Citation Nr: 21067389 Decision Date: 11/04/21 Archive Date: 11/04/21 DOCKET NO. 18-41 319 DATE: November 4, 2021 ORDER Entitlement to a compensable disability rating for service-connected bilateral hearing loss is denied. Entitlement to service connection for a bladder condition is denied. REMANDED Entitlement to service connection for peripheral neuropathy, bilateral lower extremities, is remanded. FINDINGS OF FACT 1. Audiometric testing establishes that the Veteran's bilateral hearing loss disability was no worse than level "II" in his right ear and level "IV" in his left ear. 2. The preponderance of the evidence is against finding that the Veteran's bladder condition is related to the conceded Agent Orange exposure or any other incident of service. CONCLUSIONS OF LAW 1. The criteria for entitlement to an initial compensable rating for service-connected bilateral hearing loss were not met. 8 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.85, Diagnostic Code (DC) 6100, 4.86. 2. The criteria for entitlement to service connection for a bladder condition have not been met. 38 U.S.C. §§ 1110, 1117, 1131, 1154(a), 5107(b) (West 2014); 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 1969 to November 1970, to include service in Vietnam. These matters come before the Board of Veterans' Appeals (Board) on appeal from a June 2016 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veterans Law Judge in a December 2020 Board hearing, and a transcript is of record. During the pendency of the appeal period, RO granted service connection for hypertension. The Veteran has not disputed either the effective date for the award of service connection or the rating assigned for this condition. Thus, this claim is no longer on appeal. See Grantham v. Brown, 114 F.3d 1156, 1158 (Fed. Cir. 1997) (clarifying that an appeal regarding downstream elements, i.e., the disability rating and effective date, is separate from any prior appeal regarding entitlement to service connection). In January 2021, the Board remanded these matters for RO to obtain VA treatment records and VA examinations/medical etiology opinions for bilateral hearing loss, bladder condition, and peripheral neuropathy of the bilateral lower extremities. With regards to bilateral hearing loss and bladder condition, the Board finds substantial compliance with the previous Board remand instructions, but not with regards to peripheral neuropathy, as will be further addressed in the Remand section below. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The Veteran's representative recently submitted an Appellate Brief, disputing the adequacy of the July 2021 VA hearing examinationspecifically, that it fails to adequately portray the severity of his condition due to its having been conducted in the "sterile quiet of an audiology booth that fails to reflect the severity of his condition in the aspect of normal, daily life." See October 2021 Appellate Brief. However, a presumption of regularity is applied to all manner of VA processes and procedures. Miley v. Principi, 366 F.3d 1343, 1346-47 (Fed. Cir. 2004) ("The presumption of regularity provides that, in the absence of clear evidence to the contrary, the court will presume that public officers have properly discharged their official duties."); Rizzo v. Shinseki, 580 F.3d 1288, 1292 (Fed. Cir. 2008) (applying the presumption of regularity to VA examination). Clear evidence is required to rebut the presumption of regularity. Miley, 366 F.3d at 1347. There was no indication that any of the findings were biased, inaccurate, or incomplete in any way and the examiner conducted a thorough in-person examination. The decibel loss and speech discrimination ranges designated for each level of hearing impairment in Tables VI and VIa were chosen in relation to clinical findings of the impairment experienced by veterans with certain degrees and types of hearing disability. The regulatory history of 38 C.F.R. §§ 4.85 and 4.86 includes revisions, effective June 10, 1999. See 64 Fed. Reg. 25206 (May 11, 1999). In forming these revisions, VA sought the assistance of the Veterans Health Administration (VHA) in developing criteria that contemplated situations in which a veteran's hearing loss was of such a type that speech discrimination tests may not reflect the severity of communicative functioning these veterans experienced or that was otherwise an extreme handicap in the presence of any environmental noise, even with the use of hearing aids. VHA had found through clinical studies of veterans with hearing loss that, when certain patterns of impairment are present, a speech discrimination test conducted in a quiet room with amplification of the sounds does not always reflect the extent of impairment experienced in the ordinary environment. The decibel threshold requirements for application of Table VIa were based on the findings and recommendations of VHA. The intended effect of the revision was to fairly and accurately assess the hearing disabilities of veterans as reflected in a real life industrial setting. 59 Fed. Reg. 17295 (April 12, 1994). At no point in the period on appeal have the Veteran's audiometric results warranted the use of Table VIa. Accordingly, as there is not "clear evidence" of irregularity and the examination was done in accordance with VA's usual practice, the Board finds that the presumption of regularity has not been rebutted. Thus, the Board finds that there is no duty to provide another VA examination or medical opinion. Neither the Veteran nor his representative has raised any other issues with the duty to notify or duty to assist or with the conduct of his Board hearing. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board"); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016). Thus, the Board need not discuss any potential issues in this regard. In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). When there is a balance of positive and negative evidence regarding any material issue, the benefit of the doubt shall be given to the claimant. See 38 U.S.C. § 5107 (b). Reasonable doubt is doubt which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. See 38 C.F.R. § 3.102. The question is whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which event the claim must be denied. Gilbert, 1 Vet. App. at 54. The Board has reviewed all the evidence of record. Although the Board has an obligation to provide adequate reasons and bases supporting its decisions, there is no requirement that the Board discuss every piece of evidence in the record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). The Board will summarize the relevant evidence, as deemed appropriate, and the Board's analysis will focus on what the evidence shows, or fails to show, as to the claim on appeal. 1. Entitlement to a compensable disability rating for service-connected bilateral hearing loss Disability ratings are determined by evaluating the extent to which a veteran's service-connected disability adversely affects the ability to function under the ordinary conditions of daily life, including employment, by comparing the symptomatology with the criteria set forth in the Schedule for Rating Disabilities. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Ratings for service-connected bilateral hearing loss range from noncompensable (0 percent) to 100 percent. These ratings are based on organic impairment of hearing acuity as measured by the results of controlled speech discrimination testing together with the average hearing threshold level as measured by pure tone audiometry tests in the frequencies of 1000, 2000, 3000 and 4000 cycles per second. In evaluating service-connected bilateral hearing loss, disability ratings are derived by a mechanical application of the rating schedule to the numeric designations assigned after audiometric evaluations are performed. See Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992); 38 C.F.R. § 4.85. Diagnostic Code (DC) 6100 provides a table for rating purposes (Table VI) to determine a Roman numeral designation (I through XI) for hearing impairment. The hearing impairment is established by a state licensed audiologist using a controlled speech discrimination test and the pure tone threshold average (which is the sum of the pure tone thresholds at 1000, 2000, 3000, and 4000 Hertz, divided by four). See 38 C.F.R. § 4.85. Table VII is used to determine the percentage rating by combining the Roman numeral designations for hearing impairment of each ear. The horizontal row represents the ear having the poorer hearing and the vertical column represents the ear having the better hearing. Id. Under 38 C.F.R. § 4.86(a), when the pure tone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) is 55 decibels or more, 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. Each ear is to be evaluated separately. See 38 C.F.R. § 4.86(a). The provisions of 38 C.F.R. § 4.86 (b) provide that when the 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. That numeral will then be evaluated to the next higher Roman numeral. See 38 C.F.R. § 4.86(b). Table VIA is also utilized when the audiologist certifies that the use of the speech discrimination test is not appropriate because of language difficulties, inconsistent speech discrimination scores, etc. See 38 C.F.R. § 4.85(c). The rating criteria contemplate speech reception thresholds and ability to hear spoken words on Maryland CNC testing. The functional impact that the Veteran described in his November 2016 hearing testimony 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). The Veteran asserts his bilateral hearing loss warrants a higher rating. He believes his hearing loss is far worse than currently evaluated. During the Board hearing, he testified having recently been provided with a new hearing aid and his hearing loss having worsened over the last couple of years. His bilateral hearing loss disability is currently in receipt of a non-compensable rating under Diagnostic Code (DC) 6100. The Veteran first underwent a VA audiological examination in June 2016, summarized in the chart below, with puretone threshold recorded in decibels. HERTZ 1000 2000 3000 4000 Average RIGHT 20 40 55 70 46.25 LEFT 20 40 70 80 52.5 The audiologist also administered the Maryland CNC word list pursuant to VA regulations. See 38 C.F.R. § 4.85. The Veteran attained a 94 percent score in his right ear and a 92 percent score in his left ear. Applying the results of the June 2016 VA examination to Table VI shows that the Veteran had a level I hearing acuity in the right ear, and a level I hearing acuity in the left ear. Under Table VII, such hearing acuity warrants a 0 percent rating. The findings do not reflect an exceptional pattern of hearing loss, nor did the examiner indicate that speech recognition scores were unreliable; therefore, Table VIA is not for application. Post-Board remand, the Veteran underwent another VA audiological examination in July 2021, summarized in the chart below, with puretone threshold recorded in decibels. HERTZ 1000 2000 3000 4000 Average RIGHT 45 55 65 70 58.75 LEFT 45 55 75 80 63.75 The audiologist also administered the Maryland CNC word list pursuant to VA regulations. See 38 C.F.R. § 4.85. The Veteran attained a 96 percent score in his right ear and an 80 percent score in his left ear. Applying the results of the July 2021 VA examination to Table VI shows that the Veteran had a level II hearing acuity in the right ear, and a level IV hearing acuity in the left ear. Under Table VII, such hearing acuity warrants a 0 percent rating. The findings do not reflect an exceptional pattern of hearing loss, nor did the examiner indicate that speech recognition scores were unreliable; therefore, Table VIA is not for application. The record does not include any further pertinent audiometry during the period under consideration. Although there are audiology notes, such do not provide clear numerical values for pure tone testing (other than stating "WNL" or "severe" hearing loss, i.e., see April 2018 VA audiology note) or merely provide information pertaining to hearing aids (see April and June 2019 VA audiology notes). As the assignment of a disability rating for hearing impairment is derived by mechanical application of the rating schedule to the numeric designations assigned after audiometry evaluations are rendered, there is no doubt as to the proper evaluation to be assigned. Lendenmann, 3 Vet. App. 345; 38 C.F.R. § 4.85, Tables VI-VII, Code 6100. The findings on official audiometry fall squarely within the parameters of the criteria for a noncompensable rating, and that rating reflects the reported functional impairment (cannot hear or understand others without hearing aids, especially in a crowd or background noise; having had to get a new hearing aid due to his hearing loss that have worsened). Factors warranting referral for extraschedular consideration are not shown or alleged. Accordingly, the preponderance of the evidence is against the claim for a compensable rating for bilateral hearing loss prior to July 14, 2021. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). 2. Entitlement to service connection for a bladder condition The Veteran contends his bladder condition is associated with his Agent Orange exposure in service. He testified having symptoms of incomplete bladder emptying, which he alleged to have first noticed around 2012. It is not in question that the Veteran has a current disability, as he has been diagnosed with various bladder conditions throughout the appeal period, to include urinary incontinence, UTI, "incomplete emptying" of bladder, and urinary symptoms status-post lower urinary tract symptoms (LUTS). His service treatment records are silent as to any diagnosis, treatment, or complaints relating to bladder condition, and his November 1970 separation examination shows all clinically normal conditions. However, as noted in the previous Board remand, the Veteran's in-service exposure to Agent Orange has been conceded based on his service in Vietnam. Bladder condition is not one of the diseases noted to be associated with exposure to certain herbicide agents under 38 C.F.R. § 3.309(e). 38 U.S.C. § 1116(a)(1); 38 C.F.R. § 3.309(e). Nonetheless, under Combee, service connection may still be awarded based on that exposure on a direct basis. See Combee v. Brown, 34 F.3d 1039, 1043-44 (Fed. Cir. 1994). The Board is cognizant of the Veteran's representative's statement that bladder cancer has recently been added to the list of conditions presumed to be caused by in-service herbicide agent exposure under the 38 U.S.C. § 1116 (a) (2)pursuant to the National Defense Authorization Act for Fiscal Year 2021. However, in this case, the Veteran has not been diagnosed with bladder cancer anytime during the appeal period, and the Veteran has not contended otherwise. Thus, even acknowledging the recent change of the law, the Veteran does not warrant presumptive service connection for his claimed bladder condition. There is only one medical nexus opinion of record: September 2021 VA examination. After reviewing all pertinent records, the examiner opined that the Veteran's bladder disability is less likely than not related to his military service, to include his in-service agent orange exposure. In doing so, the examiner underlined that the Veteran has symptoms post-procedure done for LUTS for enlarged prostate and noted that an enlarged prostate is a common urological condition for aging men. Additionally, the examiner explained the symptoms of LUTS and referenced treatment records showing the Veteran's various symptoms associated with his enlarged prostate/LUTS/bladder condition. The Board assigns the most probative value to this opinion, as this was furnished after reviewing all pertinent records, supported by concrete factual findings. The Board acknowledges the Veteran's hearing testimony that he has been told by his doctors (although was unable to recall as to exactly whom) that his bladder condition is related to his in-service Agent Orange exposure. The Board notes, that based on this testimony, the Veteran has been afforded the opportunity to provide a release authorizing VA to obtain his records for any private treatment and he has also been afforded the opportunity to undergo a VA examination in September 2021. The Board recognizes that a claimant's sworn testimony is evidence, which the Board must consider, and the Board must "provide adequate reasons or bases for its rejection of the appellant's testimonial evidence," and the evidence of record. Pruitt v. Derwinski, 2 Vet. App. 83, 85 (1992); Suttman v. Brown, 5 Vet. App. 127, 132 (1993); EF v. Derwinski, 1 Vet. App. 324 (1991). However, in this case, none of his obtained treatment records contain any information suggestive of any medical etiology, but only document complaints, diagnosis, and treatment provided for his bladder condition. The Veteran's lay testimony recalling what a physician told him, i.e., "hearsay medical evidence," cannot constitute actual medical evidence, as "the connection between what a physician said and the layman's account of what he purportedly said, filtered as it was through a layman's sensibilities, is simply too attenuated and inherently unreliable to constitute 'medical' evidence." See Robinette v. Brown, 8 Vet. App. 69 (1995). The only medical nexus opinion of record (September 2021 VA examination), which was obtained after reviewing all pertinent records, to include his statements, is negative. The Board also recognizes the Veteran's belief that his bladder condition is related to his in-service Agent Orange exposure. While he is competent to report any symptoms, he is not competent to provide a medical opinion linking his condition with service as such requires complex medical knowledge and training that are generally beyond the competency of a lay witness. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). In summary, the Board concludes that the evidence preponderates against the claim. See Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990). As the preponderance of the evidence is against the claim of service connection for bladder condition, the benefit-of-the-doubt doctrine does not apply, and his claim is denied. REASONS FOR REMAND 1. Entitlement to service connection for peripheral neuropathy, bilateral lower extremities, is remanded. The Veteran attributes his peripheral neuropathy of the bilateral lower extremities to his in-service exposure to Agent Orange. He testified that he first noticed these symptoms around 2011/2012. Although a VA examination/nexus opinion was obtained post-Board remand per Combee v. Brown, 34 F.3d 1039, 1043-44 (Fed. Cir. 1994), the Board regrettably finds another remand necessary. Notably, the September 2021 VA examiner provided a conclusive nexus opinion"right lower extremity neuropathy is due to lumbar radiculopathy, less likely than not from Agent Orange exposure"without providing any explanation or findings in support of such negative nexus opinion. Thus, the Board finds that remand is required for obtaining a new medical addendum opinion. The matter is REMANDED for the following action: Obtain a medical addendum opinion from the September 2021 VA examiner, or another VA examiner, if he is no longer available. The examiner must note review of the complete record, including this remand, and answer the following question with full rationales: Whether it is at least as likely as not (50 percent or greater probability) that the Veteran's current peripheral neuropathy of the bilateral lower extremities is related to an in-service injury, event, or disease, to include the conceded Agent Orange exposure in service. (Continued on the next page) The examiner must provide a complete rationale for any opinion based on the examiner's medical expertise, medical principles, and the evidence in the appellate record. MICHELLE L. KANE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Lee, Catherine 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.