Citation Nr: 18149034 Decision Date: 11/08/18 Archive Date: 11/08/18 DOCKET NO. 16-36 225 DATE: November 8, 2018 ORDER Service connection for bilateral hearing loss is granted. Service connection for tinnitus is granted. Prior to September 14, 2016, an initial 10 percent rating, but no higher, for hemorrhoids is granted, subject to the laws and regulations governing the payment of monetary benefits. An initial rating in excess of 10 percent for hemorrhoids is denied. FINDINGS OF FACT 1. The Veteran has a current bilateral hearing loss disability that is related to service. 2. The Veteran’s tinnitus is related to service. 3. For the entire claims period, the Veteran’s hemorrhoids have been with excessive redundant tissue, evidencing frequent recurrences. CONCLUSIONS OF LAW 1. The criteria for service connection for bilateral hearing loss have been met. 38 U.S.C. §§ 1110, 1112, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.385. 2. The criteria for service connection for tinnitus have been met. 38 U.S.C. §§ 1110, 1112, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 3. Prior to September 14, 2016, the criteria for an initial 10 percent rating, but no higher, for hemorrhoids have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.114, Diagnostic Code (DC) 7336. 4. Throughout the appeal period, the criteria for an initial rating in excess of 10 percent for hemorrhoids have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.114, DC 7336. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1970 to August 1972. The case is on appeal from a July 2014 rating decision denying service connection for bilateral hearing loss and tinnitus. With regard to the hemorrhoid rating, in a June 2016 rating decision, service connection was granted effective March 11, 2013. The Veteran noted disagreement with the noncompensable rating assigned and appealed to the Board. In the interim, the rating for hemorrhoids was increased to 10 percent in a January 2017 rating decision effective September 14, 2016. Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. §§ 1110; 38 C.F.R. § 3.303. “To establish a right to compensation for a present disability, a veteran must show: “(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service”—the so-called “nexus” requirement.” Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). For the purposes of applying the laws administered by VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, 4000 Hertz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. 1. Service connection for bilateral hearing loss The Veteran claims that his hearing loss is the result of noise exposure during service. The Veteran’s military occupational specialty (MOS) was atomic demolition, and some hazardous noise exposure has been conceded by VA. The remaining questions are: (1) whether the Veteran has a hearing loss disability under 38 C.F.R. § 3.385 and, if so, (2) whether the Veteran’s hearing loss disability is related to service. The Veteran first underwent a VA hearing loss examination in July 2014. Speech recognition scores were 96 percent bilaterally, and pure tone thresholds were as follows: HERTZ 500 1000 2000 3000 4000 Right 20 15 15 15 20 Left 15 15 15 20 20 A lack of functional limitations due to hearing loss shown on examination was noted. In November 2014, the Veteran underwent private audiological testing by his audiologist, Ms. Dann. Speech recognition scores were 92 percent bilaterally, and pure tone thresholds were as follows: HERTZ 500 1000 2000 3000 4000 Right 20 20 25 25 40 Left 20 20 20 30 40 Most recently a VA hearing loss examination in March 2015. Speech recognition scores were 94 percent in the right ear and 96 percent in the right ear, and pure tone thresholds were as follows: HERTZ 500 1000 2000 3000 4000 Right 15 15 20 20 25 Left 15 20 15 20 20 A lack of functional limitations due to hearing loss shown on examination was noted. Based on the November 2014 private examination, the Board finds that the Veteran has a current hearing loss disability under 38 C.F.R. § 3.385. McClain v. Nicholson, 21 Vet. App. 319 (2007); Romanowsky v. Shinseki, 26 Vet. App. 289 (2013). Specifically, this examination report shows that in each ear there was a pure tone threshold of 40dB at the 4000 Hertz level and speech recognition of 92 percent. Having found a current hearing loss disability, the Board will now proceed to resolve whether the hearing loss disability is related to service. Relevant to this inquiry are the hearing tests upon entry into and at separation from service as well as the three medical opinions are of record, corresponding to the three examinations noted above. Upon entry into service, pure tone thresholds were recorded as follows: 9/1970 500 1000 2000 3000 4000 Right 10 10 5 X 5 Left 10 10 5 X 10 Upon separation from service, pure tone thresholds were as follows: 9/1972 500 1000 2000 3000 4000 Right 10 5 0 X 15 Left 0 0 0 X 10 These results show a minor shift in the pure tone threshold in the right ear at the 4000 Hertz level. The July 2014 VA examiner found that hearing loss was less likely than not related to service. In support, she noted normal hearing upon separation from service and normal hearing test results at the July 2014 VA examination. However, this examiner did not have the benefit of later testing showing a hearing loss disability. The Veteran’s private audiologist in November 2014 opined that his hearing loss was related to military noise exposure. She based this on his case history, configuration of hearing loss, onset of tinnitus, and lack of other post-service exposure. By configuration of hearing loss, the Board interprets the audiologist reason to mean higher pure tone threshold at the 4000 Hertz level as compared with lower Hertz levels. The March 2015 VA examiner opined that hearing loss was less likely than not related to service, as at separation the Veteran’s hearing loss did not meet VA’s definition of a hearing loss disability. She noted that the current literature does not support delayed onset in hearing loss. Rather, hearing loss should occur at the time of exposure. The available anatomical and physiologic evidence suggests that delayed post exposure noise induced hearing loss is not likely. If hearing is normal on discharge and there is no permanent significant threshold shift greater than normal progression and test re-test variability during military service, then there is no basis on which to conclude that a current hearing loss is causally related to military service, including noise exposure. From this she concluded that acoustic trauma in service did not affect future hearing. However, the examiner did not address the November 2014 audiologist’s opinion or whether the threshold shift at the 4000 Hertz level in the right ear during service was a normal progression of hearing loss in this Veteran. As a result, her opinion, while thorough, lacks part of the necessary opinion to be complete and convincing. As a result, the Board finds that only the November 2014 audiologist’s opinion is complete and persuasive. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The private examiner accurately identified a current hearing loss disability, considered the Veteran’s history of acoustic trauma, and noted the Veteran’s pattern of hearing loss in reaching her conclusion. Based on this opinion, the Board finds that hearing loss is at least as likely as not related to service. Service connection for bilateral hearing loss is, therefore, granted. 2. Service connection for tinnitus The Veteran is also claiming service connection for tinnitus. As noted above, in-service acoustic trauma has been conceded by VA based on the Veteran’s MOS. It is also undisputed that the Veteran has a current diagnosis of tinnitus. Thus, the only issue to resolve is whether his tinnitus is related to service. At the July 2014 VA examination, the Veteran denied having tinnitus. In November 2014, the Veteran’s private audiologist opined that tinnitus is related to service. In support, she noted his case history, configuration of hearing loss, and onset of tinnitus. In summarizing the Veteran’s case history, she noted the Veteran’s report of experiencing ringing in his ears after firing weapons during service. At the March 2015 VA examination, the Veteran reported tinnitus onset two years prior, or 2013. Based on the Veteran’s report, lack of complaints of tinnitus during service, and the Veteran’s denying tinnitus during the 2014 VA examination, the examiner opined that tinnitus was less likely than not related to service. The examiner, however, did not consider the Veteran’s November 2014 report of experiencing tinnitus during service. While both the private and VA medical opinions are adequate to adjudicate the claim, the Board finds the private audiologist’s opinion more persuasive. It seems that her opinion was based on, and took into consideration, the Veteran’s lay statement of the onset of ringing in the ears during service and potential noise trauma after service. There is inconsistency in the record as to the onset of tinnitus, and a lingering question of whether the Veteran is reporting that the ringing in the ears has been continuous, or at least periodic, since service rather than having an onset a few years ago after resolving in service. Nonetheless, the Board finds the audiologist’s opinion more persuasive. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Based on the private audiologist’s opinion, the Board finds that the Veteran’s tinnitus is related to service. Therefore, service connection for tinnitus is granted. Increased Rating Ratings are based on a schedule of reductions in earning capacity from specific injuries or combination of injuries. The ratings shall be based, as far as practicable, upon the average impairments of earning capacity resulting from such injuries in civil occupations. 38 U.S.C. § 1155. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1. 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. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. 3. Entitlement to an initial compensable rating for hemorrhoids prior to September 14, 2016, and in excess of 10 percent thereafter The Veteran claims that his hemorrhoid rating does not accurately reflect the severity of his symptoms. Specifically, he believes that a higher rating is warranted based on his pain, discomfort, and the reoccurrence of hemorrhoids leading to multiple removal surgeries. He also states that he scars related to these surgeries and has lost muscle tissue required to control bowel movements. The Veteran’s hemorrhoids are rated under 38 C.F.R. § 4.114, DC 7336 which provides for a 20 percent rating for hemorrhoids, internal or external with persistent bleeding and with secondary anemia, or with fissures; 10 percent for large or thrombotic, irreducible with excessive redundant issues, evidencing frequent recurrences, and a noncompensable rating for mild or moderate hemorrhoids. A March 2014 colonoscopy report includes findings of perianal skin tags and internal hemorrhoids at the left lateral and right posterior. Anorectal bleeding was said to be likely from a small fissure or hemorrhoid not visualized. At an April 2016 VA examination, the Veteran had mild to moderate internal hemorrhoids. One hemorrhoid measuring .7 centimeters by .5 centimeters was noted as well as two smaller skin tags as well as small or moderate external hemorrhoids. A lack of bleeding, fissure, or was noted. An August 2016 VA treatment record notes that the Veteran had three hemorrhoids that needed to be removed. An external hemorrhoid with skin tag without bleeding was also noted. In September 2016, three skin tags ranging from .3 centimeters to 1.5 centimeters were noted. In October 2016, the Veteran had a Grade 3 hemorrhoid removed from the right posterior internal. Grade 2 internal hemorrhoids of the right anterior and left lateral columns were also banded. The hemorrhoids were said to cause discomfort. Later in October, some bleeding and pain were noted, but resolved. In his October 2016 appeal to the Board, the Veteran noted that after his April 2016 VA examination, he had hemorrhoid surgery, resulting in scarring, lost muscle tissue leading to loss of bowel control resulting in bleeding. Therefore, the Veteran was afforded a second VA examination in December 2016. At that time, the examiner noted the recent hemorrhoidectomy and banding in October. He continued to use stool softener. No external hemorrhoids were noted, only skin tags. Excessive redundant tissue was also noted. The symptoms the Veteran reported in October 2016 were not found on examination. The Veteran is competent to report his symptoms. Immediately after surgery, at the time the Veteran reported additional symptoms in his October 2016 appeal to the Board, the Veteran did have rectal bleeding, which is said to have resolved shortly thereafter and not present at the December 2016 VA examination. (Continued on the next page)   Notwithstanding his bleeding, the next higher rating, 20 percent, is written in the conjunctive, requiring hemorrhoids to be both with persistent bleeding and with secondary anemia. There is no anemia reported during the claims period. Further, bleeding has been said to occur periodically, but there is no indication of the bleeding being persistent. Finally, no fissures have been reported. The March 2014 colonoscopy indicated possibility of an unvisualized fissure, but this has not been confirmed upon subsequent evaluations. Rather, the Veteran’s hemorrhoids, as evidence by the need for repeated surgeries and with excessive redundant tissue. They cannot be said, at any time during the appeal period, to be merely mild or moderate. Therefore, a 10 percent rating, but no higher, is granted. C. BOSELY Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. George