II hearing acuity in the right ear and Level I hearing acuity in the left ear. CONCLUSION OF LAW 1. The criteria for an initial compensable rating for a bilateral hearing loss disability have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2014); 38 C.F.R. §§ 3.159, 4.1, 4.2, 4.3, 4.7, 4.85, 4.86, Diagnostic Code (DC) 6100 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service in the United States Army from November 1966 to October 1968. Increased Ratings Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of a veteran’s condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). In cases in which a reasonable doubt arises as to the appropriate degree of disability to be assigned, such doubt shall be resolved in favor of the veteran. 38 C.F.R. § 4.3. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. 38 C.F.R. § 4.7. In appropriate circumstances, separate disability ratings may be assigned for separate periods of time in accordance with the facts found. Such separate disability ratings are known as staged ratings. Fenderson v. West, 12 Vet. App. 119 (1998); Hart v. Mansfield, 21 Vet. App. 505 (2007). Evaluations of defective hearing range from noncompensable to 100 percent based on the organic impairment of hearing acuity as measured by the results of controlled speech discrimination tests together with the average hearing threshold level as measured by puretone audiometry tests in the frequencies of 1000, 2000, 3000, and 4000 cycles per second. To evaluate the degree of disability from bilateral service-connected defective hearing, the provisions of 38 C.F.R. § 4.85 establish eleven auditory acuity levels from Level I for essentially normal acuity to Level XI for profound deafness. Tables VI and VII as set forth in 38 C.F.R. § 4.85 are used to calculate the rating to be assigned. “[T]he assignment of disability ratings for hearing impairment are derived by a mechanical application of the rating schedule to the numeric designations assigned after audiometric evaluations are rendered.” Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). Table VI, “Numeric Designation of Hearing Impairment Based on Puretone Threshold Average and Speech Discrimination,” is used to determine a Roman numeral designation (I through XI) for hearing impairment based on a combination of the percent of speech discrimination (horizontal rows) and the puretone threshold average (vertical columns). The Roman numeral designation is located at the point where the percentage of speech discrimination and puretone threshold average intersect. 38 C.F.R. § 4.85(b) (2013). Table VIA, “Numeric Designation of Hearing Impairment Based Only on Puretone Threshold,” may be used to determine a Roman numeral designation in exceptional circumstances, such as when puretone thresholds at each of the four specified frequencies are 55dBs or more, or when the puretone threshold is 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hertz. 38 C.F.R. § 4.86. Bilateral Hearing Loss The Veteran seeks a compensable rating for bilateral hearing loss. He contends this disability is more severe than has been acknowledged by VA, and a higher evaluation is thus warranted. Upon receipt of the Veteran’s claim, he was afforded a March 2016 VA audiological examination. The results of this examination, in puretone thresholds, in decibels (dB), are as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 25 25 15 30 40 LEFT 25 30 35 55 55 The average for the right ear was 27.5, and the average for the left ear was 43.75, with the Maryland CNC revealing speech recognition ability of 96 percent in the right ear and 100 percent in the left ear. Given these findings, the mechanical application of the above results compels a numeric designation of Level I in the right ear, and Level I in the left ear under Table VI. Under Table VII (38 C.F.R. § 4.85), this designation requires the assignment of a noncompensable evaluation under DC 6100 for this period, as has been assigned by the RO. In May 2017, the Veteran submitted a private audiological examination. The results of this examination, in puretone thresholds, in decibels, are as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 30 30 20 40 55 LEFT 30 25 55 65 55 The average for the right ear was 35, and for the left ear was 46, with the Maryland CNC revealing speech recognition ability of 90 percent in the right ear and 92 percent in the left ear. Given these findings, the mechanical application of the above results compels a numeric designation of Level II for the right ear and Level I for the left ear under Table VI. Under Table VII (38 C.F.R. § 4.85), this designation requires the assignment of a noncompensable evaluation under DC 6100 for this period, as has been assigned by the RO. The Board acknowledges that the Veteran has also submitted treatment records for the relevant appeal period. While complaints of decreased hearing loss are noted in treatment, at no time were results based on an audiological evaluation provided which would support a higher rating. Thus, based on the above, the Board concludes a compensable schedular evaluation is not warranted at any time during the appeals period. Moreover, because the Veteran has displayed a consistent level of impairment during the pendency of this appeal, a staged rating is not warranted. Hart v. Mansfield, 21 Vet. App. 505 (2007). REASONS FOR REMAND The Veteran asserts that he has lung cancer and hypothyroidism as a result of his active service. Specifically, he asserts that he developed both disabilities as a result of his exposure to asbestos, dust and secondhand smoke while serving as a supply specialist in warehouses in Germany. There is no specific statutory or regulatory guidance with regard to claims for service connection for asbestos-related diseases; however, VA issued a circular on asbestos-related diseases in 1998 which provided guidelines for considering asbestos compensation claims and which are now included in the amended/rewritten VA Adjudication Procedure Manual. With specific regard to the Veteran’s claim for lung cancer, the Manual provides that Veterans who were exposed to asbestos while in service and developed a disease related to that asbestos exposure may receive compensation benefits. Claims based on exposure to asbestos require a military occupational skill with exposure to asbestos or other exposure event associated with service sufficient to request an examination with medical opinion as described in the VBA Manual, and a diagnosed disability that has been associated with in-service asbestos exposure. The VBA Manual also provides a table to determine the probability of asbestos exposure by MOS. The VBA Manual further states that, if a MOS is listed as minimal, probable, or highly probable in the table, concede asbestos exposure for purposes of scheduling an examination. In the instant case, the Veteran’s service treatment records (STRs) are negative for any complaints, treatment, or diagnoses referable to any known residuals of asbestos exposure, including lung cancer. However, the Veteran’s VA treatment provider has linked his lung cancer diagnosis to exposure to asbestos in service. However, no reasoning for this opinion was provided. With respect to both claims, the Veteran has not been afforded a VA examination to assess whether he currently has disabilities related to his exposure to asbestos in service, to include any residuals of exposure to asbestos, including lung cancer or hypothyroidism. McClendon v. Nicholson, 20 Vet. App. 79 (2006). Accordingly, the appeal must be remanded to analyze whether there is credible evidence that the Veteran was exposed to asbestos in service, and afford the Veteran VA examinations to assess the nature and etiology of his disabilities. The matter is REMANDED for the following action: 1. The AOJ should ensure that all development necessary under VA’s guidelines for processing claims based on exposure to asbestos be completed, to include (but not limited to): a) Contact the NPRC or other appropriate source to determine the probability of exposure to asbestos for the Veteran during his service abroad in Germany. b) Request that the appropriate office indicate whether it was likely that the Veteran was exposed to asbestos in the course of his assigned duties as a supply specialist. c) The AOJ should thereafter make formal findings for the record regarding whether or not the Veteran was exposed to asbestos in service, and if so, the extent of such exposure. 2. Identify and obtain any pertinent, outstanding, VA and private treatment records and associate them with the claims file. 3. Then, schedule the Veteran for a VA examination by an appropriate medical professional in connection with any residuals of asbestos exposure, to include lung cancer and hypothyroidism. The Veteran’s record must be reviewed by the examiner. All indicated tests should be conducted. The examiner should identify all residuals of exposure to asbestos, including any lung or thyroid disorder. The examiner is to provide an opinion as to whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran has any residuals of asbestos exposure, to include lung cancer or hypothyroidism, as a result of exposure to asbestos during service. If the AOJ finds that the Veteran was not exposed to asbestos during service, the examiner is asked to provide an opinion as to whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran’s lung cancer and hypothyroidism were present in service, or related to any incident of active service, to include exposure to dust and secondhand smoke in service. A complete rationale for all opinions expressed must be provided. 4. Review the claims file to ensure that all of the foregoing requested development is completed, and arrange for any additional development indicated. Then readjudicate the claim on appeal. If the benefit sought remains denied, issue an appropriate supplemental statement of the case and provide the Veteran and his representative the requisite period of time to respond. The case should then be returned to the Board for further appellate review, if otherwise in order. Evan M. Deichert Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Yacoub, Associate Counsel