Citation Nr: 21063535 Decision Date: 10/14/21 Archive Date: 10/14/21 DOCKET NO. 16-53 799A DATE: October 14, 2021 ORDER Entitlement to service connection for bilateral hearing loss is granted. Entitlement to service connection for hypertension, to include as due to exposure to herbicides, is granted. Entitlement to an initial rating in excess of 20 percent, to include extraschedular consideration, for residuals of shrapnel wound to left ankle is denied. REMANDED Entitlement to service connection for a skin rash, to include as due to exposure to herbicides, is remanded. FINDINGS OF FACT 1. The Veteran is a Vietnam combat Veteran and was exposed to excessive noise during service, as well as tactical herbicides. 2. The Veteran's bilateral hearing loss is due to his military service. 3. The Veteran's hypertension is etiologically related to service. 4. Throughout the appellate period, the Veteran's residuals of shrapnel wound to left ankle has been manifested by no worse than marked limitation of motion. 5. The schedular criteria fully contemplate manifestations and the Veteran's complaints with regard to his residuals of shrapnel wound to left ankle; extraschedular evaluation is not warranted. CONCLUSIONS OF LAW 1. The criteria for service connection for bilateral hearing loss are met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.303, 3.304, 3.385. 2. The criteria for service connection for hypertension are met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307. 3.309. 3. The criteria for an evaluation in excess of 20 percent for residuals of shrapnel wound to left ankle are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1 4.7, 4.21, 4.40, 4.44, 4.45, 4.59, 4.71a, Diagnostic Code 5003, 5271. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from April 1966 to June 1968. The Veteran is the recipient of a Combat Infantryman Badge and a Purple Heart, among other awards. The Veteran had active service in the Republic of Vietnam and his exposure to herbicide agents, to include Agent Orange, has previously been established. These matters come before the Board of Veterans' Appeals (Board) on appeal from a September 2014 rating decision by the agency of original jurisdiction (AOJ) of the United States Department of Veterans Affairs (VA). The Veteran testified at a July 2020 hearing held before the undersigned Veterans Law Judge (VLJ). A transcript of the hearing is associated with the claims file. The matters were previously before the Board in December 2020, at which time they were remanded for additional development. Duty to Assist With respect to the Veteran's claims decided herein, 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; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326. Neither the Veteran nor his representative has advanced any procedural arguments in relation to VA's duty to notify and assist. See Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015) (holding that "absent extraordinary circumstances...we think it is appropriate for the Board and the Veterans Court to address only those procedural arguments specifically raised by the veteran...."). Service Connection Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service. 38 U.S.C. §§ 1110, 1131. Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In order to establish service connection on a direct basis, the record requires competent evidence showing: (1) the existence of a present disability; (2) in service incurrence or aggravation of an injury or disease; 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). In the absence of proof of a present disability there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Some chronic diseases may be presumed to have been incurred in service, if they become manifest to a degree of ten percent or more within the applicable presumptive period. 38 U.S.C. §§ 1101(3), 1112(a); 38 C.F.R. §§ 3.307(a), 3.309(a). For those listed chronic conditions, a showing of continuity of symptoms affords an alternative route to service connection. 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F. 3d 1331 (Fed. Cir. 2013). Organic diseases of the nervous system, including sensorineural hearing loss is a listed condition, with a presumptive period of one year following separation from service. In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. Hearing Loss As a combat Veteran, noise exposure as alleged in service is established. For the purposes of applying the laws administered by VA, impaired hearing will be considered a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz (Hz) is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. The requirements of section 3.385 need only be met for the purposes of showing a current "disability" for service connection purposes. The Veteran's separation physical examination report included in his service treatment records (STRs) notes bilateral neurosensory hearing loss, though the recorded audiometry does not meet the criteria for a VA hearing loss disability. Additionally, the Board notes there were increases in puretone thresholds in all frequencies over the course of service. The Veteran underwent a VA hearing loss examination in June 2014 which demonstrated puretone thresholds, in decibels, as follows: HERTZ 1000 2000 3000 4000 Average RIGHT 20 25 25 35 26 LEFT 25 25 25 35 28 Speech audiometry testing revealed speech recognition of 96 percent in the right ear and 94 percent in the left ear. The Veteran reported that was exposed to combat noise in service including mortars, machine guns, booby traps, and weapons fire without the use of hearing protection. He denied a history of post service nonmilitary, recreational or occupational noise exposure. However, based on these audiometric findings, the Veteran did not meet the criteria for a disability for VA purposes and service connection for hearing loss was denied. At his July 2020 hearing, the Veteran testified that his hearing had worsened since his last VA examination in 2014. The issue was remanded by the Board for a new VA hearing loss examination. The Veteran underwent a VA hearing loss examination in March 2021 which demonstrated puretone thresholds, in decibels, as follows: HERTZ 1000 2000 3000 4000 Average RIGHT 30 40 40 35 36 LEFT 30 40 35 40 36 Speech audiometry testing revealed speech recognition of 100 percent in each ear. Based on VA examination findings dated March 2021, the Veteran has a current hearing disability for VA purposes under 38 C.F.R. § 3.385. The Veteran reported that he has had hearing problems since combat service. The Board finds the statements of the Veteran competent and credible evidence of a continuity of hearing loss since his combat service. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). All puretone thresholds increased during service, consistent with the lay reports. The onset of current hearing loss is documented in service and has now progressed to a current disability. Accordingly, a nexus to service is established, and service connection for bilateral hearing loss is warranted. Hypertension The Veteran has a diagnosis of hypertension, establishing the presence of a current disability. In its December 2020 remand, the Board noted that the Veteran had not been afforded a VA hypertension examination. The issue was remanded for an examination and an opinion as to whether it was at least as likely as not that the Veteran's hypertension was caused or aggravated by service, to include as due to Agent Orange. The remand directives specified that the recent National Academies of Sciences, Engineering, and Medicine (NAS) 2018 findings indicating a potential link between herbicide agent exposure and hypertension was to be discussed. In May 2021, the Veteran was afforded a VA contract hypertension examination. The VA contract examiner confirmed the Veteran's diagnosis of hypertension and found that it was less likely than not that the Veteran's hypertension was incurred in or caused by service. The examiner stated, "Literature has showed that there is limited evidence of a link between hypertension and agent orange. However, hypertension is currently not on the list of presumptive diseases caused by Agent Orange. In addition, veteran's diagnosis of hypertension was decades after separation. Therefore, there is not enough evidence to confirm that veteran's diagnosis of hypertension is caused by agent orange." The Board finds this opinion is inadequate as it relied at least in part on the fact that hypertension is not a listed presumptive condition and because it failed to consider the NAS 2018 findings as was directed in its December 2020 remand instructions. Instead, the examiner used secondary sources, such as VA sites discussing herbicide studies. The Board takes judicial notice of a November 2018 National Academy of Sciences Engineering and Medicine (NAS) update. The NAS update moved hypertension to the category of "sufficient" evidence of an association from its previous classification in the "limited or suggestive" category, indicating that "there is enough epidemiologic evidence to conclude that there is a positive association" between hypertension and herbicide exposure. NAS, Veterans and Agent Orange: Update 11 (2018). This directly contradicts the statement of the VA examiner regarding the literature. While the laws and regulations pertaining to herbicide agent exposure do not require VA to consider NAS reports in adjudicating individual claims, given that the NAS reports are published by VA in the Federal Register "VA is on notice as to the information contained therein." Euzebio v. McDonough, 989 F.3d 1305 (2021) (finding that constructive possession requires that the evidence be relevant and reasonably connected to the claim; it does not require that the evidence be specific to the claimant or have a direct relationship to the claim). Thus, the NAS report is constructively before the Board. As the sole opinion of record regarding a nexus between hypertension and herbicides is inadequate, and the remaining evidence of record, particularly the Update 2018 study, favors the claim, the preponderance of the evidence requires an award of service connection for hypertension. Increased Rating Disability evaluations are determined by the application of the facts presented to VA's Schedule for Rating Disabilities (Rating Schedule) at 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321 (a), 4.1. In evaluating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary importance. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Separate ratings may be assigned for separate periods of time based on the facts found, however. This practice is known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119, 126 - 127 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). If the evidence for and against a claim is in equipoise, the claim will be granted. A claim will be denied only if the preponderance of the evidence is against the claim. See 38 U.S.C. § 5107 (2012); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). Any reasonable doubt regarding the degree of disability should be resolved in favor of the claimant. 38 C.F.R. § 4.3. Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When evaluating musculoskeletal disabilities, VA may, in addition to applying schedular criteria, consider granting a higher rating in cases in which the claimant experiences additional functional loss due to pain, weakness, excess fatigability, or incoordination, to include with repeated use during flare-ups, and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202, 204-7 (1995). Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also include statements conveying sound medical principles found in medical treatises. It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). Competent lay evidence is any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2). This may include some medical matters, such as describing symptoms or relating a contemporaneous medical diagnosis. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). A layperson is generally not capable of opining on matters requiring medical knowledge. The Veteran is seeking an evaluation in excess of 20 percent, to include extraschedular consideration, for residuals of shrapnel wound to left ankle. This disability is currently evaluated under 38 C.F.R. § 4.71a, Diagnostic Code 5003- 5271. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the evaluation assigned; the additional code is shown after the hyphen. 38 C.F.R. § 4.27. Diagnostic Code 5003 pertains to degenerative arthritis pine and Diagnostic Code 5271 pertains to the ankle. Code 5003 formerly was assigned to evaluate arthritis, degenerative (hypertrophic or osteoarthritis. 38 C.F.R. § 4.71a, Code 5257. Code 5003 is now assigned to evaluate Degenerative arthritis, other than posttraumatic. The rating criteria remain unchanged; degenerative arthritis that is established by x-ray finding will be rated on limitation of motion under the appropriate Codes for the specific joint or joints involved. When, however, the limitation of motion of the specific joint or joints involved is noncompensable, a rating of 10 percent is assigned for each major joint or group of minor joints affected by limitation of motion. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. In the absence of limitation of motion, a single 10 percent rating is assigned for involvement of two or more major joints or two or more minor joint groups. 38 C.F.R. § 4.71a, Code 5003. Code 5271 pertains to limitation of motion of the ankle. Moderate limitation of motion of the ankle is assigned a 10 percent evaluation. A 20 percent evaluation is assigned for marked limitation of motion of the ankle. The words "moderate" and "marked" as used in various Diagnostic Codes are not defined in the VA Schedule for Rating Disabilities. Rather than applying a mechanical formula, the Board must evaluate all the evidence, to the end that its decisions are "equitable and just." 38 C.F.R. § 4.6. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6. The standard ranges of motion of the ankle are zero to 45 degrees ankle plantar flexion and zero to 20 degrees ankle dorsiflexion. 38 C.F.R. § 4.71a, Plate II. The Veteran was afforded a VA ankle examination in September 2014. The VA examiner noted the Veteran's diagnosis of status post shrapnel wound left ankle with osteoarthritis. Subjective complaints included lack of motion in his left ankle since Vietnam and that the ankle has "gotten worse." The Veteran did not report experiencing flare-ups which impacted function of his left ankle. Left ankle plantar flexion was to 20 degrees, with no objective evidence of painful motion. Left ankle dorsiflexion was to 5 degrees with no objective evidence of painful motion. Right ankle ranges of motion were normal. Repetitive use testing revealed no additional limitation of motion. Functional loss, functional impairment and/or additional limitation of range of motion after repetitive use was described as less movement than normal and stiffness on dorsiflexion and plantar flexion of left ankle. No localized tenderness or pain on palpation of the ankle was noted. Muscle strength testing was 5 out of 5 for ankle plantar flexion and dorsiflexion, bilaterally. No joint instability or ankylosis of the left ankle was noted. The Veteran did not use any assistive devices as a normal mode of locomotion. X-rays taken in conjunction with the examination revealed a small metallic smooth margined radiopacity 0.9 cm in length and 0.2 cm in short axis dimension projected over the soft tissue of the medial malleolus of the left ankle. At his July 2020 hearing, the Veteran testified that his left ankle symptoms had worsened. He stated that he experiences a lack of mobility in his left ankle and that he experiences periods of flare-ups. He stated that he retired from his job as a Metro transit bus driver due to this disability. In December 2020, the Board remanded the issue for a new VA examination to ascertain the current severity of the Veteran's left ankle disability. The RO was directed to consider the referral of the issue for extraschedular consideration as part of the readjudication. The Veteran underwent a VA contract ankle conditions examination in April 2021. The VA contract examiner noted the Veteran's diagnosis of shrapnel imbedded in his left ankle and left ankle post-traumatic arthritis. Subjective complaints included worsening pain since onset, stiffness, neuropathy and weakness. Functional loss or impairment of the joint was described as an inability to stand on the left foot. The VA contract examiner noted that no history of left ankle instability was noted. Range of motion of the left ankle was plantar flexion to 30 degrees and dorsiflexion to 10 degrees. Pain was noted on both ranges of motion in active motion, passive motion and did not result in or cause functional loss. No objective evidence of crepitus, localized tenderness or pain on palpation was noted. The Veteran was able to perform repetitive-use testing with three repetitions with no additional loss of function or range of motion after three repetitions. There is no evidence of pain, fatigability, weakness, lack of endurance or incoordination which significantly limits functional ability with repeated use over time. No muscle atrophy, ankylosis or joint instability was present. He does not use any assistive devices as a normal mode of locomotion. The Veteran reported experiencing left ankle pain since his left ankle fracture and in 2013 and retained shrapnel and that he had to retire early because he didn't pass his physical exam to go back to work. He stated the limited mobility of his left ankle disqualified him from driving the bus. The VA contract examiner noted the Veteran's ankle x-ray showed arthritis, a metallic plate, and screws over the distal left fibular metadiaphysis is related to ORIF in the past and the shrapnel fragment retention in his left ankle. After reviewing the relevant medical and lay evidence and applying the above laws and regulations, the Board finds that a rating in excess of 20 percent is not warranted for the Veteran's left ankle. The Veteran is currently in receipt of a 20 percent rating under Code 5271. This is the maximum schedular rating available. 38 C.F.R. § 4.71a, Diagnostic Code 5271. The Board has also considered other ankle rating codes under 38 C.F.R. § 4.71a and finds that a compensable rating under any of them is not warranted. The Veteran does not have ankylosis of his subastragalar or tarsal joint necessary for a compensable rating under Code 5272. He does not have malunion of the os calcis or astragalus necessary for a compensable rating under Code 5273, and he has not had an astragalectomy necessary for a compensable rating under Code 5274. A rating under Code 5271, for ankle limitation of motion, cannot be assigned at the same time as a rating for ankylosis under Code 5270. To do so would be pyramiding, in violation of 38 C.F.R. § 4.14, as both are rated based on limitation of motion of the ankle. If ankylosis was identified, the Veteran's left ankle could be considered under Diagnostic Code 5270 rather than 5271. However, the Veteran has not evidenced ankylosis during the period on appeal. As such, this Code is not applicable. Ordinarily, the VA Schedule will apply unless there are exceptional or unusual factors which would render application of the schedule impractical. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993). An extraschedular disability rating is warranted based upon a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that would render impractical the application of the regular schedular standards. See 38 C.F.R. § § 3.321 (b)(1). An exceptional case is said to include such factors as marked interference with employment or frequent periods of hospitalization as to render impracticable the application of the regular schedular standards. See Fanning v. Brown, 4 Vet. App. 225, 229 (1993). Under Thun v. Peake, 22 Vet. App. 111 (2008), there is a three-step inquiry for determining whether a veteran is entitled to an extraschedular rating. First, the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Second, if the schedular evaluation does not contemplate the Veteran's level of disability and symptomatology and is found inadequate, the Board must determine whether the Veteran's disability picture exhibits other related factors such as those provided by the regulation as "governing norms." Third, if the rating schedule is inadequate to evaluate a veteran's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extraschedular rating. In this case, the Board finds that the schedular criteria do indeed fully contemplate the Veteran's level of disability and symptomatology. He complains of functional impairment due, essentially, to pain and impaired motion. These are the exact factors on which his current rating is assigned, particularly in light of the application of the DeLuca factors discussed above to establish his actual degree of functional impairment. He does not report any manifestations outside such factors, and simply argues as to severity. Accordingly, the Veteran's left ankle is properly contemplated under the schedular criteria. The rating schedule is adequate and referral for extraschedular consideration is not needed under the circumstances of this case. Johnson v. McDonald, 762 F.3d 1362 (Fed. Cir. 2014). REASONS FOR REMAND The Veteran is also seeking entitlement to service connection for skin rash, which he contends is related to his exposure to Agent Orange. At his hearing, the Veteran testified that he has experienced a chronic skin rash since his time in Vietnam and that he had been treated by a private provider for his skin rash. While the rash was not present all the time, it did appear when the weather warmed. He used ale vera and hot showers to self-treat. In its December 2020 remand, the Board directed the AOJ to schedule the Veteran for a VA skin examination and opinion. The remand directives requested an opinion as to whether any currently diagnosed skin rash was caused or aggravated by service, to include as due to Agent Orange, or was caused or aggravated by another diagnosed condition, to include a psychiatric disorder. The Veteran underwent a VA skin contract examination in April 2021. The VA contract examiner noted the Veteran's diagnosis of a skin rash. The Veteran reported that he started to have skin rashes while he was in the Vietnam war. The Veteran reported that the rash comes and goes and seems to occur in Spring or when there is a change in weather. The Veteran reported that he has treated he self-treats the skin rash with over-the-counter neosporin cream and Gold Bond powder in the past year. Skin itching still continues after the rash healed. The VA contract examiner concluded that the Veteran's condition was not related to service because there was no evidence of chronicity of care and his symptoms were subjective only. It is well established that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. 38 C.F.R. § 4.2; Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board finds this opinion is inadequate for adjudication purposes as the examiner did not consider the Veteran's statements that he experiences periods of remission and that his current treatment includes the use of creams and powders for management of his symptoms. In effect, the examiner summarily rejected all lay evidence. A new examination and opinion are necessary in order to fairly adjudicate this claim. The matter is REMANDED for the following action: 1. Schedule the Veteran for a VA examination to determine the nature and etiology of any currently diagnosed skin rash. The claims folder must be reviewed in conjunction with the examination. The examiner should opine as to whether it is at least as likely as not that any currently diagnosed skin rash was caused or aggravated by service, to include as due to Agent Orange, or is caused or aggravated by another diagnosed condition, to include a psychiatric disorder. If possible, the examination should be scheduled during a flare-up of the Veteran's skin disorder. If it is not possible to schedule the Veteran for a VA examination during a period of flare-up, the examiner should document the Veteran's symptoms based on his description of symptoms during a flare-up. A full and complete rationale, which considers both lay and documentary evidence, for all opinions expressed is required. 2. Then readjudicate the remanded issue. If the benefit sought remains denied, the Veteran and his representative should be provided with a supplemental statement of the case. The case should then be returned to the Board for appellate review if otherwise in order. WILLIAM H. DONNELLY Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Margaret M. Lunger, 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.