Citation Nr: 21072844 Decision Date: 12/06/21 Archive Date: 12/06/21 DOCKET NO. 18-07 492 DATE: December 6, 2021 ORDER Entitlement to service connection for a left hand condition is denied. Entitlement to an initial compensable rating for bilateral hearing loss is denied. Entitlement to service connection for a cervical condition is denied. Entitlement to service connection for tinnitus is granted. Entitlement to service connection for a right hand condition is denied. REMANDED Entitlement to service connection for a heart condition, to include ischemic heart disease is remanded. FINDINGS OF FACT 1. The preponderance of the evidence is against finding that the left hand condition began during active service, or is otherwise related to an in-service injury or disease. 2. The Veteran's bilateral hearing has been manifested by hearing acuity of no worse than Level VIII in the right ear and no worse than Level I in the left ear. 3. The preponderance of the evidence is against finding that the cervical condition began during active service or is otherwise related to an in-service injury or disease. 4. The Veteran's tinnitus is related to in-service noise exposure 5. The preponderance of the evidence is against finding that the right hand condition began during active service, or is otherwise related to an in-service injury or disease. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a left hand condition have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for entitlement to 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. 3. The criteria for entitlement to service connection for a cervical condition have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. 4. The criteria for entitlement to service connection for tinnitus have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. 5. The criteria for entitlement to service connection for a right hand condition have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty with the Navy from April 10, to July 22, 1966 and from September 1966 to September 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from December 2017 and January 2018 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO). In the February 2018 VA Form 9, the Veteran elected a video conference hearing; however, the Veteran withdrew that request in June 2021 Correspondence. As such, no hearing was held. Subsequent to the January 2018 statement of the case, additionally VA and private treatment records were associated with the claims file. In August 2021 and October 2021, the Veteran waived review of the evidence by the Agency of Original Jurisdiction. 38 C.F.R. § 20.1305 (c). As such, the Board may properly consider such evidence in the first instance. The Board also notes while the Veteran has expressly filed a claim of service connection for ischemic heart disease, in light of Borkowski v. Shinseki, 23 Vet. App. 79, 85 (2009) the Board finds that it is appropriate to recharacterize the claim more broadly as one of entitlement to service connection for a heart condition, to include ischemic heart disease. Increased Rating 1. Entitlement to an initial compensable rating for bilateral hearing loss The Veteran contends that the severity of his bilateral hearing loss warrants a compensable rating. 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 November 2017 VA examination reveals that the Veteran reported he cannot always hear conversations clearly and asks for repetition often. He also reported that he turns his television up loud, but it is still unclear. 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 55 70 70 55 48 LEFT 20 35 55 60 42 92 Applying the results to Table VI, the findings yield a numeric designation of Level VIII in the right ear and Level I in the left ear. Entering the resulting bilateral numeric designation of Level VIII for the right ear and Level I for the left ear to 38 C.F.R. § 4.85, Table VII, equates to a noncompensable disability rating under Diagnostic Code 6100. An exceptional pattern of hearing impairment under 38 C.F.R. § 4.86 was not shown. A July 2019 VA examination reveals that the Veteran reported difficulty hearing in noise and quiet without his hearing aids. 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 35 60 70 65 58 96 LEFT 30 45 60 50 46 96 Applying the results to Table VI, the findings yield a numeric designation of Level II in the right ear and Level I in the left ear. Entering the resulting bilateral numeric designation of Level II for the right ear and Level I for the left ear to 38 C.F.R. § 4.85, Table VII, equates to a noncompensable 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 the Veteran's contentions that he has difficulty hearing in both noisy and quiet environments. 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). Service Connection Generally, service connection may be established if the evidence demonstrates that a current disability resulted from a disease or injury incurred in or aggravated by active-duty service. 38 C.F.R. § 3.303. To that end, service connection may be established for any disease diagnosed after discharge, when all the evidence, including that pertinent to the period of service, establishes the disease was incurred during active-duty service. 38 C.F.R. § 3.303 (d). In order to prove service connection, there must be competent and credible evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus or link between the current disability and the in-service disease or injury. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). 2. Entitlement to service connection for a left hand condition 3. Entitlement to service connection for a cervical condition 4. Entitlement to service connection for a right hand condition The Veteran contends that his bilateral hand condition and cervical condition is related to his active service. The Veteran's VA treatment records indicate that he has diagnoses of degenerative joint disease of the hands and degeneration of the cervical intervertebral disc. However, the Veteran's service treatment records are silent for any complaints of or treatment for bilateral hand or cervical conditions. Moreover, the Veteran has not provided any lay statements as to the possible etiology of his diagnosed conditions. Also, his VA treatment records do not indicate any possible etiologies for his conditions that are related to his service in the Navy. The Board notes that a VA examination or opinion must be obtained if there is (1) competent evidence of a current disability; (2) evidence of an in-service event, injury, or illness; (3) an indication that a current, claimed disability may be associated with the Veteran's service or another service-connected disability; and (4) the record contains insufficient competent medical evidence to make a decision. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). Here, the Veteran was not afforded VA examinations and no VA opinions were obtained regarding his bilateral hand and cervical conditions, but the Board concludes that such is not necessary. While there is competent evidence of current diagnoses, there is no credible indication of any in-service event. As the evidence does not establish that an event, injury, or disease occurred in service, the Board finds that, pursuant to McLendon, VA examinations and/or VA opinions are not warranted. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). Accordingly, entitlement to service connection for right hand, left hand, and cervical conditions is denied. In reaching the above decision, the Board considered the doctrine of reasonable doubt; however, as the preponderance of the evidence is against the Veteran's claim, the doctrine does not apply. Gilbert, 1 Vet. App. at 54; 38 U.S.C. § 5107; 38 C.F.R. § 3.102. 5. Entitlement to service connection for tinnitus The Veteran contends that he has a diagnosis of tinnitus that is related to his service. The Veteran's DD-214 shows that the Veteran's military occupational specialty (MOS) in the Navy was an electrical repairman. His military personnel records reveal that he earned the Vietnam Service Medal and Ribbon with one bronze star and the Republic of Vietnam Campaign and Ribbon with device for service aboard the U.S.S. McCaffery (DD 860) while in the combat zone in 1967. Pursuant to the Duty MOS Noise Exposure Listing, the Veteran's MOS is shown to have a "Moderate" probability of exposure to hazardous noise. Therefore, the Board concedes that that the Veteran was exposed to hazardous noise while in service. In November 2017, the Veteran was afforded a VA examination for his reported tinnitus. During the examination, the Veteran reported that he has tinnitus at times, but not regularly or to a bothersome degree. The examiner opined that the Veteran's tinnitus was less likely than not caused by or a result of military noise exposure because the Veteran denied recurrent tinnitus. The Veteran was afforded another VA examination in July 2019. He reported that his tinnitus started while he was in the service. The examiner checked "yes" to recurrent tinnitus, and opined that his tinnitus was at least as likely as not caused by or the result of his military noise exposure. The examiner's opinion was based on the Veteran's MOS and high levels of noise reported from 5-inch guns and the engine room. After careful consideration of the evidence of record, the Board finds that the preponderance of the evidence supports a finding that the Veteran has a diagnosis of tinnitus that is at least as likely as not related to in-service hazardous noise exposure. The Board has considered both the November 2017 and July 2019 VA medical opinions, but finds that the July 2019 VA examination is more probative as the July 2019 VA examiner considered all the evidence of record, to include the Veteran's reports of recurrent tinnitus. See Dalton v. Nicholson, 21 Vet. App. 23, 39-40 (2007); see also Nieves- Rodriguez v. Peake, 22 Vet. App. 295 (2008). Accordingly, entitlement to service connection for tinnitus is granted. REASONS FOR REMAND 6. Entitlement to service connection for a heart condition, to include ischemic heart disease is remanded. Although the Board regrets the additional delay, a remand is 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. VA's duty to assist includes a duty to provide a medical examination or obtain a medical opinion where it is deemed necessary to decide on the claim. 38 U.S.C. § 5103A (d); 38 C.F.R. § 3.159 (c)(4); Duenas v. Principi, 18 Vet. App. 512 (2004); Robinette v. Brown, 8 Vet. App. 69 (1995); McLendon v. Nicholson, 20 Vet. App. 79 (2006). In addition, once VA undertakes the effort to provide an examination when developing a service connection claim, even if not statutorily obligated to do so, it must provide an adequate one or, at a minimum, notify the claimant why one will not or cannot be provided. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). The Veteran was afforded a VA examination in November 2017 and an addendum medical opinion was completed in December 2017. At the time, the VA examiner opined that the Veteran did not have a diagnosis of ischemic heart disease. Subsequent to the November 2017 and December 2017 VA opinions, new medical evidence was added to the claims file which indicate that the Veteran has been diagnosed with additional heart conditions. Accordingly, the Board finds that a new VA examination is necessary to consider the Veteran's current heart conditions and whether his diagnosed heart conditions are related to his service. Additionally, as previously noted, the Veteran served aboard the U.S.S. McCaffery (DD 860) and entered the combat zone in 1967 earning Vietnam Campaign Medals. However, a formal finding is not of record to confirm whether the Veteran is a Blue Water Veteran under 38 U.S.C. § 1116A resulting in presumed exposure to herbicide agents. Therefore, the Board finds that a remand is needed to verify the Veteran's in-service herbicide exposure. The matters are REMANDED for the following actions: 1. Attempt to verify the Veteran's in-service exposure to herbicide agents as the Veteran was stationed aboard U.S.S. McCaffery (DD 860) in 1967. If more details are needed, contact the Veteran to request the information. If there is still insufficient information to verify exposure to herbicide agents, issue a Formal Finding outlining the steps taken to assist the Veteran and notify the Veteran of VA's inability to verify the in-service herbicide agent exposure. 2. After the above-referenced development is completed, schedule the Veteran for a VA examination with an appropriate clinician for his claimed heart conditions. The examiner must review the claims file. The examiner is asked to provide a response to the following: Are the Veteran's diagnosed heart conditions at least as likely as not related to in-service exposure to herbicide agents? The examiner is advised that a negative opinion cannot be based solely on the fact that the Veteran's diagnosed heart conditions are not on the list of diseases that are presumptively associated with exposure to herbicide agents. Any opinion expressed should be accompanied by a complete rationale. L. M. BARNARD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Hartford, 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.