Citation Nr: 21063507 Decision Date: 10/14/21 Archive Date: 10/14/21 DOCKET NO. 16-50 165 DATE: October 14, 2021 ORDER Service connection for hemorrhoids is granted. A compensable disability rating for bilateral hearing loss is denied. REMANDED Entitlement to service connection for right upper extremity carpal tunnel syndrome, to include as secondary to service-connected disability, is remanded. Entitlement to service connection for left upper extremity carpal tunnel syndrome, to include as secondary to service-connected disability, is remanded. Entitlement to service connection for left hip disability, to include as secondary to service-connected disability, is remanded. Entitlement to service connection for right hip disability, to include as secondary to service-connected disability, is remanded. Entitlement to service connection for left knee disability, to include as secondary to service-connected disability, is remanded. Entitlement to service connection for an eye disability is remanded. FINDING OF FACT 1. Hemorrhoids were not noted on examination at the Veteran's entry into active service in February 1981. 2. The evidence of record does not establish that hemorrhoids clearly and unmistakably preexisted this period of active service. 3. Resolving any reasonable doubt in favor of the Veteran, his current hemorrhoids were at least as likely as not manifest during his period of active service and have continued to the present. 4. The Veteran's bilateral hearing has been manifested by hearing acuity of no worse than Level I in both ears. CONCLUSION OF LAW 1. The criteria for service connection for hemorrhoids are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for a compensable rating for bilateral hearing loss are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.85, 4.86, Diagnostic Code 6100. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from February 1981 to March 1984. These matters come before the Board of Veterans' Appeals (Board) on appeal from rating decisions by a Department of Veterans Affairs (VA) Regional Office (RO). These issues were remanded in August 2019 for additional development. The case is again before the Board for appellate review. Service Connection Hemorrhoids A Veteran is considered to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at entrance into service, or where clear and unmistakable (obvious or manifest) evidence demonstrates that an injury or disease existed prior thereto and was not aggravated by such service. 38 U.S.C. § 1111; 38 C.F.R. § 3.304(b). Here, the Veteran's February 1981 enlistment examination reflected no diagnosis of hemorrhoids. His contemporaneous enlistment Report of Medical History reflects his report that he did not have piles or rectal disease. As a result, the Board finds the presumption of soundness on entry to service attaches with respect to hemorrhoids. See Smith v. Shinseki, 24 Vet. App. 40, 45 (2010). To rebut the presumption of sound condition under 38 U.S.C. § 1111, VA must show by clear and unmistakable evidence both that the disease or injury existed prior to service and that the disease or injury was not aggravated by service. In this case, the only evidence that suggests hemorrhoids pre-existed service is the Veteran's own lay statements. The Board finds this evidence does not rise to the level of showing by clear and unmistakable evidence that the disability pre-existed the Veteran's entrance into military service. Accordingly, the presumption of soundness has not been rebutted in this case and the salient question is not one of aggravation of a pre-existing condition, but rather one of direct service connection. The Veteran has a current diagnosis of hemorrhoids. The Veteran's service treatment records do not reflect treatment for a diagnosis of hemorrhoids; however, he has credibly reported that he has had hemorrhoids intermittently since at least his time in service. See May 2015 Surgical General Surgery Consult. Thus, the Board finds after resolving any benefit of reasonable doubt in favor of the Veteran that the evidence establishes the Veteran's current hemorrhoids were at least as likely as not manifest during his period of active service and have continued to the present. Thus, the Board finds service connection for hemorrhoids has been established. Increased Rating - Hearing Loss The Veteran contends that he is entitled to a higher rating for his service-connected bilateral hearing loss. Evaluations of defective hearing range from noncompensable to 100 percent based on organic impairment of hearing acuity as measured by the results of a controlled Maryland CNC speech discrimination test together with the average hearing threshold level measured by pure tone audiometry tests in the frequencies of 1000, 2000, 3000, and 4000 cycles per second (Hertz). 38 C.F.R. § 4.85, Diagnostic Code 6100. To evaluate the degree of disability from bilateral service-connected hearing loss, the schedule establishes 11 auditory hearing acuity levels designated from Level I for essentially normal hearing acuity through Level XI for profound deafness. 38 C.F.R. § 4.85, Tables VI and VII. An exceptional pattern of hearing impairment occurs 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(a). In that situation, 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. Further, when the average pure tone 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, and that numeral will then be elevated to the next higher numeral. 38 C.F.R. § 4.86(b). A January 2014 VA examination reveals that the Veteran reported difficulty hearing in most situations with background noise. He is told he has the radio or television volume too high. 38 C.F.R. § 4.10; Martinak v. Nicholson, 21 Vet. App. 447 (2007). The Veteran's Maryland CNC Word List speech recognition score and pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 Avg CNC RIGHT 55 45 50 45 49 94 LEFT 15 15 10 15 14 94 A September 2015 VA examination reveals that the Veteran reported that he was informed that he talked too loudly, and that he had to turn the television volume up high to hear it. 38 C.F.R. § 4.10; Martinak v. Nicholson, 21 Vet. App. 447 (2007). The Veteran's Maryland CNC Word List speech recognition score and pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 Avg CNC RIGHT 40 35 35 35 36 96 LEFT 15 10 15 15 14 94 A September 2015 VA examination reveals that the Veteran reported that he had difficulty hearing from his right ear especially if the left is on a pillow when laying down. 38 C.F.R. § 4.10; Martinak v. Nicholson, 21 Vet. App. 447 (2007). The Veteran's Maryland CNC Word List speech recognition score and pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 Avg CNC RIGHT 50 45 35 50 45 94 LEFT 20 25 30 25 25 96 Applying the results to Table VI, the findings yield a numeric designation of Level I in both ears at each examination. Entering these designations in to 38 C.F.R. § 4.85, Table VII, equates to a noncompensable disability rating under Diagnostic Code 6100. An exceptional pattern of hearing impairment under 38 C.F.R. § 4.86 was not shown. Based on the evidence above, a compensable rating for the Veteran's bilateral hearing loss is not warranted. The Board expressly acknowledges its consideration of the lay evidence of record when adjudicating this claim. The Veteran is competent to report difficulty with his hearing; however, disability ratings for hearing loss are derived from a mechanical application of the rating schedule to the numeric designations resulting from audiometric testing. See Lendenmann v. Principi, 3 Vet. App. 345 (1992). The rating criteria contemplate speech reception thresholds and ability to hear spoken words on Maryland CNC testing. The functional impact that the Veteran describes, is contemplated by the rating criteria. Doucette v. Shulkin, 28 Vet. App. 366 (2017). The Veteran's main complaint is reduced hearing acuity and clarity, which is what is contemplated in the rating assigned. See Rossy v. Shulkin, 29 Vet. App. 142, 145 (2017). Accordingly, the preponderance of the most probative evidence is against the claim of entitlement to a compensable rating for hearing loss. In reaching the conclusion above, the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the Veteran's claim, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND Carpal Tunnel Syndrome, Right and Left Upper Extremities The Veteran contends that his right and left carpal tunnel syndrome is related to service or to a service-connected disability. The Board's August 2019 remand directives included to provide the Veteran with a VA examination to determine whether the Veteran's carpal tunnel syndrome was at least as likely as not incurred in or due to his active duty or was caused or aggravated by a service-connected disability. The Board noted in the remand that the Veteran served on active duty with a Military Occupational Specialty (MOS) of Cargo Specialist for two years and nine months, and that it was reasonable to conclude from the Veteran's MOS that he regularly engaged in rigorous activities, including lifting and carrying. In addition, it was noted that the Veteran had undergone surgery on his left shoulder that may have aggravated his left carpal tunnel syndrome. Pursuant to the Board's remand, the Veteran was provided with a VA examination in January 2020. The examiner diagnosed bilateral carpal tunnel syndrome. The examiner noted that there are no service treatment records that reference right upper extremity carpal tunnel while in service, and that records in his claims file reflect that he was diagnosed with left carpal tunnel syndrome in 2011. She concluded that "[t]hus a nexus is not established." With regard to whether the Veteran's carpal tunnel syndrome was related to a service-connected disability, she opined that it was not medically related to his service-connected conditions. With regard to aggravation, the examiner did not indicate whether it was as likely as not that a service-connected disability had aggravated the Veteran's carpal tunnel syndrome but did note that his electromyography (EMG) results between 2011 and 2012 had not shown any aggravation. The Board finds that this opinion is inadequate for the following reasons. First, the examiner did not provide a rationale for her opinions regarding direct service connection and secondary service connection based on causation. In addition, with regard to the opinion on aggravation, the examiner did not explain why she based her finding that there was no aggravation on EMG results only and not on the Veteran's reported symptom throughout the appeals period. As such, on remand, another opinion should be obtained, with an examination if necessary, that addresses these issues. Right and Left Hip and Left Knee Disorders In its August 2018 remand, the Board found that an April 2015 opinion with regard to whether the Veteran's right and left hip and left knee disabilities were secondary to his bilateral pes planus was inadequate. In finding that there was no nexus, the examiner had opined that Veteran's service-connected pes planus and his bilateral hip and left knee disabilities were separate entities and were not medically related and noted that the medical literature did not support a medical relationship. The examiner did not provide an opinion with regard to whether the Veteran's service-connected pes planus had aggravated a right or left hip or left knee disability. The Board specifically noted that the Veteran did not assert, and the evidence did not support, that his bilateral hip or left knee disorders were related directly to service. Pursuant to the Board's remand directives, the Veteran was provided with another VA examination in January 2020. The examiner diagnosed osteoarthritis of both hips and degenerative arthritis of the left knee. She opined that there was no service-connected condition that would medically lead to aggravation of hip or knee conditions. However, she did not opine as to causation, and did not address whether his service-connected pes planus caused alterations in the Veteran's gait that could have caused or aggravated his hip or knee disorder. In addition, the examiner did not provide a rationale for her opinion. As such, another opinion, with an examination if necessary, should be obtained as to address these issues. Eye Disability In its August 2019 remand, the Board noted that the evidence of record included a current diagnosis of glaucoma and an indication of an association between the Veteran's in-service complaints of blurred vision and the feeling that his eyes were closing involuntarily and his current disability. The Board remanded for a VA examination to determine whether his current glaucoma was related to service. The examination was provided in January 2020. The examiner diagnosed glaucoma, pinguecula, and nuclear sclerosis. He noted that a 1983 service treatment record reflected the Veteran's report of a history of trauma due to a motor vehicle accident in 1980 that required sutures on the left. The examiner opined that the motor vehicle accident "in 1983" did explain the involuntary closing of the left eye but did not explain the current bilateral glaucoma. The examiner noted that the Veteran's visual acuity was 20/20 at entrance and at separation. He opined that his glaucoma, nuclear sclerosis, pinguecula, and dry eye syndrome were all less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The Board finds that this examination is inadequate, for the following reasons. The examiner did not provide a rationale for his opinion that the Veteran's left eye closing was due to his motor vehicle accident. In fact, the examiner appeared to confuse the dates of the accident, at one point noting that it occurred prior to service in 1980 and at another point referring to it as if it occurred in 1983 while in service. In addition, beyond noting the Veteran's visual acuity at entrance and separation, the examiner did not provide a rationale for his determination that his diagnosed eye disorders were not related to service. He did not address the Veteran's in-service reported of blurred vision or his report at separation of slightly decreased visual acuity. The Board notes that a November 1983 reflects complaints of symptoms in the left eye only; however, a December 1983 record reflects his reports of blurred vision and his "eyes keep wanting to close up." As such, this opinion is inadequate. On remand, another opinion should be obtained, with an examination if necessary, to address these issues. The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination for bilateral carpal tunnel syndrome. The examiner must review the claims file. The examiner is asked to provide a response to the following: Is right or left carpal tunnel syndrome at least as likely as not related to service, including rigorous activities, including lifting and carrying, associated with his MOS of Cargo Specialist for two years and nine months? Is right or left carpal tunnel syndrome at least as likely as not proximately due to a service-connected disability, specifically to include the Veteran's service-connected left shoulder disability? Is right or left carpal tunnel syndrome at least as likely as not aggravated, i.e., worsened beyond its natural progression, by a service-connected disability, specifically to include the Veteran's service-connected left shoulder disability? If the Veteran's current right or left carpal tunnel syndrome has been aggravated by a service-connected disability, the examiner should also indicate the extent of such aggravation by identifying the baseline level of disability. This may be ascertained by the medical evidence of record and also by the Veteran's statements as to the nature, severity, and frequency of his observable symptoms over time. 2. Schedule the Veteran for a VA examination for his right and left hip and left knee disabilities. The examiner must review the claims file. The examiner is asked to provide a response to the following: Are the Veteran's right and left hip and left knee disabilities at least as likely as not proximately due to service-connected pes planus, to include any alteration in gait due to such disability? Are the Veteran's right and left hip and left knee disabilities at least as likely as not aggravated, i.e., worsened beyond its natural progression, by pes planus, to include any alteration in gait due to such disability? If the Veteran's current right and left hip and left knee disabilities has been aggravated by his service-connected pes planus, to include any alteration in gait due to such disability, the examiner should also indicate the extent of such aggravation by identifying the baseline level of disability. This may be ascertained by the medical evidence of record and also by the Veteran's statements as to the nature, severity, and frequency of his observable symptoms over time. 3. Schedule the Veteran for a VA examination for his eye disability. The examiner must review the claims file. The examiner is asked to provide an opinion as to whether his diagnosed glaucoma, nuclear sclerosis, piguecula, or dry eye syndrome are at least as likely as not related to service, including symptoms endorsed during service, including blurred vision, his eyes involuntarily closing up, blurred vision and left eye constriction and slightly decreased visual acuity reported at his January 1984 report of medical history. Provide a rationale to support the opinion(s). L. M. BARNARD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Harrigan Smith 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.