Citation Nr: 21065566 Decision Date: 10/26/21 Archive Date: 10/26/21 DOCKET NO. 17-46 782 DATE: October 26, 2021 ORDER Entitlement to service connection for residuals of frostbite of the right hand is denied. Entitlement to service connection for residuals of frostbite of the left hand is denied. Entitlement to service connection for throat cancer is denied. Entitlement to service connection for a dental disability for compensation purposes is denied. Entitlement to compensation under the provisions of 38 U.S.C. § 1151 for additional dental disability, claimed as due to VA treatment, is denied. Entitlement to an initial compensable rating for bilateral hearing loss is denied. Entitlement to a total rating based on individual unemployability (TDIU) is denied. FINDINGS OF FACT 1. The preponderance of the evidence is against finding that the Veteran has residuals of frostbite of the right hand due to any inservice event, injury, or illness. 2. The preponderance of the evidence is against finding that the Veteran has residuals of frostbite of the left hand due to any inservice event, injury, or illness. 3. The Veteran's throat cancer first manifested as squamous cell cancer of the right tonsil many years after service and is unrelated to his military service, including his inservice exposure to contaminated water at Camp Lejeune. 4. The Veteran incurred postservice additional dental disability, including loss of teeth and Xerostomia, due to postservice radiation therapy for treatment of nonservice connected tonsillar cancer, and such additional dental disability is unrelated to military service, including inservice exposure to contaminated water at Camp Lejeune, and is not due to or aggravated by a service connected disability. 5. The Veteran did not receive VA care or treatment, which consisted of postservice chemotherapy and radiation therapy by private medical providers for treatment of nonservice connected tonsillar cancer; and any additional dental disability, including loss of teeth, dysphagia, and Xerostomia therefrom was an expected and reasonably foreseeable result of appropriate radiation therapy for cancer, and is not due to any VA fault. 6. The Veteran is service-connected for bilateral hearing loss with hearing acuity of no worse than Level I in the right ear and Level II in the left ear. 7. The Veteran's service connected disabilities are tinnitus, frostbite of the left foot, and frostbite of the right foot, each rated 10 percent disabling, with a combined rating of 30 percent; he has a high school education and work experience in sales, but the preponderance of the evidence is against finding that his service-connected disabilities preclude his ability to secure or follow a substantially gainful occupation. CONCLUSIONS OF LAW 1. The criteria for service connection for residuals of frostbite of the right hand have not been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. The criteria for service connection for residuals of frostbite of the left hand have not been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 3. The criteria for service connection for throat cancer have not been met. 38 U.S.C. §§ 1101, 1112, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 4. The criteria for service connection for a dental disability for compensation purposes have not been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. 5. The criteria for compensation under the provisions of 38 U.S.C. § 1151 for additional dental disability have not been met. 38 U.S.C. § 1151, 5107; 38 C.F.R. § 3.102, 3.361. 6. The criteria for an initial compensable rating for bilateral hearing loss have not been met. 38 U.S.C. § 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.85, 4.86, Diagnostic Code 6100. 7. The criteria for a TDIU rating have not been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.3, 4.16, 4.19. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty in the Marine Corps from September 1975 to July 1978. The Veteran's DD 214 shows that he had no foreign or sea service. This matter is before the Board of Veterans' Appeal (Board) on appeal of a rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In November 2019 the Board remanded the case for evidentiary development. At that time the issues included entitlement to service connection for residuals of frostbite of each foot. Thereafter, an October 2020 rating decision granted service connection for residuals of frostbite of each foot and assigned separate 10 percent disability ratings for each foot, all effective August 1, 2014. The grants of service connection were complete grants of those benefits then sought on appeal. Grantham v. Brown, 114 F.3d 1156, 1158-59 (Fed. Cir. 1997). The Veteran has not appealed the assigned disability ratings or effective dates and, so, those downstream issues are not before the Board. Id. The case has now been returned to the Board. Lastly, the Board notes that in VA Form 21-4138, Statement in Support of Claim, dates and received in June 2015, the Veteran claimed service connection for arthritis of his hands due to inservice injuries. However, this claim has not been adjudicated by the RO and, so, is referred to the RO for initial consideration. SERVICE CONNECTION Establishing service connection generally requires (1) evidence of a current disability; (2) evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curium, 78 F.3d 604 (Fed. Cir. 1996) (table); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a), (d). Service connection may be granted for any disease diagnosed after discharge, when the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Certain chronic diseases, such as cancer, will be presumed related to service, absent an intercurrent cause, if shown as chronic in service; or, if manifested to a compensable degree within a presumptive period following separation from service; or, if noted in service (or within an applicable presumptive period) with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309. Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). Service connection will be granted on a secondary basis for disability that is proximately due to or the result of, or aggravated by, an already service-connected condition. 38 C.F.R. § 3.310(a) and (b). This requires (1) evidence of a current disability; (2) a service-connected disability; and (3) evidence establishing a nexus between the service-connected disability and the claimed disability. Wallin v. West, 11 Vet. App. 509, 512 (1998). Service connection may also be granted on a presumptive basis for certain diseases associated with exposure to contaminants (defined as the volatile organic compounds trichloroethylene (TCE), perchloroethylene (PCE or PERC), benzene, and vinyl chloride) in the on-base water supply located at Camp Lejeune, even though there is no record of such disease during service, if they manifest to a compensable degree at any time after service, in a veteran, former reservist, or a member of the National Guard, who had no less than 30 days (consecutive or nonconsecutive) of service at the United States Marine Corps Base Camp Lejeune and/or Marine Corps Air Station New River in North Carolina, during the period beginning on August 1, 1953, and ending on December 31, 1987. See Diseases Associated with Exposure to Contaminants in the Water Supply at Camp Lejeune, 82 Fed. Reg. 4,173 (Jan. 13, 2017) (codified at 38 C.F.R. § 3.307(a)(7). The Veteran was stationed at Camp Lejeune from 1976, 1977, and 1978 and, so, was presumptively exposed to contaminated water. The presumptions related to contaminated water at Camp Lejeune establish the inservice event required for the second element of service connection. The remaining matter centers upon the third element required for service connection, i.e., a causal relationship or nexus between the present disability and event (in this case, exposures) during service. See Shedden, 1166-67 (Fed. Cir. 2004). Effective March 14, 2017, 38 C.F.R. §§ 3.307 and 3.309 were amended to add eight diseases to the list of diseases associated with contaminants present in the water supply at U.S. Marine Corps Base Camp Lejeune. The following diseases are deemed associated with exposure to contaminated water at Camp Lejeune: kidney cancer, liver cancer, Non-Hodgkin's lymphoma, adult leukemia, multiple myeloma, Parkinson's disease, aplastic anemia and other myelodysplastic syndromes, and bladder cancer. 82 Fed. Reg. at 4,185 (codified at 38 C.F.R. § 3.309(f). While throat cancer is not among the diseases presumptively due to contaminated water at Camp Lejeune and New River, service connection can still be established with proof of actual direct causation. See Combee v. Brown, 34 F.3d 1039, 1043-44 (Fed. Cir. 1994); Polovick v. Shinseki, 23 Vet. App. 48, 5253 (2009) ("Even though a disease is not included on the list of presumptive diseases, a nexus between the disease and service may nevertheless be established on the basis of direct service connection."). A layperson is generally incapable of opining on matters requiring medical knowledge. Routen v. Brown, 10 Vet. App. 183, 186 (1997), aff'd sub nom., Routen v. West, 142 F.3d 1434 (Fed. Cir. 1998). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when: (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Reasonable doubt will be favorably resolved if there is an approximate balance of favorable and unfavorable evidence but if the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Ortiz v. Principi, 274 F.3d 1361, 1365-66 (Fed. Cir. 2001). 1. Entitlement to service connection for residuals of frostbite of the right hand 2. Entitlement to service connection for residuals of frostbite of the left hand Because of the similarities of the claims for residuals of frostbite of the hand, the Board will address these two claims simultaneously. In a September 2015 Statement in Support of Claim the Veteran reported that in the winter of 1976 or 1977 he had been Medevac'd out of the field in Germany while engaged in a NATO exercise because of frostbite of the hands and feet, for which in a U.S. Navy vessel and he had been treated or hospitalized for more than a week. In November 2015 P. Yocum, D.C., a chiropractor, repeated this history and stated that on examination for frostbite of the feet the Veteran had loss of sensation and paresthesiae of the "foot and fingers." The Veteran has requested a search of records of the U.S. Navy for these records. However, not only does his DD 214 show that he had no overseas or foreign service, but his service personnel records do not show that he had any overseas or foreign service. During the majority of his military service he was stationed at Camp Lejeune, North Carolina. Moreover, his service treatment records (STRs) show that he had and was treated for frostbite of the feet in October 1976 at Camp Lejeune. In sum, there is nothing which would tend to corroborate that Veteran's report of incurring frostbite overseas with resultant treatment aboard a U.S. Naval vessel. Accordingly, no additional search for such records has been made and, from the foregoing, it must be concluded that such records do not exist. Service treatment records (STRs) demonstrate that the Veteran was seen on multiple occasions for a variety of reasons while stationed at Camp Lejeune in 1976, 1977, and 1978. In October 1976 the Veteran was seen for frostbite of both feet. There were no complaints relating to his hands. Discharge examination of July1978 revealed the Veteran no other pertinent abnormality. Of note is a November 2015 Review of PTSD Disability Benefits Questionnaire which reflects that psychological testing revealed that others with similar profiles had intrusive and obsessive thought and some bizarre sensory perceptual or bodily disturbance and were focused on their physical functioning and were resistant to psychological interpretations of their problems. The "prefer[red] medical explanations of them or blame them on others." A December 2015 VA treatment record shows that the Veteran was being treated for osteoarthritis of each hand. The impression was bilateral hand pain due to osteoarthritis. Pursuant to the 2019 Board remand, the Veteran was afforded an examination of his hands and fingers in August 2020. His records were reviewed. The diagnosis was arthritis of both hands, with the diagnosis having originally been made in 2015. On physical examination he had tenderness to palpation of finger joints of each hand, which the examiner stated was related to osteoarthritis of each hand. It was reported that X-rays demonstrated osteoarthritis of both hands. The examiner also described it as degenerative arthritis. Statements by Dr. Yocum and the Veteran were reviewed but the examiner nevertheless opined that the claimed frostbite of the hands was less likely as not incurred in or caused by inservice injury, event, or illness. The rationale was that although STRs showed treatment of frostbite of bilateral feet in October 1976, there was no mention of any involvement of the hands. It could not be assumed that frostbite in one extremity meant frostbite in another extremity. Also, medical records following service showed osteoarthritis of both hands by X-rays in June 2015, and subsequent treatment of bilateral hand pain throughout 2015 to 2018. The Veteran's complaints of the hands were due to osteoarthritis and, additionally, a frostbite injury of the hands was not caused by or as a result of exposure to contaminated water at Camp Lejeune. No chronic residual frostbite diagnosis was made based on the current examination, and the diagnosed degenerative arthritis was not considered related to frostbite and did not have its onset during service. The Board finds the opinion of the 2020 VA examiner to be persuasive because it relied upon an independent review of the entire evidence and, unlike the opinion of Dr. Yocum which was conclusory in nature, did not rely solely upon the uncorroborated history related by the Veteran. Also, the 2020 VA opinion addressed and account for the Veteran's complaints of pain in his hands being due to radiologically documented arthritis of the hands, which was neither addressed nor even mentioned by Dr. Yocum. The VA opinion further found that the current arthritis was unrelated to any frostbite. Accordingly, the Board finds that the preponderance of the evidence is against finding that the Veteran has frostbite of the hands which is of service origin. There is no doubt to be resolved. 3. Entitlement to service connection for throat cancer It is undisputed that during his service at Camp Lejeune the Veteran was exposed to contaminated water and that there is no evidence that he developed throat cancer, specifically squamous cell cancer of the right tonsil until many years after service, in 2012 when a tonsil biopsy found HPV virus and squamous cell cancer. After he received chemotherapy and radiation therapy in 2013 and 2014 his cancer went into remission and has not recurred. Throat cancer, including squamous cell cancer of the tonsil, is not a disease which is presumptively due to inservice exposure to contaminated water at Camp Lejeune. However, service connection may still be granted if there is competent evidence of a nexus between his development of such cancer and inservice exposure to contaminated water. In this regard, the matter of a nexus between his conceded exposure ant the later development of cancer of the tonsil is not one as to which lay evidence is competent because such a matter is not readily observable by a layperson and, also, competent evidence of such a nexus must come from one with the education, training, and expertise to render such an opinion. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The only evidence from a clinical source in support of this claim is a November 2015 statement from P. Yocum, a chiropractor, in which the Veteran's diagnosis of tonsillar cancer and his treatment with chemotherapy and radiation therapy with Space Coast Cancer Care were reported. It was stated that the Veteran had residuals of his treatment including substantial loss of voice, inability to manufacture saliva, and tooth loss. It was concluded that the cancer was more likely than not directly and causally related to exposure to contaminated ground water at Camp Lejeune. No rationale was given. On the other hand, weighing against the claim are multiple VA medical opinions. For example, in September 2015 a medical opinion was obtained from a physician and Subject Matter Expert as to whether the Veteran' right tonsillar squamous cell cancer was due to exposure to contaminated water at Camp Lejeune. The physician concluded that it was not. The rationale was that the best known and most widely accepted risk factors for head and neck cancers in general, and oropharyngeal cancer in particular were: smoking (over 10 pack years), excessive alcohol intake, and Human Papilloma Virus (HPV) infection, which was a sexually transmitted disease. Other risk factors included: gender - men more than women; age - risk increased with age. However, a review of medical literature did not reveal an increased risk for tonsillar cancer in those exposed to contaminate water at Camp Lejeune. Specific to the Veteran's case, the opinion noted that the Veteran was 56 years old at the time of his diagnosis. His was the most common cell type of head and neck cancer in general and oropharyngeal cancer in particular. He had a 30 pack year smoking history and a history of heavy alcohol use. In addition, he acknowledged using chewing tobacco, and marijuana. His tonsil biopsy had been "markedly positive for carcinogenic papilloma virus." Thus, he had all three of the biggest risk factors for developing the type of cancer with which he was diagnosed. In addition, there was no scientific evidence linking the solvents known to have been in the drinking water at Camp Lejeune to this type of cancer. Therefore, based upon the currently available literature, what was known about this Veteran's exposure history during military service, his gender, his age, his smoking, drinking, chewing tobacco, and papilloma virus infection, as well as the pathology of his cancer, it was the expert's opinion, to a reasonable degree of medical certainty, that the Veteran's squamous cell carcinoma of the tonsil was not caused by or the result of the Veteran's exposure to CLCW (Camp Lejeune Contaminated Water). Thereafter, and pursuant to the 2019 Board remand, the Veteran was examined in August 2020 as to his claimed tonsillar cancer and residuals. His records were reviewed. The examiner opined that the Veteran's tonsillar cancer was less likely than not incurred in or caused by inservice injury, event, or illness, including exposure to contaminated water at Camp Lejeune. The previous rationale was restated but it was additionally noted that the STRs reflected diagnosis and treatment for mononucleosis in 1977 which included sore throat, sore neck, throat inflammation, tender lymph nodes, and swollen lymph nodes; as well as upper respiratory infections (URIs) and colds in 1976 and 1977 with sore neck or sore throat complaints. However, there was no known relationship between a past history of mononucleosis, URIs, and/or colds and the development of throat cancer. Thus, there was no evidence Veteran's throat cancer was related to and/or had its onset during his period of service. As requested in the Board remand, the examiner also addressed the opinion of Dr. Yocum but reported that there was no cited evidence-based literature to support Dr. Yocum's statement. In an attempt to find evidence to support Dr. Yocum's statement, a literature search was conducted and all literature previously cited by the prior VA examiner was also reviewed. However, there were no available studies showing an association between exposure to the known Camp Lejeune water contaminants and tonsillar, throat, or other oropharyngeal cancers. The examiner stated that the presence of HPV in Veteran's throat, and/or past smoking and/or past alcohol use were the major risk factors for Veteran developing throat cancer irrespective of any environmental exposures incurred while at Camp Lejeune. More specifically, the Veteran's highly positive HPV count in his biopsy was proof that the HPV was the cause of the throat cancer, and his positive response to treatment was additional proof that the cause of his throat cancer was due to HPV. Thus, the throat cancer less likely than not had its onset during his period of service and/or related to CLCW. In weighing these medical opinions the Board finds that the opinion of P. Yocum, a chiropractor, was based simply on the history of the Veteran's inservice exposure to contaminated water at Camp Lejeune and otherwise is completely without any rationale. Even a search by a later opining VA clinical found no supporting medical literature. On the other hand, the negative VA medical opinions were supported by detailed rationales based on medical literature and the application of the known facts in this case to accepted medical knowledge as to the possible causes of the Veteran's tonsillar cancer. Thus, the Board gives greater probative weight to the negative VA medical opinions over the conclusory favorable opinion from a private chiropractor. Accordingly, the Board finds that the preponderance of the evidence is against the claim for service connection for throat cancer and that in this consideration there is no doubt to be resolved. 4. Entitlement to service connection for a dental disability for compensation purposes VA regulations provide that treatable carious teeth, replaceable missing teeth, dental or alveolar abscesses, periodontal disease (pyorrhea), and Vincent's stomatitis are not disabling conditions and may be considered service-connected solely for the purpose of determining entitlement to VA outpatient dental treatment or examination. 38 C.F.R. §§ 17.120 and 17.123; see also 38 C.F.R. § 4.149. Service connection for compensation purposes can only be established for certain types of dental and oral conditions listed under 38 C.F.R. § 4.150, such as impairment of the mandible, loss of a portion of the ramus, and loss of a portion of the maxilla. Compensation is available for loss of teeth only if such is due to loss of substance of body of maxilla or mandible. See Simmington v. West, 11 Vet. App. 41 (1998). For loss of teeth, bone loss through trauma or disease such as to osteomyelitis, must be shown for purposes of compensability. The loss of the alveolar process as a result of periodontal disease is not considered disabling. See 38 C.F.R. § 4.150, Diagnostic Code 9913, Note. The regulations governing dental claims make a fundamental distinction between "replaceable missing teeth", see 38 C.F.R. § 3.381(a), and teeth lost as a result of loss of substance of body of maxilla or mandible due to trauma or disease such as osteomyelitis, and not loss of the alveolar process as a result of periodontal disease. See 38 C.F.R. § 4.150, Simmington v. West, 11 Vet. App. 41, 44 (1998). The Veteran's service dental records are unavailable. However, the discharge examination of July1978 revealed the Veteran had dental caries but no other pertinent abnormality. In any event, in this case it is contended that the Veteran has incurred loss of teeth and dysphagia (difficulty swallowing) due to Xerostomia, which is difficulty or inability to produce saliva, as a result of postservice radiation therapy for treatment of tonsillar cancer. Under 38 C.F.R. § 3.310(a) and (b) service connection may be granted for a disability which is proximately due to or the result of, or aggravated, i.e., increases in severity, a service connected disorder. As applied to this case, the Veteran must first be service connected for the throat cancer, i.e., tonsillar cancer, in order to find that the claimed loss of teeth and Xerostomia are due to or aggravated by tonsillar cancer or any treatment for tonsillar cancer. Because the Veteran is not service connected for tonsillar cancer there is no basis for granting service connection for any additional dental disability, including loss of teeth or dysphagia due to Xerostomia. As to service incurrence, in August 2020 an examining VA dentist opined as to whether the claimed dental disabilities were related to and/or had their onset during the Veteran's period of service. It was opined that the claimed dental disabilities were less likely than not incurred in or caused by the claimed in-service injury, event, or illness and were secondary to postservice events. Xerostomia did not appear to be directly related to military service period; rather, it was a complication of treatment well after the Veteran's service. Further, the claimed dental disabilities had not been found to be associated with exposure to CLCW and, so, were not caused by or a result of exposure to such contaminated water. Accordingly, the Board finds that the preponderance of the evidence is against the claim for service connection for a dental disability for compensation purposes and, so, there is no doubt to be resolved. 5. Entitlement to compensation under the provisions of 38 U.S.C. § 1151 for additional dental disability, claimed as due to VA treatment, As an alternative compensation on a secondary service connection basis for additional dental disability being due to throat cancer, and specifically chemotherapy and radiation therapy treatment for throat cancer, the Veteran seeks compensation under the provisions of 38 U.S.C. § 1151, for additional dental disability. Under 38 C.F.R. § 1151, compensation is awarded for a qualifying additional disability or death in the same manner as if such additional disability or death were service-connected. For purposes of this section, a disability or death is a qualifying additional disability if (1) the disability or death was not the result of the veteran's willful misconduct, (2) the disability or death was caused by hospital care, medical or surgical treatment, or examination furnished the veteran under the law administered by VA, and (3) the proximate cause of the disability or death was (A) carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of the Department in furnishing the hospital care, medical or surgical treatment, or examination, or (B) an event not reasonably foreseeable. 38 U.S.C. § 1151; 38 C.F.R. § 3.361; Viegas v. Shinseki, 705 F.3d 1374, 1377-78 (Fed. Cir. 2013). The question for the Board is whether it is at least as likely as not that the Veteran sustained additional dental disability that was caused by hospital care, medical or surgical treatment by VA; and the proximate cause of the disability was either (a) carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault by VA in furnishing the hospital care, medical or surgical treatment, or (b) an event not reasonably foreseeable. The Board concludes that the preponderance of the evidence weighs against a finding that (i) VA failed to exercise the degree of care that would be expected of a reasonable health care provider; or (ii) VA furnished the hospital care, medical or surgical treatment, without the veteran's informed consent under the requirements of 38 C.F.R. § 17.32. 38 C.F.R. § 3.361(d)(1); McNair v. Shinseki, 25 Vet. App. 98 (2011). Further, the preponderance of the evidence is against a finding that the proximate cause of the Veteran's claimed disability was an event not reasonably foreseeable. 38 C.F.R. § 3.361(d)(2); Schertz v. Shinseki, 26 Vet. App. 362, 367-69 (2013). In sum, the Veteran developed right tonsillar squamous cell cancer many years after service for which he was given chemotherapy and radiation therapy which caused additional dental disability, including loss of teeth and dysphagia due to Xerostomia. The Board acknowledges that this claim was remanded in 2019 to obtain medical opinions addressing the legal standards in 38 U.S.C. § 1151; 38 C.F.R. § 3.361. Those opinions were obtained in 2020 and all the opinions were negative, i.e., weigh against the claim, as did prior VA medical opinions obtained in June 2015. Nevertheless, upon a closer review of the evidence it is determined that VA did not render hospitalization, care, or treatment, including chemotherapy and radiation therapy. Rather, when the Veteran first developed symptoms of his throat cancer he sought consultation from private medical sources. Eventually, private medical providers at that Space Coast Cancer Center determined that he had right tonsillar cancer and he was instructed as to the possible side effects and consequences of the recommended chemotherapy and radiation therapy. More to the point, that therapy was provided by Space Coast Cancer Center and not by VA. In this regard, although a VA medical opinion in June 2015 indicates that the Veteran's additional dental disability of Xerostomia was due to VA chemotherapy, this opinion was premised upon a misreading of the record. The administration of chemotherapy and radiation therapy by the Space Coast Cancer Center was acknowledged in Dr. Yocum's November 2015 statement. Moreover, clinical records obtained from the Social Security Administration (SSA) include a July 2016 letter from an attorney representing the Veteran in his claim for SSA disability benefits to an SSA Administrative Law Judge (ALJ) summarizing the Veteran's case. It was stated that the Veteran had been treated with chemotherapy and radiation therapy at the Space Coast Cancer Center from February 2013 to August 2014 for squamous cell carcinoma of the right tonsil. Also, the Board notes that there are no VA clinical or other records indicating that VA participated in any manner in the administration of the Veteran's chemotherapy and radiation therapy. In this regard, it is neither shown nor contended that the Veteran ever notified VA of his intent, or actual receipt, of chemotherapy or radiation therapy prior to the administration of these therapies, or that he ever sought or received VA consent, approval, or authorization for such treatment. In this connection, an August 2020 VA dental examiner reported that the last date of chemotherapy and radiation therapy had been in August 2014 and the Board notes that the Veteran did not file his claim for compensation until after August 2014. Although the Veteran did receive follow-up VA care and treatment after the chemotherapy and radiation therapy, it is neither shown nor contended that any additional dental disability is due to or the result of any such follow-up VA care and treatment. In sum, VA had nothing to do with the Veteran's chemotherapy or radiation therapy and, as a result, is in no way responsible for any adverse side effects, including any additional dental disability. See generally Viegas v. Shinseki, 705 F.3d 1374, 1377 (Fed. Cir. 2013) (holding that the second prerequisite for 38 U.S.C. § 1151 compensation is that disability "must have been 'caused by hospital care, medical or surgical treatment, or examination furnished the veteran' by VA or in a VA facility"). Thus, the Board must find that the preponderance of the evidence is against the claim for compensation under the provisions of 38 U.S.C. § 1151, for additional dental disability, claimed as due to VA treatment. 6. Entitlement to an initial compensable rating for bilateral hearing loss The Veteran contends that he is entitled to a compensable rating for bilateral hearing loss because he has poor hearing acuity in each ear. 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). As was noted in the 2019 Board remand, a private provider conducted an audiogram, but the report of this evaluation did not reflect whether the Maryland CNC Word List was used. On remand, the RO attempted to obtain records from the Florida Medical Hearing Center, but after requests in November and December 2019 there was no response. The Board notes that there is no indication that the Maryland CNC test was used in the audiology evaluation by the Florida Medical Hearing Center. The Board observes that pursuant to 38 C.F.R. § 4.85 (a), an examination for hearing impairment for VA purposes must be conducted by a state-licensed audiologist and must include a controlled speech discrimination test (Maryland CNC) and a pure tone audiometry test. The Maryland CNC "[t]est required by [] VA is administered using a different protocol than the word recognition testing protocol commonly used by many audiologists when completing a standard diagnostic audiometric examination." Soto v. Wilkie, No. 20-0698, slip op. at 3 (U.S. Vet. App. Oct. 13, 20202) (memorandum decision). The validity of requiring the use of the Maryland CNC test in determining hearing loss, under 38 C.F.R. § 3.385, was upheld in Meedel v. Shinseki, 23 Vet. App. 277, 279 (2009) (stating that "the regulation clearly calls for a speech recognition score using the Maryland CNC [t]est."). "'[T]he Maryland CNC [t]est is used by the VA because it has been shown to be reflective of a patient's performance in conversation." Soto, slip op. at 3 (U.S. Vet. App. Oct. 13, 20202) (memorandum decision). Accordingly, the results of such private testing are inadequate for rating purposes. On VA audiology examination in June 2015 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 20 25 75 70 47.5 98% LEFT 10 15 70 70 41.25 98% The examiner stated that the results of puretone testing and speech discrimination scores, using the Maryland CNC Word List, were valid for rating purposes. The diagnosis was a bilateral sensorineural hearing loss. Applying the results to Table VI, the findings yield a numeric designation of Level I in the right ear and Level I in the left ear. Entering the resulting bilateral numeric designation of Level I for the right ear and Level I for the left ear to 38 C.F.R. § 4.85, Table VII, equates to a zero percent disability rating under Diagnostic Code 6100. An exceptional pattern of hearing impairment under 38 C.F.R. § 4.86 was not shown. The Veteran reported that the hearing loss impact on his ordinary conditions of daily life, including ability to work, was that he needed to talk face to face to understand conversation well, and had to play a television too loud. However, because the Veteran had not been afforded a VA audiology evaluation for rating purposes in four years, the case was remanded in 2019 for an up-to-date VA audiology evaluation. An August 2020 VA audiology examination revealed that the impact of the Veteran's hearing impairment was, in his own words, that it did not impact his work activities but that he could not hear well whenever there was any sort of ambient noise, he had to read people's lips, and his family complained that he turned the TV volume up too loud. He reported that he was reluctant to wear hearing aids due to cosmetic issues. 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 25 50 80 75 57.5 98% LEFT 30 50 75 80 58.75 98% The examiner the results of puretone testing and speech discrimination scores, using the Maryland CNC Word List, were valid for rating purposes. The diagnosis was a bilateral sensorineural hearing loss. Applying the results to Table VI, the findings yield a numeric designation of Level I in the right ear and Level II in the left ear. Entering the resulting bilateral numeric designation of Level I for the right ear and Level II for the left ear to 38 C.F.R. § 4.85, Table VII, equates to a zero percent 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 bilateral hearing loss is not warranted. The Board expressly acknowledges its consideration of the lay evidence of record when adjudicating this claim, including his difficulty hearing others. 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 probative evidence is against the claim for a compensable rating for bilateral hearing loss and, thus, the doctrine of the favorable resolution of reasonable doubt is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 7. Entitlement to a total rating based on individual unemployability (TDIU) It is contended that the Veteran's service-connected disabilities preclude gainful employment. However, the Board concludes that the preponderance of the evidence weighs against finding that service-connected disabilities rendered him unable to secure and follow a substantially gainful occupation or warranted referral for extraschedular TDIU consideration. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.3, 4.16, 4.19. A veteran is totally disabled if service-connected disability or combination of service-connected disabilities is rated at 100 percent under to the Schedule for Rating Disabilities, or even if less than 100 percent disabled if he satisfies two requirements in 38 C.F.R. § 4.16(a) which are there is one service-connected disability it must be rated 60 percent or more; but, if there are two or more service-connected disabilities, at least one must be rated 40 percent or more and the combined evaluation of all the disabilities must be 70 percent or more. Second, it must be found that there is an inability to secure and follow a substantially gainful occupation due to service-connected disability(ies). Id.; see also 38 C.F.R. §§ 3.340(a)(2), 4.19. The Veteran is service connected for tinnitus, frostbite of the left foot, and frostbite of the right foot, each rated 10 percent disabling, with a combined rating of 30 percent, including a bilateral factor of 1.9 percent. Because he does not meet the schedular requirements a schedular TDIU rating may not be assigned. However, if the percentage rating requirements under 38 C.F.R. § 4.16(a) are not met, a TDIU rating may be assigned on an extraschedular basis under 38 C.F.R. § 4.16(b) if unemployable due to service-connected disabilities. If so, the matter is referred to the Director of the Compensation and Pension Service (Director) for consideration. Id.; see also Bagwell v. Brown, 9 Vet. App. 337 (1996); Floyd v. Brown, 9 Vet. App. 88 (1996); Shipwash v. Brown, 8 Vet. App. 208 (1995). The Board does not have the authority to award an extraschedular TDIU prior to such referral. See Kuppamala v. McDonald, 27 Vet. App. 447 (2015). Total disability means that there is present any impairment of mind or body sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. §§ 3.340, 4.15. A substantially gainful occupation has been defined as employment at which non-disabled individuals earn their livelihood with earnings comparable to the particular occupation in the community where the Veteran resides. It also has been defined as "an occupation that provides an annual income that exceeds the poverty threshold for one person, irrespective of the number of hours or days that the Veteran actually works and without regard to the Veteran's earned annual income." Faust v. West, 13 Vet. App. 342 (2000). "[U]nable to secure and follow substantially gainful employment" in 38 C.F.R. § 4.16(a) comprises both economic and noneconomic components, which required consideration of a wide range of factors and one is a veteran's ability to perform sedentary activities. Ray v. Wilkie, 31 Vet. App. 58, 73 (2019). Consideration may be given to factors such as level of education, special training, and previous work experience, but not to age or impairment caused by non-service-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19; Van Hoose v. Brown, 4 Vet. App. 361 (1993). When jobs are not realistically within his physical and mental capabilities, a veteran is determined unable to engage in a substantially gainful occupation. Moore v. Derwinski, 1 Vet. App. 356 (1991) (citing Timmerman v. Weinberger, 510 F.2d 439 (8th Cir. 1975)). In a December 2015 VA Form 21-8940, Application for Increased Compensation Based on Unemployability, the Veteran reported that he had last worked and became too disabled to work in August 2014. He had a high school education and work experience in sales. An August 2014 VA Oncology consultation note reflects that he had worked as a salesman until let go because he could not speak due to his cancer treatment. A November 2015 Review of PTSD DBQ reflects that the Veteran had graduated from high school and had work experience in construction and in sales. He had retired in August 2014 because his "voice just couldn't hold up" but his employer would allow him to return if he regained his voice. A January 2016 VA treatment record shows that he was to begin attending a program through the AARP to become a security guard and was currently doing volunteer work at museum at space center, doing a combination of walking and sitting. An April 2016 PTSD DBQ reflects that he had recently earned a Certificate in Security and was looking for a "Security/Clearance Service Job." An August 2020 VA examination of his hands and fingers noted that he had formerly worked for FedEx as a ticket scanner. As to impairment from service connected disorders, an August 2020 audiology evaluation shows that the Veteran complained of constant bilateral tinnitus, but the examiner stated that it did not impact ordinary conditions of daily life, including ability to work. As to frostbite, an August 2020 examiner opined that the Veteran's residuals of cold injuries of the feet might impact the Veteran's ability to perform prolonged walking, and prolonged standing. A VA examination of the Veteran's feet in August 2020 noted his complaints of pain, numbness, and tingling in both feet due to frostbite residuals. The Veteran reported that this caused functional impairment with prolonged walking. However, on examination the examiner also reported that the pain was subjective only and did not contribute to functional loss and, also, that there was no functional loss of either lower extremity, including during flareups and repeated use over time. Moreover, the Veteran did not need or use an assistive device for ambulation. However, it is clear that the Veteran has even greater functional impairment due to nonservice connected disorders. For example, in November 2015 P. Yocum, D.C., a chiropractor, stated that due to frostbite not only of the feet but also of the hands (although current pain in his hands is shown to be due to nonservice connected arthritis) and throat cancer, hearing impairment, and unpredictable manifestations of PTSD, the Veteran was medically deemed to be individually unemployable. In October 2016 the Veteran was awarded Social Security Administration (SSA) disability benefits and the award reflect that this was due to throat cancer, arthritic joint pain, and burning and numbness of the hands and feet. However, he is only service connected for frostbite of the feet, and not the other disabling conditions. See Ray v. Wilkie, 31 Vet. App. 58, 73 (2019) (also holding that Social Security Administration (SSA) regulations defining "sedentary" are not binding on VA). Overall, the Veteran's service-connected disabilities certainly make it difficult to obtain or keep employment, as recognized by his assigned disability rating, but do not render him unemployable or preclude him from performing the physical and mental acts required by employment. Rather, despite significant impairment from nonservice-connected disorders, he was able to continue working until August 2014, when he stopped receiving radiation therapy. He has not worked full-time since then, but the fact that the Veteran has been unemployed thereafter or had difficulty obtaining employment is not enough; the evidence must more nearly reflect that the Veteran was not capable of performing the physical and mental acts required by employment. See Van Hoose, 4 Vet. App. 361. The Board finds the objective medical evidence consisting of medical opinions as to his functional ability to be of greater probative value as to the Veteran's level of impairment than his self-reported level of functional impairment. The medical opinions, and the evidence overall, do not indicate that he is incapable of obtaining or retaining substantially gainful employment which would not require arduous or strenuous physical activity. Withers v. Wilkie, 30 Vet. App. 139, 148 (2018) held that while 38 C.F.R. § 4.16 "does not make the concept of sedentary work an explicit TDIU factor" if TDIU is denied because "a veteran is capable of sedentary work" this must be explained in the context of that case." Thus, while not a legally governing consideration, the ability to perform sedentary work can be a relevant factor and a finding that sedentary employment is possible can be determinative when explained in relation to past education and occupational history. See id. However, neither VA nor the Court has explicitly defined the term "sedentary employment." Withers, Id. The Board finds that sedentary employment is the common meaning in society of non-physical, white collar, office-type work. The Board envisions potential sedentary employment to encompass administrative, managerial or other forms of employment that would not require the Veteran to spend a significant amount of time standing, ambulating or physical activity requiring lifting, bending, walking, or standing for long periods of time, and would permit the Veteran to take periodic breaks. The Board acknowledges that the Veteran's service-connected frostbite of the feet would reasonably cause some occupational limitations, and particularly in employment that is physically intensive. However, his service-connected disabilities alone are not shown to be severe enough to prevent him from securing or following substantial employment that is relatively non-labor-intensive and does not require repeated heavy and/or repetitive lifting, prolonged sitting, standing, etc. Based on the evidence of record showing a high school education and work experience in sales, the Board finds no readily apparent reason why the Veteran would not be able to secure and follow substantially gainful employment performing clerical work or other office work, taking necessary precautions (e.g., avoiding lifting heavy items) and while taking regular breaks, as needed. In fact, his high school education aligns with an ability to perform sedentary work of an unskilled or semi-skilled nature that does not require specialized training, such as clerical, inspection, or assembly work. He would be capable of a variety of forms of employment that require some degree of writing, arithmetic, computer skills, or other tasks consistent with his work history. Indeed, the Veteran is not service connected for any disability which would impair his mental status, his ability to concentrate, and focus on tasks at hand. To the extent that the Veteran would require unscheduled breaks to alleviate pain for discomfort from his frostbite of the feet, the evidence does not reflect that an employer cannot make reasonable accommodations (e.g., breaks to rest) for the Veteran. The Americans with Disabilities Act (ADA) mandates reasonable accommodations for employees with substantial disabilities so long as the employee can satisfactorily perform the work once those accommodations are made. See 42 U.S.C. Chapter 126. No evidence is of record demonstrating that he requires any workplace accommodations that would be extraordinary or beyond those that would be required by the ADA. Thus, the Board concludes that the preponderance of the evidence demonstrates that despite the impact of his service connected disabilities the Veteran could still perform sedentary work because, irrespective of his age and nonservice connected disabilities, he could perform work, such as that described above, which would allow him to sit or stand at will, or take breaks to sit or stand as needed. Thus, referral of the case for extraschedular consideration is not warranted. (Continued on the next page) For these reasons and bases, on balance, the weight of the evidence is against the claim. Accordingly, the claim is denied. There is no doubt to resolve. 38 U.S.C. § 5107(b). KRISTI L. GUNN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Fussell, 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.