Citation Nr: 21072355 Decision Date: 12/02/21 Archive Date: 12/02/21 DOCKET NO. 19-25 462 DATE: December 2, 2021 ORDER Entitlement to a compensable rating for bilateral hearing loss is denied. REMANDED Entitlement to service connection for ampullary carcinoma is remanded. Entitlement to service connection for a right knee disability is remanded. Entitlement to total disability due to individual unemployability is remanded. FINDING OF FACT Veteran's bilateral hearing has been manifested by hearing acuity of no worse than Level I in the right ear and no worse than Level I in the left ear. CONCLUSION OF LAW The criteria for a 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. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 1967 to April 1974, and from January 1991 to September 1991, with many additional years of service in the Reserves. The Board notes that the Veteran had an exemplary record during his decades of service in the Reserves. These matters are on appeal to the Board of Veterans' Appeals (Board) from March and August 2018 rating decisions. A hearing was held by the undersigned Veterans Law Judge in September 2020; a transcript is of record. The Veteran's claims were previously remanded by the Board in a December 2020 decision. The Board finds that the RO has substantially complied with the December 2020 Board remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). However, although the Board sincerely regrets the additional delay, a remand is again necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's claim so that he is afforded every possible consideration. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. This appeal has been advanced on docket pursuant to 38 C.F.R. § 20.900 (c); 38 U.S.C. § 7107 (a)(2). Entitlement to a compensable rating for bilateral hearing loss The Veteran contends that he is entitled to a higher rating because his hearing has worsened since he was previously evaluated. Evaluations of defective hearing range from noncompensable to 100 percent based on organic impairment of hearing acuity as measured by the results of a controlled Maryland CNC speech discrimination test together with the average hearing threshold level measured by pure tone audiometry tests in the frequencies of 1000, 2000, 3000, and 4000 cycles per second (Hertz). 38 C.F.R. § 4.85, Diagnostic Code 6100. To evaluate the degree of disability from bilateral service-connected hearing loss, the schedule establishes 11 auditory hearing acuity levels designated from Level I for essentially normal hearing acuity through Level XI for profound deafness. 38 C.F.R. § 4.85, Tables VI and VII. An exceptional pattern of hearing impairment occurs when the pure tone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) is 55 decibels or more. 38 C.F.R. § 4.86(a). In that situation, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or Table VIA, whichever results in the higher numeral. Further, when the average pure tone threshold is 30 decibels or less at 1000 Hertz, and 70 decibels or more at 2000 Hertz, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or Table VIA, whichever results in the higher numeral, and that numeral will then be elevated to the next higher numeral. 38 C.F.R. § 4.86(b). A February 2021 VA examination reveals that the Veteran reported gradual hearing loss beginning in the late 1970s/early 1980s. 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: 02/20/2021 HERTZ 1000 2000 3000 4000 Avg CNC RIGHT 20 20 30 50 30 96% LEFT 20 25 45 60 38 92% 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 0 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 the Veteran's bilateral hearing loss is not warranted. The Board expressly acknowledges its consideration of the lay evidence of record when adjudicating this claim, including worsening of hearing ability. The Veteran is competent to report difficulty with his hearing; however, disability ratings for hearing loss are derived from a mechanical application of the rating schedule to the numeric designations resulting from audiometric testing. See Lendenmann v. Principi, 3 Vet. App. 345 (1992). The rating criteria contemplate speech reception thresholds and ability to hear spoken words on Maryland CNC testing. The functional impact that the Veteran describes, is contemplated by the rating criteria. Doucette v. Shulkin, 28 Vet. App. 366 (2017). The Veteran's main complaint is reduced hearing acuity and clarity, which is what is contemplated in the rating assigned. See Rossy v. Shulkin, 29 Vet. App. 142, 145 (2017). Accordingly, the preponderance of the most probative evidence is against the claim of entitlement to a compensable rating for hearing loss. In reaching the conclusion above, the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the Veteran's claim, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND 1. Entitlement to service connection for ampullary carcinoma is remanded. The Veteran has asserted that his ampullary carcinoma is due to exposure to herbicide agents. The Veteran was exposed to herbicides during his Vietnam service. However, this disability is not one of the enumerated disorders presumed due to exposure to herbicide agents under 38 C.F.R. § 3.309(e). Nevertheless, the Veteran may still establish service connection with proof of direct causation. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). In March 2021, a VA medical opinion was obtained regarding the etiology of the Veteran's ampullary carcinoma. The VA examiner did not provide an opinion on whether it was more or less likely than not that the Veteran's ampullary carcinoma was related to his military service. Furthermore, the examiner did not discuss the opinion of Dr. M. that indicated that it was at least as likely as not that the Veteran's medical issues (including cancer) were the result of his long-term exposure to Agent Orange or its constituent chemicals. The March 2021 VA opinion is inadequate because it did not address the opinion of Dr. M. Thus, remand is unfortunately necessary to obtain an adequate opinion. Barr v. Nicholson, 21 Vet. App. 303 (2007) (holding that once VA undertakes an examination, it must provide an adequate one). 2. Entitlement to service connection for a right knee disability is remanded. The Veteran contends that his current right knee pain and other right knee issues are related to or aggravated by his military service. Specifically, the Veteran contends his current right knee disability is due to an injury sustained in 1993. In its December 2020 remand decision, the Board directed the AOJ to obtain an examination of the Veteran's right knee and specifically to consider service treatment notes from August 1993 showing the Veteran received treatment for right knee pain and a right knee injury. The Board notes that the Veteran's service treatment notes indicate on August 5, 1993, he reported pain in the right knee for the last 13 days following an injury. The Board also notes that the Veteran had active points for service on July 14, July 22, July 29, and August 5, 1993. The August 5, 1993, treatment note also indicates a history of arthritis, tenderness of the knee, and a diagnosis of bursitis. The Veteran was afforded an examination in February 2021. The examiner indicated that there was no diagnosis of bursitis or other right knee injury in August 1993 contained in the file. This is an inaccurate factual premise and, thus, the examiner's opinion is entitled to no probative value. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (holding that an opinion based upon an inaccurate factual premise has no probative value). Thus, as the February 2021 examiner's opinion was inadequate, remand is required for a new opinion. Barr v. Nicholson, 21 Vet. App. 303 (2007) (holding that once VA undertakes an examination, it must provide an adequate one). 3. Entitlement to total disability due to individual unemployability is remanded. Finally, because a decision on the remanded issues of entitlement to service connection for ampullary carcinoma and a right knee disability could significantly impact a decision on the issue of total disability due to individual unemployability, the issues are inextricably intertwined. A remand of the claim for TDIU is required. The matters are REMANDED for the following action: 1. Obtain an addendum opinion from an appropriate clinician regarding whether the Veteran's ampullary carcinoma is at least as likely as not related to exposure to herbicide agents or other toxic exposures during the Veteran's service. The examiner is directed to address the private opinion of Dr. M. that the Veteran's condition was at least as likely as not due to his exposure to Agent Orange or its constituent chemicals. 2. Obtain a VA examination for the Veteran's right knee. The claims file, including a complete copy of this remand, must be made available for review of the Veteran's pertinent medical history. Any evaluations, studies, and tests deemed necessary by the examiner should be conducted. Any diagnoses should be identified. Active military service includes any period of active duty for training during which the individual concerned was disabled or died from a disease or injury incurred in or aggravated in line of duty, or any period of inactive duty training during which the individual concerned was disabled or died from injury incurred in or aggravated in line of duty. 38 U.S.C. § 101(21), (24);38 C.F.R. § 3.6(a), (d). In reaching his or her conclusions described below, the examiner must specifically consider and address the significance of the Veteran's August 1993 diagnosis of bursitis, as well as the October 1993 and March 2006 X-ray findings of calcifications in the medial collateral ligament. The examiner is also reminded that under VA regulations, symptoms of pain can constitute a disability. (a.) For any diagnosed right knee disability, the examiner is asked to determine whether there is clear and unmistakable evidence that such preexisted the Veteran's active service. (The term "clear and unmistakable evidence" has been defined as evidence that "cannot be misinterpreted and misunderstood, i.e., it is undebatable.") (b.) With respect to any diagnosed right knee disability that preexisted the Veteran's service, the examiner is asked to indicate whether there is clear and unmistakable evidence that the preexisting disability was not permanently aggravated as a result of active service. (c.) With respect to any diagnosed right knee disability that did not preexist service, the examiner is asked to indicate whether it is at least as likely as not (i.e., there is a 50 percent or greater probability) that the disability is the result of disease or injury incurred in service or whether such began during service. 3. Complete any necessary development required to substantiate the claim for TDIU. In so doing, ask the Veteran to complete and return VA Form 21-8940 (Veteran's Application for Increased Compensation Based on Unemployability) and VA Form 21-4192 (Request for Employment Information in Connection with Claim for Disability Benefits). L. M. BARNARD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M.D. Taylor, 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.