Citation Nr: 18156683 Decision Date: 12/10/18 Archive Date: 12/10/18 DOCKET NO. 16-58 653A DATE: December 10, 2018 ORDER Entitlement to service connection for Crohn’s disease is denied. Entitlement to a compensable disability rating for service-connected bilateral hearing loss is denied. REMANDED Entitlement to service connection for pancreatic cancer, to include as due to herbicide exposure, is remanded. FINDINGS OF FACT 1. Crohn’s disease has not been shown to exist at any time during the pendency of the appeal. 2. For the period on appeal, audiometric testing showed hearing of, at worst, Level I in the right ear and Level I in the left ear. CONCLUSIONS OF LAW 1. The criteria for service connection for Crohn’s disease have not been met. 38 U.S.C. §§ 1110, 1310, 5103, 5103A, 5106, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310. 2. The criteria for a compensable evaluation for service-connected bilateral hearing loss are not met. 38 U.S.C. §§ 1154(a), 1155, 5107(b); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.85, 4.86, Diagnostic Code 6100. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 1967 to August 1970. He died in October 2016; the Appellant is his surviving spouse and is substituted for the Veteran. 1. Entitlement to service connection for Crohn's Disease During his lifetime, the Veteran contended that service connection is warranted for Crohn’s disease. The existence of a current disability is the cornerstone of a claim for VA disability compensation. 38 U.S.C. §§ 1110, 1131; Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992) (with the absence of proof of a present disability there can be no valid claim). At the very least, the evidence must show that, at some point during the appeal period the Veteran has the disability for which benefits are being claimed. McClain v. Nicholson, 21 Vet. App. 319 (2007) reflects that a claim for service connection may be granted if a diagnosis of a chronic disability was made during the pendency of the appeal, even if the most recent medical evidence suggests that the disability resolved. The claim in this case was received in February 2014. In this case, the Veteran reported a history of being diagnosed with Crohn’s disease in 1985. During the February 2015 VA examination, the Veteran stated that he underwent surgery at that time and was completely cured of his Crohn’s disease. The examiner opined that the Veteran’s Crohn’s disease was less likely than not related to military service because a 2014 colonoscopy was normal and did not indicate an active disease. See August 2014 Surgery Clinic Note (remote history of Crohn’s; most recent colonoscopy normal); September 2014 Hematology Oncology Consult Result (history of Crohn’s disease was cured); December 2014 Nursing Outpatient Medication Management Note (no Crohn’s disease symptoms since 1985). While the examiner did indicate that the Veteran had had Crohn’s disease in the past, there was no indication of a current disease process on examination. The Board notes that the Veteran, during his lifetime, was competent to report on matters observed or within his personal knowledge. Layno v. Brown, 6 Vet. App. 465, 470 (1994). However, in this case, the Veteran was not shown to possess any pertinent medical training or credentials that made him competent to diagnose himself with Crohn’s disease, or to identify any symptoms as residuals of that condition. Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Furthermore, the Board finds that the Veteran’s lay statements about the onset and etiology of his Crohn’s disease have minimal probative value because they directly contradict the other lay evidence of record, in which the Veteran denied having a current diagnosis. Notably, the Veteran, himself, consistently reported that his Crohn’s disease had not been active since 1985. See e.g. February 2014 Primary Care Note (Crohn’s disease healed through faith); February 2015 VA Examination (completely cured following surgery in 1985). Accordingly, the Board finds that the preponderance of the evidence is against the claim for service connection for Crohn’s disease. At no time during the pendency of the appeal has a diagnosis of this disability been shown. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt rule does not apply, and the claim of entitlement to service connection for Crohn’s disease, is denied. See 38 U.S.C. § 5107. 2. Entitlement to a compensable disability rating for service-connected bilateral hearing loss Disability evaluations are determined by the application of a schedule of ratings which is based on the average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R., Part 4. Separate diagnostic codes identify the various disabilities. 38 C.F.R. § 4.1 requires that each disability be viewed in relation to its history and that there be emphasis upon the limitation of activity imposed by the disabling condition. 38 C.F.R. § 4.2 requires that medical reports be interpreted in light of the whole recorded history, and that each disability must be considered from the point of view of the veteran working or seeking work. 38 C.F.R. § 4.7 provides that, where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. In general, to evaluate the degree of disability from defective hearing, the Rating Schedule establishes eleven auditory acuity levels from Level I for essentially normal acuity through Level XI for profound deafness. 38 C.F.R. §§ 4.85, 4.87, Tables VI, VIa, VII. Organic impairment of hearing acuity is measured by the results of controlled speech discrimination tests together with the average hearing threshold level as measured by a pure tone audiometry test in the frequencies of 1,000, 2,000, 3,000, and 4,000 cycles per second. See 38 C.F.R. § 4.85(a), (d). Ratings of hearing loss disability involve mechanical application of the rating criteria to the findings on official audiometry. See Lendenmann v. Principi, 3 Vet. App. 345 (1992). The schedular evaluations are intended to make proper allowance for improvement by hearing aids. 38 C.F.R. § 4.86. Exceptional patterns of hearing impairment are rated under 38 C.F.R. § 4.86. Specifically, an exceptional pattern of hearing loss is hearing loss of 55 decibels or more in each of the four specified frequencies (i.e. 1000, 2000, 3000, and 4000 Hertz), and hearing loss with a pure tone threshold of 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hertz. 38 C.F.R. § 4.86(a), (b). In this case, the Veteran seeks entitlement to a compensable disability rating for bilateral hearing loss. The Veteran underwent a VA audiological examination in February 2015. The examination revealed the following puretone thresholds, in decibels: 500 Hz 1000 Hz 2000 Hz 3000 Hz 4000 Hz Right Ear 25 15 20 20 45 Left Ear 25 15 15 25 45 The Veteran’s puretone threshold averages (for the 1000-4000 Hertz frequencies) were 25 decibels in the right ear and 25 decibels in the left ear. Speech recognition was 100 percent in the right ear and100 percent in the left ear. Application of the results from the February 2015 VA examination to Table VI in 38 C.F.R. § 4.85 yields findings of Level I hearing loss in the right ear and Level I hearing loss in the left ear. Where hearing loss is at Level I in the worse right ear and Level I in the better left ear, a noncompensable evaluation is assigned under Table VII. 38 C.F.R. § 4.85. The Veteran also underwent a VA audiological examination in May 2016. The examination revealed the following puretone thresholds, in decibels: 500 Hz 1000 Hz 2000 Hz 3000 Hz 4000 Hz Right Ear 25 25 25 30 50 Left Ear 20 20 20 30 45 The Veteran’s puretone threshold averages were 32.5 decibels in the right ear and 28.75 decibels in the left ear. Speech recognition was 100 percent in the right ear and 100 percent in the left ear. The examiner diagnosed the Veteran with bilateral sensorineural hearing loss. Application of the results from the May 2016 VA examination to Table VI in 38 C.F.R. § 4.85 yields findings of Level I hearing loss in the right ear and Level I hearing loss in the left ear. Where hearing loss is at Level I in the worse right ear and Level I in the better left ear, a noncompensable evaluation is assigned under Table VII. 38 C.F.R. § 4.85. Upon review of all the evidence of record, the Board finds that, for the period on appeal, the evidence of record does not reflect that the Veteran’s bilateral hearing loss disability manifested in more than Level I hearing impairment of the right ear and Level I hearing impairment of the left ear. In addition, puretone thresholds at each of the four specified frequencies were not 55 decibels or more in a VA examination report of both ears; as such, an exceptional pattern of hearing impairment was not shown. As such, a compensable rating for the appeals period is not warranted. The Board is mindful that an audiologist must provide a description of the functional effects caused by a hearing loss disability. In addition to dictating objective test results, a VA audiologist must fully describe the functional effects caused by a hearing disability in the report. Martinak v. Nicholson, 21 Vet. App. 447, 455 (2007). The February 2015 and May 2016 examiners stated that the Veteran had difficulty hearing in situations with background noise. The Board finds that this is sufficient to comply with the applicable VA policies. Martinak, 21 Vet. App. at 447. Additionally, the Board has considered various lay statements from the Veteran attesting to the impact of his hearing loss. It is noted that the Veteran reported trouble with his hearing and ability to understand others in crowded situations. The Board finds that these functional effects of the Veteran’s bilateral hearing loss disability were, during his lifetime, consistent with the objectively shown degree of hearing loss and fully contemplated by the assigned evaluation. To the extent that the Veteran reported during his lifetime that his hearing acuity was worse than evaluated, the Board has considered his statements. This evidence is both competent and credible in regard to reporting worsening hearing acuity. However, far more probative of the degree of the disability are the results of testing prepared by skilled professionals since the schedular criteria are predicated on audiological findings rather than subjective reports of severity of hearing loss. In essence, lay statements are of limited probative value. As a layperson, the Veteran was competent to report difficulty with his hearing; however, he was not competent to assign particular speech recognition scores or pure tone decibel reading to his current acuity problems. As indicated above, ratings of hearing loss disability involve mechanical application of the rating criteria to the findings on official audiometry. See Lendenmann, 3 Vet. App. at 345. The Board notes that neither the Appellant nor her representative has raised any other issues, nor have any other issues, including a claim for a total disability rating based upon individual unemployability, been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366 (2017). REASONS FOR REMAND 1. Entitlement to service connection for pancreatic cancer, to include as due to herbicide exposure is remanded. The Board notes that the Veteran was not afforded a VA examination or medical opinion for his claim of entitlement to service connection for pancreatic cancer during his lifetime. VA’s duty to assist includes providing a medical examination (or opinion, as warranted) when it is necessary to decide a claim. McLendon v. Nicholson, 20 Vet. App. 79 (2006); see also 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159. In this case, although service treatment records are silent as to any diagnosis or treatment for pancreatic cancer during the Veteran’s active duty service, the Board finds that there is competent evidence that his claimed disability may be related to service. See e.g., October 2016 Dr. M.D.R. Correspondence; December 2016 VA Form 9. As such, the Board finds it necessary to remand this issue to obtain a VA etiology opinion to determine the etiology of this disorder. McLendon, 20 Vet. App. at 79. The matter is REMANDED for the following action: 1. Contact the Appellant and request authorization to obtain any outstanding records pertinent to her claims, including any private treatment records following proper VA procedures (38 C.F.R. § 3.159(c)). 2. After completing the requested development, obtain a VA medical opinion to address the nature and etiology of the Veteran’s pancreatic cancer. The examiner must review the claims folder, including this remand, and this fact must be noted in the accompanying medical reports. Based upon a review of the claims file, the medical professional must answer the following question: Is it at least as likely as not (a fifty percent probability or greater) that the Veteran’s pancreatic cancer began in service or is otherwise related to a disease, event, or injury in service, to include herbicide exposure? In making a determination, the examiner should consider the October 2016 Dr. M.D.R. Correspondence. The examiner must provide a rationale for the medical opinion provided. The examiner is also advised that the Veteran was competent to report his symptoms and history, and such reports must be specifically considered in formulating any opinions. If the examiner rejects the Veteran’s contentions, the examiner must provide reasons for doing so. (Continued on the next page)   The absence of evidence of treatment for pancreatic cancer in the Veteran’s service treatment records cannot, standing alone, be a sufficient rationale for providing a negative opinion. A. C. MACKENZIE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD C. Mukherjee, Associate Counsel