Citation Nr: 20003548 Decision Date: 01/16/20 Archive Date: 01/15/20 DOCKET NO. 16-42 053 DATE: January 16, 2020 ORDER Entitlement to a rating higher than 20 percent prior to May 7, 2019 and a rating higher than 40 percent since May 7, 2019, for bilateral hearing loss is denied. Entitlement to service connection for a skin disorder, to include as due to herbicide agent and/or toxic chemical exposure, is denied. FINDINGS OF FACT 1. Prior to May 7, 2019, the Veteran’s bilateral hearing loss disability has been manifested by loss of hearing acuity measured at no worse than Level VI in the right ear and Level V in the left ear. 2. Since May 7, 2019, the Veteran’s bilateral hearing loss disability has been manifested by loss of hearing acuity measured at no worse than Level VII, bilaterally. 3. The Veteran did not serve on active duty in the Republic of Vietnam and is not presumed to have been exposed to herbicide agents such as Agent Orange. 4. The Veteran’s skin disorder was not manifest during service or for many years thereafter, and the competent and credible evidence fails to establish an etiological relationship between the Veteran's claimed disability and his active service, to include exposure to herbicide agents and/or toxic chemicals. CONCLUSIONS OF LAW 1. The criteria for a rating higher than 20 percent prior to May 7, 2019, and a rating higher than 40 percent since May 7, 2019, for bilateral hearing loss have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.86, Diagnostic Code 6100 (2018). 2. A skin disorder was not incurred in or aggravated by service, to include herbicide agent and/or toxic chemical exposure, and may not be presumed related to a service-connected disability. 38 U.S.C. §§ 1110, 1111, 1131, 1132, 5103(a), 5103A (2012); 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from June 1951 to June 1955 and from October 1961 to September 1962. These matters are on appeal from May 2013 and September 2014 rating decisions. In January 2018, these matters were remanded for further development. The claim for service connection for a stomach disorder was granted in a June 2019 rating decision. The Veteran did not disagree with the disability evaluation or the effective date assigned. Therefore, this matter is no longer considered to be in appellate status. During the pendency of the appeal for a higher rating for bilateral hearing loss, a July 2019 rating decision, granted a 40 percent evaluation, effective May 7, 2019, the date of the most recent VA examination. As the higher rating does not represent a grant of the maximum benefits allowable under the VA Schedule for Rating Disabilities, the Veteran’s appeal remains for Board consideration. AB v. Brown, 6 Vet. App. 35, 38 (1993) (holding that a grant of a higher rating during the course of an appeal, but less than the maximum benefits allowable, does not abrogate the appeal). Increased Rating Claim Disability ratings are determined by the application of the VA’s Schedule for Rating Disabilities. Separate diagnostic codes identify the various disabilities, which are based, as far as practically can be determined, on average impairment in earning capacity. 38 U.S.C. § 1155 (2012); 38 C.F.R. Part 4 (2018). When rating a service-connected disability, the entire history must be borne in mind. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The Board will also consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the course of the claim on appeal. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Where there is a question as to which of two ratings shall be applied, the higher rating 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 (2018). Reasonable doubt regarding the degree of disability will be resolved in the Veteran’s favor. 38 C.F.R. § 4.3 (2018). In view of the number of atypical instances it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified. Findings sufficiently characteristic to identify the disease and the disability therefrom, and above all, coordination of rating with impairment of function will, however, be expected in all instances. 38 C.F.R. § 4.21 (2018). At the time of an initial rating, separate ratings can be assigned for separate periods of time based on facts found, a practice known as “staged” ratings. Fenderson v. West, 12 Vet. App. 119, 126 (1999). The evaluation of the same disability under various diagnoses, known as pyramiding, is generally to be avoided. 38 C.F.R. § 4.14 (2018). The critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the disabilities is duplicative or overlapping with the symptomatology of the other disability. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). The Veteran contends that his service-connected bilateral hearing loss is more severe than his 20 percent rating prior to May 7, 2019, and 40 percent rating since May 7, 2019, would indicate. Disability ratings for hearing impairment are derived by a mechanical application of the rating schedule to the numeric designations assigned after audiometric evaluations are made. Bruce v. West, 11 Vet. App. 405 (1998); Lendenmann v. Principi, 3 Vet. App. 345 (1992). The regulations set forth eleven auditory acuity levels, designated from Roman numerals I to XI, in escalating order of hearing impairment. 38 C.F.R. § 4.85 (2018). The appropriate auditory acuity level is determined based on a combination of the percentage of speech discrimination and the puretone threshold average. Additional considerations apply when exceptional patterns of hearing loss are demonstrated, which are defined as either a) puretone averages of 55 or greater at 1000, 2000, 3000, and 4000 Hertz, or; b) a puretone threshold of 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hertz. 38 C.F.R. § § 4.86 (a) (2018). Once an acuity level is established for each ear, Table VII, Percentage Evaluations for Hearing Impairment, is used to determine the appropriate disability evaluation. The appropriate rating is determined based on a combination of the levels of hearing impairment established for each ear. Hearing loss disabilities are rated by application of a mechanical process that is explained here. Initially, VA must determine the Roman numerical designation for the degree of hearing impairment in each ear based upon a combination of the percent of speech discrimination and the pure tone threshold average. 38 C.F.R. § 4.85. In general, the Roman numerical designation is determined through application of 38 C.F.R. § 4.85 (h), Table VI. Under Table VI, the horizontal rows represent eight separate ranges of pure tone threshold averages, as demonstrated through audiometric testing for the frequencies at 1000, 2000, 3000, and 4000 Hertz. The average pure tone threshold is calculated by determining the sum of the pure tone thresholds demonstrated at the four aforementioned frequencies and dividing that sum by four. The vertical columns under Table VI represent nine separate ranges of speech discrimination percentage, as determined through Maryland CNC testing. The Roman numerical designation of impaired efficiency is determined for each ear by intersecting the horizontal row appropriate for the calculated pure tone threshold average and the vertical column appropriate for the demonstrated percentage of speech discrimination. 38 C.F.R. § 4.85 (b) (2018). Table VIA, which assigns a Roman numeral designation based solely on the puretone threshold average, is used when the examiner certifies that use of the speech discrimination test is not appropriate because of language difficulties, inconsistent speech discrimination scores, etc. 38 C.F.R. § 4.85 (c). In addition, where audiometric testing reveals an exceptional pattern of hearing impairment, Roman numerical designations may be determined under 38 C.F.R. § 4.85 (h), Table VIA (2018). Pursuant to 38 C.F.R. § 4.86, an exceptional pattern of hearing impairment exists where audiometric testing reveals either: (1) pure tone thresholds of 55 decibels or more at each of the frequencies at 1000, 2000, 3000, and 4000 Hertz; or (2) a pure tone threshold at 30 decibels or less at 1000 Hertz and 70 decibels or greater at 2000 Hertz. 38 C.F.R. §§ 4.85 (h); 4.86 (2018). After the Roman numerical designation has been determined for each ear, VA then determines the appropriate disability rating through application of 38 C.F.R. § 4.85 (h), Table VII (2018). Table VII is applied by intersecting the appropriate horizontal row (which represents the Roman numerical designation for the poorer ear) with the appropriate vertical column (which represents the Roman numerical designation for the better ear). 38 C.F.R. § 4.85 (e) (2018). In Martinak v. Nicholson, 21 Vet. App. 447 (2007), the Court held that in addition to dictating objective test results, a VA audiologist must fully describe the functional effects caused by a hearing disability in his or her final report. Martinak, 21 Vet. App. at 455. The Court also noted, however, that even if an audiologist’s description of the functional effects of the veteran’s hearing disability was somehow defective, the veteran bears the burden of demonstrating any prejudice caused by a deficiency in the examination. Id. Turning to the merits of the claim, on May 2013 VA hearing loss and tinnitus Disability Benefits Questionnaire (DBQ) examination, puretone thresholds for the right ear, in decibels, at 1000, 2000, 3000, and 4000 Hz were as follows: 35, 45, 55, and 55 decibels; the average puretone decibel loss was 48 decibels. The pure tone thresholds for the left ear, in decibels, at 1000, 2000, 3000, and 4000 Hz as follows: 40, 55, 45, and 65 decibels; the average puretone decibel loss was 51 decibels. The CNC word list speech recognition score was 76% in the right ear and 72% in the left ear. Under Table VI, these audiometric findings correspond to Level III hearing loss in the right ear and Level V in the left ear. Those Roman numerical designations equate to a 20 percent disability rating under Table VII. Regarding the functional impact of the bilateral hearing loss disability, the Veteran reported difficulty with understanding speech. He stated that it sounded like people were mumbling. VA treatment records include a June 2013 report which shows that he was fit with two half-shell hearing aids. On April 2014 VA hearing loss and tinnitus DBQ examination puretone thresholds for the right and left ear, in decibels, at 1000, 2000, 3000, and 4000 Hz were as follows: 45, 55, 60, and 65 decibels; the average puretone decibel loss, bilaterally, was 56 decibels. The CNC word list speech recognition score was 64% in the right ear and 76% in the left ear. Under Table VI, these audiometric findings correspond to Level VI hearing loss in the right ear and Level IV in the left ear. Those Roman numerical designations equate to a 20 percent disability rating under Table VII. Regarding the functional impact of the bilateral hearing loss disability, the Veteran stated that he had difficulty hearing in all listening situations if he was not wearing his hearing aids. On March 2015 VA hearing loss and tinnitus DBQ examination, puretone thresholds for the right ear, in decibels, at 1000, 2000, 3000, and 4000 Hz were as follows: 45, 55, 60, and 65 decibels; the average puretone decibel loss was 56 decibels. The pure tone thresholds for the left ear, in decibels, at 1000, 2000, 3000, and 4000 Hz as follows: 45, 60, 65, and 70 decibels; the average puretone decibel loss was 60 decibels. The CNC word list speech recognition score was 60% in the right ear and 68% in the left ear. Under Table VI, these audiometric findings correspond to Level VI hearing loss in the right ear and Level V in the left ear. Those Roman numerical designations equate to a 20 percent disability rating under Table VII. Regarding the functional impact of the bilateral hearing loss disability, the Veteran stated that he had difficulty understanding what people were said and asked people to repeat themselves. On May 2019 VA hearing loss and tinnitus DBQ examination, puretone thresholds for the right ear, in decibels, at 1000, 2000, 3000, and 4000 Hz were as follows: 50, 55, 55, and 65 decibels; the average puretone decibel loss was 56 decibels. The pure tone thresholds for the left ear, in decibels, at 1000, 2000, 3000, and 4000 Hz as follows: 55, 55, 70, and 75 decibels; the average puretone decibel loss was 64 decibels. The CNC word list speech recognition score was 52% in the right ear and 56% in the left ear. Under Table VI, these audiometric findings correspond to Level VII hearing loss, bilaterally. Those Roman numerical designations equate to a 40 percent disability rating under Table VII. Regarding the functional impact of the bilateral hearing loss disability, the Veteran stated that it made communication and following directions difficult. Daily life impacts included communicative difficulty, particularly in noise. It was noted that he was retired. He complained that he had difficulty in communication, especially in noise environments. Applying the relevant rating criteria, the Board notes that a rating higher than 20 percent prior to May 7, 2019, and a rating higher than 40 percent since 40 percent, for the Veteran’s bilateral hearing loss is not warranted. The Board is mindful that an audiologist must provide a description of the functional effects caused by a hearing loss disability. Martinak v. Nicholson, 21 Vet. App. 447 (2007). On May 2013, April 2014, March 2015, and May 2019 VA examination, the Veteran complained of difficulty understanding speech, hearing without hearing aids, and in hearing in noisy environments. The Board finds these comments are sufficient to comply with the applicable VA policies. Id. The Board notes that the Veteran is competent to report complaints such as difficulty hearing as this observation comes to him through his senses. Layno v. Brown, 6 Vet. App. 465, 469 (1994). The Board also acknowledges the Veteran’s belief that his symptoms are of such severity as to warrant a higher rating and has taken these contentions seriously. In this regard, the Veteran, through his representative, contends that since the 2015 and 2019 VA hearing loss and tinnitus examinations are similar and his hearing loss has remained constant, a 40 percent rating is warranted prior to and since May 7, 2019. See December 2019 Brief. However, neither the Veteran or his representative is competent to identify a specific level of disability of his bilateral hearing loss according to the appropriate diagnostic code. On the other hand, such competent evidence concerning the nature and extent of the Veteran’s bilateral hearing loss has been provided by the examining VA audiologists who have rendered pertinent opinions in conjunction with the evaluations. The medical findings (as provided in the examination reports) directly addresses the criteria under which this disability is evaluated. Finally, neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 369-370 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). Service Connection Claim The Veteran contends that he has a skin disability that is related to his service, including exposure to herbicide agents and/or toxic chemicals during his active service. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303 (a). Service connection requires competent evidence showing: (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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995). In addition, certain diseases, such as malignant tumors, are presumed to have been incurred in service if manifested to a compensable degree within one year after service. The presumption is rebuttable by probative evidence to the contrary. 38 U.S.C. §§ 1101, 1112, 1113 (2012); 38 C.F.R. §§ 3.307, 3.309(a) (2018). When chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support a claim for such diseases. 38 C.F.R. § 3.303 (b); see Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Diseases associated with exposure to certain herbicide agents used in support of military operations in the Republic of Vietnam (Vietnam) during the Vietnam era will be considered to have been incurred in service. 38 U.S.C. § 1116 (a)(1). The presumption requires exposure to an herbicide agent and manifestation of the disease to a degree of 10 percent or more within the time period specified for each disease. 38 C.F.R. § 3.307 (a)(6)(ii). However, basal and squamous cell carcinoma are not diseases presumptively related to herbicide agent exposure under 38 C.F.R. § 3.309 (e) (2018); see Notice, 75 Fed. Reg. 168, 53202-16 (Aug. 31, 2010). Moreover, although the Veteran contends that he was exposed to herbicide agents and/or toxic chemicals, he does not contend, nor does the evidence show that he served in Vietnam at any point during his periods of active service. Accordingly, the presumption of herbicide exposure does not apply. See 38 C.F.R. § 3.307. Next, where the evidence does not warrant presumptive service connection, the United States Court of Appeals for the Federal Circuit has determined that an appellant is not precluded from establishing service connection with proof of direct causation. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). Accordingly, the Board will still consider whether entitlement to service connection can be granted on a direct basis for a skin disorder to include skin cancer. The Board acknowledges that with the exception of a June 1955 separation examination, the STRs are fire-related and unavailable. The Veteran was notified of this in a January 2013 letter. However, the Board observes that the Veteran’s claim is ultimately being denied based on the lack of a medical nexus between his service and his current disability, not solely on a lack of evidence of in-service complaints of a skin disorder. Hence, the lack of a complete copy of his STRs is not prejudicial in the instant case. The Court has held that in cases where records once in the hands of the government are lost, the Board has a heightened obligation to explain its findings and conclusions and to consider carefully the benefit-of-the-doubt rule. O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). The Board’s analysis has been undertaken with this heightened duty in mind. The case law does not, however, lower the legal standard for proving a claim for service connection, but rather increases the Board’s obligation to evaluate and discuss in its decision all of the evidence that may be favorable to the Veteran. Russo v. Brown, 9 Vet. App. 46 (1996). Turning to the merits of the claim, private treatments include a March 2011 operative report which indicates a diagnosis of basal cell carcinoma. A March 2012 frozen tissue section report indicates diagnoses of squamous cell carcinoma and irritated seborrheic keratosis. Pursuant to the January 2018 remand, on May 2019 VA skin diseases DBQ examination, the examiner diagnosed skin cancer of the head in 2017. The course was described as 20 years ago left side of the neck developed a knot. It was removed by a physician, but he continued to have new spots on both arms and another area was removed in January 2019. He complained of a new spot on the left side of his face which was scheduled to be removed. The original skin cancer was diagnosed around 1997. In a May 2019 VA medical opinion, the VA examiner opined that the claimed skin disability was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The rationale was that the Veteran had issues related to the claimed skin cancer prior to service. However, the examiner also stated that the onset of the condition was in 1997 and that there was evidence of current chronic and continuous treatment and care. In a July 2019 addendum opinion request, the AOJ asked the examiner to review the conflicting medical evidence. Specifically, the examiner was asked to clarify when the cancer was first diagnosed and state whether it was prior to service; explain if the current chronic and continuous treatment and care had been manifested since March 2011; if the new spot on the left side of his face manifested since March 14, 2011 and if it is related to his service; and to state the significance, if any, of the Veteran’s claims that he was exposed to toxic chemicals during his period of service. In response to the AOJ’s request, in an August 2019 addendum opinion a second VA examiner reviewed the claims file and conflicting medical evidence and opined that the claimed skin cancer was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. In the rationale, he explained that the onset of the Veteran’s skin cancer was following service and that there was no evidence of chronic and continuous treatment and care since March 2011. He further explained that there was no objective evidence of skin cancer occurring prior to March 2011 or objective evidence of exposure to toxic chemicals during service which would be expected to cause skin cancer. This addendum cures the deficiencies found in the May 2019 VA medical opinion and raised by the Veteran and his representative. See, December 2019 Brief. The Board finds that the claim must be denied. There is no competent medical evidence to show that the Veteran has any skin disorder, including skin cancer, that is related to his service. Moreover, the post-service records do not reflect a diagnosis of any skin disorder until March 2011. The mere absence of medical records does not contradict a Veteran's statements about his symptom history. See Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006). However, if it is determined based upon reliable evidence that there was an extended period of time after service without any manifestations of the claimed condition, then that tends to weigh against a finding of a connection between the disability and service. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). In this case, the earliest post-service medical evidence of any skin disorder, to include skin cancer is over 48 years after service. This long period without problems weighs against the claim. Continuity of symptomatology has not been established, either through the competent evidence of record or through the Veteran’s statements. Finally, there is no competent medical evidence to that the Veteran has any skin disorder that is related to his service. The Board has taken the contention that the Veteran’s claimed skin disorder was caused by his service seriously (this was the basis of the Board’s remand in order to address this medical question). In this regard, the Board finds that the VA medical examination and opinions concerning the etiology of the Veteran’s skin disorder provide highly probative and overwhelming evidence against this claim. The August 2019 VA examiner considered the Veteran’s documented and reported history and reviewed the May 2019 VA examination report. He opined that the Veteran’s currently diagnosed skin disorder is not related to his service. Therefore, the May 2019 VA examination and August 2019 addendum provide probative evidence against the Veteran’s claim of high probative weight. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The Board has also closely reviewed the medical and lay evidence in the Veteran’s claims file and finds no evidence that may serve as a medical nexus between the Veteran’s service and his claimed disability. Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), the specific issue in this case, the etiology of a skin disorder, falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer). In light of the above, the Board finds that the weight of the probative evidence is against a finding that the Veteran has a skin disorder that is related to the Veteran’s active service. Accordingly, service connection for a skin disorder, including skin cancer, must be denied. KELLI A. KORDICH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Adams, Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.