Citation Nr: 1806641 Decision Date: 02/01/18 Archive Date: 02/14/18 DOCKET NO. 15-41 654 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Newark, New Jersey THE ISSUES 1. Entitlement to a compensable evaluation for service-connected bilateral hearing loss disability. 2. Entitlement to service connection for a respiratory disability, to include as a result of asbestos exposure. REPRESENTATION Appellant represented by: John P. Dorrity, Agent ATTORNEY FOR THE BOARD K. L. Wallin, Counsel INTRODUCTION The Veteran served on active duty from June 1954 to April 1958. This matter comes before the Board of Veterans' Appeals (Board) on appeal from August 2013 and September 2014 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Newark, New Jersey. In September 2017, the matters were remanded to satisfy an outstanding hearing request. The hearing was scheduled for November 2017. Notice of the hearing was sent to the address of record and was not returned as undeliverable. Regularity of mail is presumed. The Veteran failed to appear. Consequently, there are no outstanding hearing requests of record. 38 C.F.R. § 20.704(d). This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012). The issue of service connection for respiratory disability is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT The evidence of record shows that the Veteran's bilateral hearing loss disability was manifested by no more than Level I hearing acuity in the right ear and no more than Level II hearing acuity in the left ear. CONCLUSION OF LAW The criteria for a compensable disability rating for bilateral hearing loss disability have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.85, 4.86, Diagnostic Code 6100 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION With respect to the Veteran's issue of increased evaluation for bilateral hearing loss, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2017); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule). 38 C.F.R. Part 4 (2017). The Rating Schedule is primarily a guide in the evaluation of disabilities resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. The United States Court of Appeals for Veterans Claims (Court) has held that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505 (2007). Separate evaluations may be assigned for separate periods of time if such distinct periods are shown by the competent evidence of record during the appeal, a practice known as "staged" ratings. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). Evaluations of defective hearing range from noncompensable to 100 percent based on organic impairment of hearing acuity as measured by the results of speech discrimination tests together with the average hearing threshold levels as measured by pure tone audiometry tests in the frequencies 1,000, 2,000, 3,000, and 4,000 Hertz. To evaluate the degree of disability for service-connected hearing loss, the rating schedule establishes 11 auditory acuity levels, designated from Level I through Level XI for profound deafness. 38 C.F.R. § 4.85. Examinations are conducted without the use of hearing aids. 38 C.F.R. § 4.85(a). 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. See Bruce v. West, 11 Vet. App. 405, 409 (1998), quoting Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). When exceptional patterns of hearing impairment exist for VA purposes when the pure tone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) is 55 decibels or more. 38 C.F.R. § 4.86. Then, the rating specialist must 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. § 4.86(a). Additionally, when the puretone threshold is 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hertz, 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. That numeral will then be elevated to the next higher Roman numeral. Each ear will be evaluated separately. 38 C.F.R. § 4.86(b). The Veteran seeks entitlement to a compensable evaluation for bilateral hearing loss disability. A review of the record shows that the currently assigned rating is appropriate and no higher rating is warranted throughout the appeal period. 38 C.F.R. § 4.7. In this regard, the Veteran was afforded a VA audiological examination in May 2013. On the authorized audiological evaluation, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 25 20 30 55 70 LEFT 25 20 30 70 70 The pure tone decibel averages of frequencies 1000, 2000, 3,000, and 4,000 was 44 in the right ear and 48 in the left ear. Speech discrimination was 96 percent in the right ear and 94 percent left ear. Applying the foregoing medical evidence to the rating criteria, the Veteran's right ear is assigned a Level I and the left ear is assigned a Level I designation under Table VI. These categories correspond with a noncompensable disability rating under Table VII. 38 C.F.R. § 4.85, Diagnostic Code 6100. The Veteran's hearing loss disability did not meet the criteria for an exceptional pattern of hearing loss in either ear. 38 C.F.R. § 4.86(a)(b). The Veteran was afforded a VA audiological evaluation in April 2015. Pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 25 25 35 60 75 LEFT 30 25 35 70 75 The pure tone thresholds averages of frequencies 1000, 2000, 3,000, and 4,000 was 49 decibels in the right ear and 51 decibels in the left ear. Speech discrimination was 94 percent in the right ear and 88 percent in the left ear. Applying the foregoing medical evidence to the rating criteria, the Veteran's right ear is assigned a Level I and the left ear is assigned a Level II designation under Table VI. These categories correspond with a noncompensable disability rating under Table VII. 38 C.F.R. § 4.85, Diagnostic Code 6100. The Veteran's hearing loss disability did not meet the criteria for an exceptional pattern of hearing loss in either ear. 38 C.F.R. § 4.86(a)(b). The Veteran was afforded an additional VA audiological evaluation in December 2016. Pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 30 25 40 65 75 LEFT 30 25 40 75 75 The decibel averages of frequencies 1000, 2000, 3,000, and 4,000 was 51 in the right ear and 54 in the left ear. Speech discrimination was 94 percent in the right ear and 88 percent in the left ear. Applying the foregoing medical evidence to the rating criteria, the Veteran's right ear is assigned a Level I and the left ear is assigned a Level II designation under Table VI. These categories correspond with a noncompensable disability rating under Table VII. 38 C.F.R. § 4.85, Diagnostic Code 6100. The Veteran's hearing loss did not meet the criteria for an exceptional pattern of hearing loss in either ear. 38 C.F.R. § 4.86(a)(b). The Board notes that a November 2013 private audiogram was submitted in support of the claim for increase; however, there is no indication that the audiological evaluation was conducted by a state licensed audiologist and without hearing aids. Consequently, it cannot be used in the evaluation of hearing impairment. 38 C.F.R. § 4.85. That aside, any significant shift in hearing impairment on this evaluation is an isolated finding and not supported by the totality of the evidence as examinations both prior to and subsequent to this evaluation show hearing impairment that corresponds with a noncompensable disability rating as delineated above. The Board acknowledges the Veteran's complaints of difficulty hearing clearly. According to the examinations in 2013, 2015, and 2016, the VA audiologists described the functional effects caused by the Veteran's hearing disability. Martinak v. Nicholson, 21 Vet. App. 447, 455-56 (2007). The Veteran reported to the VA examiner in 2013 that he had difficulty understanding conversations clearly. On examination in 2015, the Veteran indicated that he had to often ask people to repeat themselves. In 2016, he told the examiner that he had difficulty hearing in group settings. Regardless of whether this satisfies the requirement in Martinak, the Veteran must demonstrate prejudice due to any examination deficiency, which he has not done in the instant case. Id. The Veteran's statements are competent evidence as to which he has personal knowledge, such as difficulty hearing. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Barr v. Nicholson, 21 Vet. App. 303, 310 (2007); and 38 C.F.R. § 3.159(a)(2) (2017). Nevertheless, as a layperson, without the appropriate medical training and expertise, his statements are not competent evidence to provide a probative opinion on a medical matter, especially the severity of his bilateral hearing loss disability in terms of the applicable rating criteria. Rather, this necessarily requires appropriate medical findings regarding the extent and nature of his bilateral hearing loss, including audiometric testing for puretone thresholds. The record shows the Veteran has been wearing hearing aids for his hearing loss disability; however, this is not a factor in the evaluation of hearing impairment. 38 C.F.R. § 4.85. The Veteran's claim hinges on a mechanical application of specifically defined regulatory standards. The Veteran's hearing difficulties are, however, contemplated by the Rating Schedule. Notably, 38 C.F.R. § 4.85 contemplates any functional loss due to hearing impairment. While there may have been day-to-day fluctuations in the manifestations of the Veteran's service-connected bilateral hearing loss, the evidence shows no distinct periods of time during the appeal period, when the Veteran's service-connected bilateral hearing loss varied to such an extent that a compensable evaluation would be warranted. Hart, supra. Finally, in reaching this decision the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the Veteran's claim for a compensable rating for his service-connected bilateral hearing loss, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to a compensable evaluation for bilateral hearing loss disability is denied. REMAND The Veteran claims that he developed a respiratory disability from in-service exposure to asbestos during his service in the Fleet Marine Force. There are no specific statutory or regulatory criteria governing claims of entitlement to service connection for residuals of asbestos exposure. McGinty v. Brown, 4 Vet. App. 428, 432-33 (1993). Likewise, applicable criteria provide no presumption of service connection for asbestos exposure claims. See Dyment v. West, 13 Vet. App. 141, 145 (1999) (holding that M21-1 does not create a presumption of exposure to asbestos solely from shipboard service). VA has, however, provided guidelines for the adjudication of asbestos exposure claims in the Adjudication Procedure Manual M21-1R (M21-1R), Part IV, Subpart ii, Chapter 1, Section H, Paragraph 29. Additional guidance is found in M21-1R, Part IV, Subpart ii, Chapter 2, Section C, Paragraph 9. These M21-1R guidelines establish claim development procedures which adjudicators are required to follow in claims involving asbestos-related diseases. VAOPGCPREC 4-2000; 65 Fed. Reg. 33422 (2000). Specifically, the manual provides that VA must determine whether military records demonstrate evidence of asbestos exposure in service; whether there is pre-service and/or post-service evidence of occupational or other asbestos exposure; and then make a determination as to the relationship between asbestos exposure and the claimed diseases, keeping in mind the latency and exposure information pertinent to the veteran. M21-1MR IV.ii.2.C.9.h. These guidelines provide that the latency period varies from 10 to 45 years between first exposure and development of the disease. The exposure to asbestos may be brief (as little as a month or two) or indirect (bystander disease). M21-1MR IV.ii.2.C.9.d. VA also recognizes that inhalation of asbestos fibers can produce fibrosis and tumors. The most common disease is interstitial pulmonary fibrosis (asbestosis). Asbestos fibers may also produce pleural effusions and fibrosis, pleural plaques, mesotheliomas of pleura and peritoneum, lung cancer, and cancers of the gastrointestinal tract, larynx, pharynx, and urogenital system (except the prostate). M21-1MR IV.ii.2.C.9.b. VA's Manual also lists some of the common materials that may contain asbestos, including steam pipes for heating units and boilers, ceiling tiles, roofing shingles, wallboard, fire proofing materials, and thermal insulation. M21-1MR IV.ii.2.C.9.a. Some of the major occupations involving exposure to asbestos include mining, milling, shipyard work, insulation work, demolition of old buildings, carpentry and construction, manufacture and servicing of friction products (such as clutch facings and brake linings), and manufacture and installation of products such as roofing and flooring materials, asbestos cement sheet and pipe products, and military equipment. M21-1MR IV.ii.2.C.9.f. Review of military service personnel records show the Veteran's military occupational specialties included wireman, guard, and messman. These records reveal that the Veteran embarked on board the USS Chilton in June 1955, Pvt. Elden H. Johnson in December 1955 and June 1957, the USS Olmsted in August 1957, the USS Westchester County in September 1957, APA 228 in January 1958, and Govt. A/C in February 1958. An attempt to verify whether or not the Veteran was likely exposed to asbestos during such service has not yet been completed. While the RO obtained the Veteran's service personnel records, there was no attempt to verify his claimed asbestos exposure by requesting this information via the Personnel Information Exchange System (PIES) and no other efforts have been undertaken to investigate whether the Veteran's duties during service or the locations where he served would have exposed him to asbestos. There has been no investigation regarding the source of asbestos exposure claimed by the Veteran to have occurred during this assignment. Thus, the RO must investigate the Veteran's claimed exposure to asbestos, as well as document all steps taken to verify any exposure. Thereafter, a VA examination is needed to address the etiology of the Veteran's current respiratory disorder given the Veteran's allegations of service incurrence and chest x-rays dated in March 2005 showing mild interstitial lung disease, March 2014 showing fibrotic changes and pleural thickening, and March 2015 and May 2017 showing chronic atelectasis. McLendon v. Nicholson, 20 Vet. App. 79 (2006). Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. The RO must take appropriate action to develop evidence of whether the Veteran was exposed to asbestos during service, to include requesting information from the appropriate resources regarding his military occupational specialty(ies), assigned duties, and locations of service, particularly while embarking on board the USS Chilton in June 1955, Pvt. Elden H. Johnson in December 1955 and June 1957, the USS Olmsted in August 1957, the USS Westchester County in September 1957, APA 228 in January 1958, and Govt. A/C in February 1958. 2. Thereafter, the RO must obtain a VA medical opinion from an appropriate physician regarding whether any respiratory disorder is related to his military service. The electronic claim file and a copy of this remand must be reviewed by the examiner. All pertinent symptomatology and findings must be reported in detail. Any indicated diagnostic tests and studies must be accomplished. The examiner must review and specifically discuss the Veteran's assertions as to in-service asbestos exposure. After a thorough review of the Veteran's electronic claims file and with consideration of the Veteran's statements, the examiner must provide an opinion as to whether any currently or previously diagnosed respiratory disorder, is related to his military service, to include as due to asbestos exposure. The examiner must also address chest x-rays dated in March 2005 showing mild interstitial lung disease, in March 2014 showing fibrotic changes and pleural thickening, and in March 2015 and May 2017 showing chronic atelectasis. The examiner must provide a complete rationale for all opinions expressed. If the examiner cannot provide the requested opinion without resorting to speculation, it must be so stated, and the examiner must provide the reasons why an opinion would require speculation. The examiner must indicate whether there was any further need for information or testing necessary to make a determination. The examiner must indicate whether an opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular examiner. 3. The examination report must be reviewed to ensure it is in complete compliance with the directives of this remand. If a report is deficient in any manner, the RO must implement corrective procedures. If upon completion of the above action the claims remain denied, the case should be returned to the Board after compliance with appellate procedures. The Veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This appeal must be afforded expeditious treatment. The law requires that all issues that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (2012). ______________________________________________ E. I. VELEZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs