Citation Nr: 21071492 Decision Date: 11/30/21 Archive Date: 11/30/21 DOCKET NO. 16-04 955 DATE: November 30, 2021 ORDER A rating in excess of 10 percent for bilateral hearing loss, to include a compensable rating prior to November 18, 2019, is denied. Service connection for colon cancer and any residuals thereof is granted. REMANDED The claim for service connection for chronic obstructive pulmonary disease (COPD) is remanded. The claim for service connection for coronary artery disease (CAD) as secondary to COPD is remanded. FINDINGS OF FACT 1. The November 18, 2019 VA audiology examination report is the first objective medical evidence of record showing that the Veteran's hearing loss had worsened from the noncompensable levels shown on prior examinations to a compensable degree for Level IV hearing loss in the right ear and Level III in the left ear. 2. The evidence of record shows that it is at least as likely as not that the Veteran's colon cancer developed due to his exposure to radioactive materials in service. CONCLUSIONS OF LAW 1. The criteria for rating in excess of 10 percent for bilateral hearing loss at 10 percent, to include a compensable rating prior to November 18, 2019 have not been met. 38 U.S.C. §§ 1155, 5110; 38 C.F.R.§§ 3.400, 4.85, 4.86, Diagnostic Code 6100. 2. The criteria for service connection for colon cancer and any residuals thereof residuals have been met. 38 U.S.C. § 1110; 38 C.F.R. §§ 3.303, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran honorably served on active duty from December 1971 to November 1973, to include his tour of duty in Germany from June 1972 to November 1973. In an August 2012 rating decision, the Regional Office (RO) granted service connection for bilateral hearing loss initially evaluated as noncompensable, and denied his claims for service connection for COPD, CAD, and colon cancer. The Veteran appealed. In August 2018, the Veteran testified at a Board's hearing, a transcript of which is of record. In April 2019, the Board remanded the claims for further development. In August 2021, the RO granted a rating for hearing loss at 10 percent as of November 18, 2019. In a concurrent supplemental statement of the case, the RO explained the reasons for denying a compensable rating for hearing loss prior to November 18, 2019, and in excess of 10 percent thereafter, as well as the reasons why service connection for COPD, CAD, and colon cancer is not warranted. Increased Rating In seeking an increased rating for his bilateral hearing loss initially evaluated as noncompensable and effectuated from the date of his original claim in February 2011, the Veteran indicated at the August 2018 Board's hearing that the severity level of this disability has worsened since the last VA examination in August 2017. Hearing loss is rated under the schedule for rating hearing impairment disabilities. 38 C.F.R.§§ 4.85, 4.86, Diagnostic Code (DC) 6100. Under DC 6100, the ratings range from noncompensable to totally disabling (100 percent) and are assigned based on the controlled speech discrimination scores, as measured by percentage of word recognition on Maryland CNC Test, in conjunction with the average hearing acuity threshold levels in each ear, as measured in decibels (dB) on a puretone audiometry test in the frequencies of 1000, 2000, 3000, and 4000 Hertz (Hz). Id. Of note, the controlled speech discrimination and puretone tests are required for the purposes of hearing loss evaluations and must be administered by a state-licensed audiologist. 38 C.F.R. § 4.85(a). The schedule establishes 11 successive auditory acuity levels with Roman numeral designations from Level I, for essentially minimal hearing loss, through Level XI for profound deafness. 38C.F.R. §4.85. The Levels are determined by applying Table VI to the specific objective audiometric data obtained upon examination. In Table VI, the vertical lines represent nine categories of the speech discrimination test scores expressed in percentages of word recognition. The horizontal columns represent nine categories of the hearing acuity thresholds expressed in decibels. The Roman numeral designations (Levels I through XI) are determined for each ear by intersecting the vertical row apposite for the percentage of discrimination and the horizontal column apposite for the puretone decibel thresholds. Then, the numeral designations for each ear are combined under Table VII. The horizontal rows represent the ear having the poorer hearing and the vertical columns represent the ear having the better hearing. The specific rating percentage to be assigned is located at the point where the row and column intersect. Here, within the rating period on review, namely, from February 2011, the record reflects three audiology examinations adhering to the regulatory requirements for providing the objective audiometric data. A June 2012 VA audiology examination report reflects an average decibel loss in the Veteran's right ear of 60 and a decibel loss of 51 in the left ear, with speech discrimination (recognition) scores of 96 percent in each ear. Applying Table VI to these figures yields Level II hearing loss in the right ear and Level I in the left ear. Under Table VII, an intersection of II and I yields a noncompensable rating. An August 2017 VA examination report reflects an average decibel loss in the right ear at 56 dB with speech recognition of 86 percent and an average decibel loss in the left ear of 46 with speech recognition of 88 percent. Applying Table VI to these figures yields Level II hearing loss in each ear. Of particular note here is an objective worsening of the Veteran's hearing acuity in his left ear shown at Level II in contrast to Level I as shown in 2012. However, given that the rating schedule sets forth the precise numerical threshold levels at which a particular percentage for hearing loss may be assigned, the application of the rating schedule to the audiometric data is largely mechanical. See Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). This means that even an objective worsening of hearing loss on its own does not always result in a higher rating. Rather, the percentage to be assigned is determined under Table VII, where an intersection of Level II in each ear yields a noncompensable rating. A November 2019 VA examination report reflects an average decibel loss of 60 with speech recognition of 82 percent in the right ear and a decibel loss of 61 with speech recognition of 84 percent in the left ear. Applying Table VI to these figures yields Level IV hearing loss in the right ear and Level III in the left ear. Under Table VII, an intersection of IV and III yields a rating at 10 percent. Accordingly, the Board finds that the objective medical evidence of record supports a rating at the 10 percent level that was assigned. However, a rating in excess of 10 percent is not warranted. The next higher rating at 20 percent may be assigned only for Level III hearing loss in better ear and Level VII or greater in poorer ear, or Levels V in each ear, or Level IV in better ear and Level VI in poorer ear. Absent any objective audiometric data demonstrating these severity levels, a rating at 20 percent may not be assigned. Further given that the criteria for rating hearing loss are successive, meaning that the criteria for a lower rating must be met before a higher rating may be considered, a rating in excess of 10 percent in this case is not warranted at any time. In reaching this conclusion, the Board has considered the regulatory provision for alternative ratings based on the exceptional patterns of hearing loss, that is, when either (a) the puretone threshold at each of the frequencies in 1000, 2000, 3000, and 4000 Hertz is 55 decibels or more, or (b) the puretone threshold is 30 dB or less at 1000 Hz and 70 dB or more at 2000 Hz. See 38 C.F.R. § 4.86. In this case, given that 35 dB at 1000 Hz in the Veteran's right ear and 40 dB at 1000 Hz in his left ear fall outside of regulatory thresholds for exceptional hearing loss patterns, the Board has found no such patterns here. The Board has been apprised of the Veteran's "struggles" with hearing difficulties, as detailed in his wife's August 2012 statement in support of his claim, to include facing significant communication challenges. This is why the Board is particularly sympathetic to the Veteran's circumstances. Further, based on the Veteran's own report of hearing worsening, the Board ordered a re-examination. Here, the Board reiterates that evaluations of hearing loss must be based on the puretone and speech discrimination tests administered by a licensed audiologist. For this reason, neither the Veteran's nor his wife's subjective reports may establish the basis for a specific rating percentage and the Board must rely on the objective audiometric data of record which, as discussed, warrants a rating at no higher than 10 percent. Further, this rating increase may be not be effectuated prior to the date of the VA examination on November 18, 2019. The increased rating award generally may not be effectuated any earlier than the date on which an entitlement to the sought benefit arose, that is, when all legal criteria for the sought benefit have been met. 38 C.F.R. § 3.400(o)(1). In limited circumstances, the increased rating award may be effectuated retroactively up to one year prior to the date of claim but only when an earlier increase in the degree of disability, unlike here, is shown by the objective medical evidence rather than by the subjective reports of the increased hearing difficulties. See 38 U.S.C. § 5110(b)(3); 38 C.F.R. § 3.400(o)(2). Ultimately, the record is devoid of any objective medical evidence, namely, the audiometric data showing an entitlement to a compensable rating at any time prior to the November 18, 2019 VA examination. In cases, like this, where the evidence of record fails to show that the disability picture on review meets all legal criteria for an increased rating for the entire rating period on appeal, the Board must assign different ratings percentages for different stages during the pendency of appeal, a practice known as staging the ratings. See Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2008). As such, prior to November 18, 2019, a noncompensable rating for hearing loss must be assigned. In every case, while rating hearing loss is rather mechanical, the Board does ensure that all its decisions are equable and just. See 38 C.F.R. § 4.6. To that effect, if after careful consideration of all evidence of record, a reasonable doubt arises regarding the specific degree of disability on review, such a doubt is resolved in the Veteran's favor. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. Moreover, in cases where there is a question as to which of the two rating percentages should be assigned and the disability picture on review more closely approximates the criteria for a higher rating, the higher rating is assigned. See 38 C.F.R. § 4.7. In this case, no questions as to which of the two percentages should be assigned or any doubts as to the effective date of the award reasonably arise here. The Veteran has not challenged the adequacy of the VA examinations reports or otherwise provided any evidence that may place a doubt on the accuracy of the collected objective audiometric data. Nor has he provided any objective audiometric data based on which the Board may find an entitlement to a higher rating or an earlier effective date. While sympathetic to the Veteran's circumstances, the Board is ultimately bound by the existing laws as passed by Congress, implemented by VA, and controlled by precedential opinions. See 38 U.S.C. § 7104(c); 38 C.F.R. § 20.105; see also Harvey v. Brown, 6 Vet. App. 416, 425 (1994). The existing law prompts the Board to mechanically apply the rating schedule to the objective audiometric data of record which ultimately fails to show that an entitlement to a compensable rating arose at any time prior to November 18, 2019, or in excess of 10 percent thereafter. Accordingly, a rating in excess of 10 percent for the Veteran's hearing loss, to include a compensable rating prior to November 18, 2019, is denied. Service Connection In seeking service connection for colon cancer and COPD, the Veteran maintains that these disabilities were caused by his exposure to radioactive materials during his service in Oberammergau, Germany, while his CAD is secondary to COPD. In his August 2011 correspondence, the Veteran states that he served as a Military Policeman. While stationed in Germany from June 1972 to November 1973, he provided security for the NATO nuclear weapon stockpiles and other radioactive materials. These military duties involved daily patrols of the buildings storing those materials and he came into contact with them on several occasions. The Veteran further believes that the equipment emitted hazardous nuclear particles that resulted in irreparable damage to his lungs, leading to his development of COPD. In August 2012 statement in support of claim, the Veteran reiterated that he in fact had patrolled military facilities storing radioactive materials. At the August 2018 hearing, the Veteran confirmed his earlier statements under oath as well as submitted a June 2020 statement detailing the nature of his exposures. He further explained that he guarded the nuclear weapons assembly department as well as at least two radiology laboratories. In a July 2021 "buddy" statement, the Veteran former fellow service member, Mr. A.R.T. (Specialist E-4, U.S. Army) states that he and the Veteran underwent Basic and AIT together, and then were stationed in Oberammergau, Germany. Mr. A.R.T. further states that both he and the Veteran were of the same rank performing the same duties, served in the same unit, lived in the same barracks, and have developed similar health problems. After service, A.R.T. has developed prostate cancer and COPD. To the best of his knowledge, other Army buddies from their platoon have also experienced similar illnesses. Over the years, the Veteran also submitted several private medical opinions that his current maladies are etiologically related to his service. With that, he believes that he is entitled to service connection for COPD, CAD, and colon cancer. Colon Cancer At the outset, the Board notes that colon cancer has been recognized as radiogenic disease and may be service connected on a presumptive basis. 38 C.F.R. §§ 3.309, 3.311. However, presumptive service connection for colon cancer is limited only to "radiation-exposed veteran who . . . participated in a radiation-risk activity" within the meaning of 38 U.S.C. § 1112(c) and 38 C.F.R. § 3.309(d). The term "radiation-risk activity" refers to participation in a test involving the atmospheric detonation of a nuclear device or in providing direct logistical support and equipment used at the test sites; service in Hiroshima or Nagasaki or internment as a prisoner of war in Japan between August 6, 1945, and July 1, 1946; or service in which the veteran was monitored through the use of dosimetry badges for exposure of the external body parts to radiation for at least 250 days, or otherwise served for each of the 250 days in a position comparable to a job that would be monitored by the use of dosimetry badges. None of these criteria applies to the Veteran's circumstances. To that end, the RO has exhausted its reasonable attempts to verify the Veteran's claimed exposure to ionizing radiation, to include obtaining the nature of exposure, type of particles, and estimated doses, as required under the regulatory provisions for presumptive service connection. Moreover, the hearing transcript reflects the Veteran's affirmative denial that he has had ever worn a dosimeter badge. Rather expectedly, the RO's research attempts turned out futile, which forecloses any further inquiry into presumptive service connection based on exposure to ionizing radiation. Nonetheless, the lack of evidence documenting the Veteran's exposure to ionizing radiation does not preclude a consideration whether the Veteran may have had other types of exposures to radioactive materials that may have caused his current disabilities. In cases, like this, where the individual circumstances do not meet all legal criteria for presumptive service connection based on the exposure to ionizing radiation, the law protects the Veteran's opportunity to show direct service connection. See Combee v. Brown, 34 F.3d 1039, 1045 (Fed. Cir. 1994). In these circumstances, direct service connection may be established by the evidence of record showing the existence of colon cancer, an in-service exposure to radiation, and a causal link between the two. Id. at 1043. These criteria are met in this case. The Veteran testified that he was an MP in Oberammergau, Germany in the early 1970s. This much is confirmed by his military personnel file. The Board further takes judicial notice that the NATO and U.S. Army in fact were operating the nuclear weapons assembly training center in Oberammergau during the 1970s. The Veteran further credibly attested that several facilities he patrolled on a daily basis included radiology laboratories utilizing radioactive materials clearly marked as such. Further, the Veteran's service treatment records (STRs) document an unexplained hair loss onset within months of his arrival to Germany and continuing for a year through his separation. More specifically, the Veteran arrived in Germany in June 1972 and began losing his hair by January 1973. At his November 1973 separation physical examination, the Veteran's hair loss had been noted as ongoing for approximately one year. Following his separation from service, as reflected in the hearing transcript, the Veteran's hair loss had stopped. Per Veteran's private oncologist, this is the sign of exposure to radioactive materials. A July 2018 correspondence from the Veteran's private oncologist, Dr. T.D.S., MD (received in August 2018) reflects a medical opinion that the Veteran's otherwise unexplained hair loss and probably carcinoma of the colon are related to his exposure to radioactive materials. While the rationale provided in support of this opinion is rather modest, the Board finds no reason to doubt the competency or credibility of the certified oncologist with expertise in oncological disabilities and radiology ultimately concluding that "the Veteran's current health issues are clearly related to previous military service." Of note, however, while Dr. T.D.S. opines that the Veteran's COPD is also related to his service, the record reflects a VA medical opinion to the contrary, which will be discussed in the remand portion of this decision. Otherwise, the Dr. T.D.S.'s opinion as to the Veteran's likely exposure to the radioactive materials and clear etiology of the Veteran's colon cancer is uncontested. Absent any affirmative evidence against a finding that it is at least as likely as not that the Veteran had been exposed to radioactive materials during his service, as shown by the facts of this case, and given the lone uncontested favorable medical opinion that the Veteran's colon cancer has developed as a result of that exposure, which aligns with the fact that colon cancer is a radiogenic disease, the Board finds that the legal criteria for service connection for colon cancer have been met. The Board notes that the Veteran's colon cancer fortunately has been in remission throughout the rating period on appeal and this grant of service connection might not necessarily result in a compensable rating. But any treatment complications and secondary diseases caused or aggravated by colon cancer also are considered service connected. See 38 C.F.R. § 3.310. Accordingly, service connection for colon cancer and any residuals thereof is granted. REASONS FOR REMAND Upon reviewing the Veteran's claims for COPD and CAD, particularly in light of the November 2019 VA examination reports reflecting the negative etiological opinions in contrast to the positive private medical opinions of record, none of which have been acknowledged in the examination reports, the Board has found that an addendum medical opinion is necessary to decide the claims. The November 2019 VA examination of COPD report reflects an opinion that the Veteran had sustained pneumonia during service, but this condition was acute only. There is no evidence of chronicity of care immediately following the Veteran's discharge from active duty. The Veteran was not diagnosed with COPD until a few years ago, which is several decades after his release from active duty. In this significant intervening time span, the Veteran made no respiratory complaints and there is no evidence of any chronicity of care. Further addressing the radiological findings many decades ago, when the Veteran was diagnosed with pneumonia while on active duty, the noted "pathy infiltrates" are the hallmark pathological signs of pneumonia. This does not mean it is COPD. Therefore, the examiner states, "it is quite reasonable to assume that the pneumonia," at which point the report cuts off. As such, the report is incomplete and thus may not be accorded a significant probative value sufficient to deny the claim. Moreover, the Veteran's private oncologist, Dr. T.D.S., opines that the Veteran has severe asthma, COPD, and recurrent lung infections which, in Dr. T.D.S.'s medical opinion, are related to his military service, to include his exposure to radioactive materials. In light of the recent grant of service connection for colon cancer, the fact that the Veteran has had been exposed to radioactive materials during service is no longer in dispute. The November 2019 VA report does not address this theory of entitlement or Dr. T.D.S.'s medical opinion received in August 2018. Further, an August 2018 private Benefits Disability Questionnaire (also submitted prior to the VA examination) reflects the multiple diagnoses of COPD, asthma, and bronchiectasis, along with a medical opinion that the Veteran's asthma for many years led to his COPD. Furthermore, in a June 2018 electronic correspondence, the Veteran's VA pulmonologist, Dr. E.D., MD, expressed a medical opinion that the pneumonia the Veteran had while in the military more likely than not is a cause of the many problems he currently has with his lungs. However, no rationale was provided for the opinion. The November 2019 VA examination report does not even acknowledge asthma, bronchiectasis, or recurrent lung infections, let alone considering their relationship to the Veteran's exposure to radiation materials and/or pneumonia the Veteran had sustained in service. The VA report also leaves unaddressed the Veteran's statement that in Basic he was exposed to a military grade toxic gas that infiltrated his lungs, following which he was hospitalized with pneumonia. The STRs do reflect that the Veteran underwent hospitalization and treatment for pneumonia during Basic in March 1972. Notwithstanding the three favorable medical opinions submitted prior to the VA examination, Section VII of the VA report specifically prompting the examiner to review and discuss the conflicting medical evidence is not filled out. The Board does need a medical opinion to resolve the competing medical evidence of record which as such is insufficient to decide the claim. The November 2019 VA examination of CAD report reflects an opinion of general medicine nurse practitioner that, given significant history of high cholesterol, obesity, and lack of physical activity, which collectively coupled with the Veteran's age can lead to arterial wall plaquing, his CAD is less likely as not secondary to COPD noted to manifest as shortness of breath. The examiner explains that there is no known pathophysiological mechanism between COPD and CAD. Contrary to this conclusion, a September 2018 correspondence from the Veteran's private cardiologist, Dr. D.E.Y., MD of Sough Heart Clinic, reflects an opinion that the Veteran multiple lung problems, to include advanced COPD, are the most likely explanation for his enlarged heart chamber (right ventricle). Again, the VA report is limited to the discussion of COPD and is devoid of any reference to multiple lung problems, while Section VII of the VA report specifically provided for addressing the conflicting medical evidence such as the private medical opinions contrary to the examiner's conclusions is not filled out. Ultimately, the favorable medical opinions of record offer support for the Veteran's contentions. The Board has no reason to doubt the medical professionals' expertise or credibility of their opinions. Unfortunately, these medical opinions offer largely conclusory statements precluding the Board from clearly understanding the likely pathophysiological mechanisms linking the Veteran's current disabilities to his service. The most probative value of medical opinion is derived from its rationale. Moreover, in light of the VA's negative etiological opinion attributing the Veteran's current COPD and CAD to causes other than his service, the Board may not assign these private opinions the sufficient probative weight to grant the sought benefits. Nonetheless, given that these competent medical opinions were unaddressed by the VA examiner, an addendum VA opinion must be obtained. Accordingly, the matters are REMANDED for the following action: Obtain an addendum etiological opinion as to the Veteran's pulmonary and respiratory disabilities, to include asthma, bronchiectasis, and COPD, and his CAD. If the Board's questions cannot be answered without an in-person examination, one should be provided. The examiner is asked to answer the following questions: a) Is it at least as likely as not (meaning probability of 50 percent or greater) that the Veteran's pulmonary and/or respiratory disabilities, however diagnosed, were caused by or otherwise are etiologically related to his service, to include exposure to radioactive materials therein and/or his in-service bout of pneumonia? Why or why not? b) Is it at least as likely as not (meaning probability of 50 percent or greater) that the Veteran's pulmonary and/or respiratory disabilities, however diagnosed, were caused by his colon cancer, to include any associated treatments? Why or why not? c) Is it at least as likely as not (meaning probability of 50 percent or greater) that the Veteran's pulmonary and/or respiratory disabilities, however diagnosed, were aggravated (meaning made worse) by his colon cancer, to include any associated treatments? Why or why not? d) Is it at least as likely as not (meaning probability of 50 percent or greater) that the Veteran's CAD was caused by his pulmonary and/or respiratory disabilities, however diagnosed, to include asthma, bronchiectasis, COPD, and recurrent lung infections? Why or why not? e) Is it at least as likely as not (meaning probability of 50 percent or greater) that the Veteran's CAD was aggravated (meaning made worse) by his pulmonary and/or respiratory disabilities, however diagnosed, to include asthma, bronchiectasis, COPD, and recurrent lung infections his COPD? Why or why not? The examiner should review the entire claims file, to include this decision explaining the reasons why the medical evidence of record is insufficient to decide the claim. In forming the opinion, the examiner must accept that the Veteran was exposed to radioactive materials in service as described at his Board hearing. The examiner should review, consider, and expressly discuss the private etiological opinions of record, and should resolve any conflicting evidence from a medical perspective. In forming own opinion, the examiner should not equate the lack of continuity of care to the affirmative negative evidence and is asked to provide a thorough and sound rationale for every conclusion reached. MATTHEW W. BLACKWELDER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Alex Bardin, Associate 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.