Citation Nr: 18158611 Decision Date: 12/17/18 Archive Date: 12/17/18 DOCKET NO. 16-54 578 DATE: December 17, 2018 ORDER Entitlement to an initial compensable disability rating for hearing loss prior to May 23, 2016 is denied. Entitlement to an initial disability rating in excess of 30 percent for hearing loss on and after May 23, 2016 is denied. REMANDED Entitlement to service connection for a colon disorder (claimed as colon problem and polyps in colon), to include as due to contaminated water at Camp Lejeune, is remanded. Entitlement to service connection for neurobehavioral effects, to include as due to contaminated water at Camp Lejeune, is remanded. FINDINGS OF FACT 1. Prior to May 23, 2016, the Veteran had no worse than Level I hearing loss for the right and left ear. 2. On and after May 23, 2016, the Veteran had no worse than Level VI hearing loss for the right and left ear. CONCLUSIONS OF LAW 1. Prior to May 23, 2016, the criteria for an initial compensable disability rating for hearing loss have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.1-4.14, 4.21, 4.85, 4.86, Diagnostic Code 6100. 2. On and after May 23, 2016, the criteria for an initial disability rating in excess of 30 percent for hearing loss have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.1-4.14, 4.21, 4.85, 4.86, Diagnostic Code 6100. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service in the United States Marine Corps from June 1969 to March 1970. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a July 2015 rating decision. The July 2015 rating decision granted entitlement to service connection for hearing loss and assigned an initial noncompensable rating effective from January 8, 2014. During the pendency of the Veteran’s appeal, an October 2016 Decision Review Officer (DRO) decision increased the disability rating to 30 percent effective from May 23, 2016. As the maximum benefit was not granted, the issue remains in appellate status. See AB v. Brown, 6 Vet. App. 35 (1993). I. Duties to Notify and Assist The Board notes that the Veteran has indicated that a July 2015 VA examination that evaluated his hearing loss was inadequate. See November 2015 Notice of Disagreement. As explained in greater detail below, the record does not support the Veteran’s contention that the examination is inadequate. The examination was predicated on a review of the Veteran's medical history as well as on an examination, and it fully addressed the rating criteria that are relevant to rating the Veteran's hearing loss. Neither the Veteran nor his representative has raised any other issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board.”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). 1. Entitlement to an initial compensable disability rating for hearing loss prior to May 23, 2016, and in excess of 30 percent on and after May 23, 2016. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (rating schedule), found in 38 C.F.R. Part 4. Disability ratings are intended to compensate impairment in earning capacity due to a service connected disorder. 38 U.S.C. § 1155. The evaluation of a service-connected disorder requires a review of a veteran's entire medical history regarding that disorder. 38 U.S.C. § 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589 (1991). When a reasonable doubt arises regarding the degree of disability, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Evidence to be considered in an appeal from an initial disability rating was not limited to that reflecting the then current severity of the disorder. Fenderson v. West, 12 Vet. App. 119 (1999). In cases where an initially assigned disability evaluation has been disagreed with, it is possible for a veteran to be awarded separate percentage evaluations for separate periods based on the facts found during the appeal period. Fenderson, 12 Vet. App. at 126-27; Hart v. Mansfield, 21 Vet. App. 505 (2007). Such separate disability ratings are known as staged ratings. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 54-55 (1990). The Veteran's hearing loss has been assigned a noncompensable evaluation prior to May 23, 2016, and a 30 percent evaluation on and after May 23, 2016. 38 C.F.R. § 4.85, Diagnostic Code 6100. Although the July 2015 rating decision characterized the disability as hearing loss rather than bilateral hearing loss, it is clear from the record that the grant of service connection contemplated hearing loss in both the left and right ear. See July 2015 VA examination. In evaluating service-connected hearing loss, disability ratings are derived by a mechanical application of the rating schedule to the numeric designations assigned after audiometric evaluations are performed. Lindenmann v. Principi, 3 Vet. App. 345, 349 (1992). Evaluations of bilateral hearing loss range from noncompensable to 100 percent based on an organic impairment of hearing acuity, as measured by controlled speech discrimination tests in conjunction with the average hearing threshold, as measured by puretone audiometric tests in the frequencies of 1000, 2000, 3000, and 4000 cycles per second. The rating schedule establishes 11 auditory acuity Levels designated from Level I for essentially normal hearing through Level XI for profound deafness. VA audiological evaluations are conducted using a controlled speech discrimination test together with the results of puretone audiometry tests. The vertical line in Table VI (printed in 38 C.F.R. § 4.85) represents nine categories of decibel I loss based on the puretone audiometry test. The numeric designation of impaired hearing (Levels I through XI) is determined for each ear by intersecting the vertical row appropriate for the percentage of discrimination and the horizontal column appropriate to puretone decibel loss. The percentage evaluation is found from Table VII (in 38 C.F.R. § 4.85 and the statement of the case) by intersecting the vertical column appropriate for the numeric designation for the ear having the better hearing acuity and the horizontal row appropriate for the numeric designation of the level for the ear having the poorer hearing acuity. For example, if the better ear had a numeric designation of Level "V," and the poorer ear had a numeric designation of Level "VII," the percentage evaluation is 30 percent. 38 C.F.R. § 4.85. Regulations also provide that in cases of exceptional hearing loss, i.e., when the puretone threshold at each of the four specified frequencies (1,000, 2,000, 3,000, and 4,000 hertz) is 55 decibels or more, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or Table VIa, whichever results in the higher numeral. Each ear will be evaluated separately. 38 C.F.R. § 4.85(a). The provisions of 38 C.F.R. § 4.86(b) further provide that when the puretone threshold is 30 decibels or less at 1,000 hertz and 70 decibels or more at 2,000 hertz, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or VIa, whichever results in the higher numeral. That numeral will then be evaluated to the next higher Roman numeral. The Veteran was provided with a VA examination related to his hearing loss in July 2015. The audiological evaluation revealed that the Veteran’s pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 Average RIGHT 30 65 70 65 56.25 LEFT 25 55 60 65 51.25 Speech audiometry using the Maryland CNC word list revealed a speech recognition ability of 96 percent bilaterally. Under Table VI, these values have a numeric designation of I for the right and left ear. However, Table VII reflects that a noncompensable evaluation is appropriate for this combination of numerals. On May 23, 2016, an additional VA examination concerning the Veteran’s hearing loss was conducted. The audiological evaluation showed that the Veteran’s pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 Average RIGHT 35 70 75 75 63.75 LEFT 30 60 65 70 56.25 Speech audiometry using the Maryland CNC word list revealed a speech recognition ability of 60 percent bilaterally. Based on these values, Table VI provides that a numeral of VI should be assigned for the right and left ear. However, this paring of numerals results in no higher than a 30 percent evaluation under Table VII. In reviewing the results from the July 2015 and May 2016 VA examinations, the Board has also considered whether Table VIa could be used to obtain a higher numeric designation for either ear. The Board notes that Table VIa assigns a Roman numeral designation for hearing impairment based only on the puretone threshold average, and is used when the examiner certifies that speech discrimination testing is not appropriate, or when indicated under the provisions of 38 C.F.R. § 4.86. 38 C.F.R. § 4.85(c). However, the examiners did not include a certification stating that use of a speech discrimination test was inappropriate. In addition, the evaluations did not show that the Veteran's puretone threshold at each of the four specified frequencies was 55 decibels or more. 38 C.F.R. § 4.86(a). The record also does not reflect that the Veteran had a puretone threshold of 30 decibels or less at 1,000 Hertz and 70 decibels or more at 2,000 Hertz in the right or left ear. 38 C.F.R. § 4.86(b). Consequently, the record does not indicate that Table VIa should be used. Regarding the Veteran’s contention that the July 2015 VA examination is inadequate, the Veteran reported that the examiner told him to push a button regardless of whether he heard anything during the audiological testing. See November 2015 Notice of Disagreement. The Veteran requested a new VA examination, but he did not report that his hearing had worsened since the July 2015 VA examination. In response to his request, the May 2016 VA examination was conducted. The Board notes that it is presumed that the July 2015 VA examiner, an audiologist, was qualified to perform the examination and performed the examination in an appropriate manner. See Rizzo v. Shinseki, 580 F.3d 1288, 1292 (Fed. Cir 2009) (confirming that the presumption of regularity not only applies to procedural matters, but also applies to the competency of medical professionals). Clear evidence to the contrary is required to rebut the presumption of regularity. See Ashley v. Derwinski, 2 Vet. App. 307 (1992) (quoting United States v. Chemical Foundation, 272 U.S. 1, 14-15 (1926)). A statement of a claimant, standing alone, is not sufficient to rebut the presumption of regularity. See Jones v. West, 12 Vet, App. 98, 100 (1998); Ashley, 2 Vet. App. at 64-65. In this regard, the Veteran did not specifically identify which test results from July 2015 were compromised by the reported instruction from the examiner. The examination report also fails to suggest that any findings were inaccurate. The July 2015 VA examiner documented that the puretone test results were valid for rating purposes, and the use of a word recognition score was appropriate for the Veteran’s right and left ear. Moreover, a comparison of the findings from the July 2015 and May 2016 VA examinations does not show that the July 2015 audiological testing results are invalid. The Board notes that there appeared to be a slight worsening in the puretone thresholds documented in May 2016, and the Veteran had a lower speech discrimination score during this examination. However, the potential significance of the variation between the audiological test results noted in July 2015 and May 2016 is diminished by the Veteran’s report that the severity of his hearing loss was not the same during both examinations. He informed the May 2016 VA examiner that his hearing had declined since his last evaluation. Consequently, the Board does not find that the Veteran has demonstrated that the July 2015 audiologist was unqualified or that the record contains clear evidence to support the Veteran’s assertion of an inadequate examination protocol that rendered the results unreliable. See generally Sickels v. Shinseki, 643 F.3d 1362 (Fed. Cir. 2011). Therefore, the Board finds that the July 2015 VA examiner adhered to standard regulations and procedures in performing the examination to determine the severity of the Veteran's hearing loss. The regulations also provide that consideration of whether special monthly compensation (SMC) is warranted is required when evaluating any claim for impaired hearing. See 38 C.F.R. § 4.85(g). Certain levels of SMC may be awarded for deafness. However, the SMC criteria require bilateral deafness or some other service-connected disability, such as blindness, which do not apply to the Veteran's case. 38 U.S.C. § 1114; 38 C.F.R. § 3.350. Therefore, SMC is not warranted for the Veteran's bilateral hearing loss. Based on the foregoing, the Board finds that the Veteran is not entitled to a compensable evaluation for his hearing loss prior to prior to May 23, 2016, or an evaluation in excess of 30 percent on and after May 23, 2016. The Board has considered the Veteran's lay assertions regarding the impact of his diminished hearing on his daily life. The Veteran reported that as a result of his hearing loss, he found it difficult to be aware of his surroundings at work for safety purposes. See July 2015 VA examination. He also reported having difficulty understanding speech if the person was not speaking clearly, or if he was in the presence of background noise. See May 2016 VA examination. However, the assignment of disability ratings for hearing impairment are derived by a mechanical application of the Rating Schedule to the numeric designations based on the audiology examination results. See Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). The Rating Schedule reflects that a higher rating can be awarded only when loss of hearing has reached a specified measurable level. Consequently, a compensable evaluation is not warranted prior to May 23, 2016, and an evaluation greater than 30 percent is not appropriate on and after May 23, 2016. As the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable. See 38 U.S.C. § 5107(b); Gilbert, 1 Vet. App. at 54-55. REASONS FOR REMAND 1. Entitlement to service connection for a colon disorder (claimed as colon problem and polyps in colon), to include as due to contaminated water at Camp Lejeune; and entitlement to service connection for neurobehavioral effects, to include as due to contaminated water at Camp Lejeune, are remanded. The Veteran contends that he has a colon disorder and neurobehavioral effects as a result of his in-service exposure to contaminated water at Marine Corps Base Camp Lejeune. He has not yet been provided with a VA examination or medical opinion regarding these claims. The impression from a June 2010 private colonoscopy report suggests that the Veteran has pandiverticulosis, and the Veteran has indicated that he experiences persistent symptoms of neurobehavioral effects. As the Veteran’s military personnel and service treatment records show that he had active service at Camp Lejeune from August 31, 1969 to October 18, 1969, he is presumed to have been exposed to contaminants in the water supply during service. 38 C.F.R. § 3.307(a)(7)(iii). Although these disorders are not presumptively associated with exposure to contaminated water at Camp Lejeune under 38 C.F.R. § 3.307(f), the Board must also determine whether service connection is warranted on a direct basis. See Combee v. Brown, 24 F.3d 1039 (Fed. Cir. 1994). The Veteran indicated that his doctor told him that his colon problems were due to parasites in well water, and that this information demonstrates the association between his colon problems and the contaminated water at Camp Lejeune. See November 2015 Notice of Disagreement. The Board also notes that 2009 findings from the National Research Council stated that various disease conditions, including neurobehavioral effects, have a limited/suggestive association to certain contaminants found in water supplies at Camp Lejeune. See VBA Training Letter 11-03 (April 27, 2011). The Board finds that this evidence meets the low threshold to secure a VA medical examination and opinion to determine the nature and etiology of any current colon disorders and neurobehavioral effects. See McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). Further, the Board is prohibited from relying on its own unsubstantiated medical judgment in the resolution of a claim. See Colvin v. Derwinski, 1 Vet. App. 171 (1991). The matters are REMANDED for the following action: The AOJ should request that the Veteran provide the names and addresses of any and all health care providers who have provided treatment for his colon disorder and neurobehavioral effects. The AOJ should also secure any outstanding, relevant VA medical records. 1. After completing the preceding development in paragraph 1, schedule the Veteran for a VA examination to determine the nature and etiology of any colon disorder that may be present. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran's service treatment records, post-service medical records, and assertions. A clear explanation for all opinions based on specific facts of the case as well as relevant medical principles is needed. The Veteran is competent to attest to observable symptoms. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. The examiner should also note that the Veteran is presumed to have been exposed to contaminants in the water supply at Camp Lejeune during service. The examiner should identify all current colon disorders. For each identified disorder, the examiner should opine as to whether it is at least as likely as not (a 50 percent or greater probability) that the disorder manifested during, or is otherwise related to, active service, to include his exposure to contaminants in the water supply while stationed at Camp Lejeune (notwithstanding the fact that it may not be a presumed association). In providing an opinion, the examiner should address the Veteran’s November 2015 notice of disagreement in which he reported being informed by his doctor that his colon problems were related to parasites in well water. 2. After completing the preceding development in paragraph 1, schedule the Veteran for a VA examination to determine the nature and etiology of any neurobehavioral effects that may be present. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran's service treatment records, post-service medical records, and assertions. A clear explanation for all opinions based on specific facts of the case as well as relevant medical principles is needed. The Veteran is competent to attest to observable symptoms. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. The examiner should also note that the Veteran is presumed to have been exposed to contaminants in the water supply at Camp Lejeune during service. The examiner should identify all current neurobehavioral effects. For each identified neurobehavioral effect, the examiner should opine as to whether it is at least as likely as not (a 50 percent or greater probability) that the disorder manifested during, or is otherwise related to, active service, to include his exposure to contaminants in the water supply while stationed at Camp Lejeune (notwithstanding the fact that it may not be a presumed association). In providing an opinion, the examiner should address the National Research Council's 2009 findings that neurobehavioral effects have a limited/suggestive etiological relationship to such chemical exposure. GAYLE STROMMEN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD K.C. Spragins, Associate Counsel