Citation Nr: 21007128 Decision Date: 02/08/21 Archive Date: 02/08/21 DOCKET NO. 17-25 646 DATE: February 8, 2021 ORDER Entitlement to service connection for prostate cancer is denied. Entitlement to an initial compensable disability rating for bilateral hearing loss is denied. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities, prior to September 12, 2014, is denied. FINDINGS OF FACT 1. The Veteran was not exposed to herbicide agents during his service in the Republic of Vietnam. 2. The Veteran’s prostate cancer was not incurred during his period of active service; any current prostate cancer is unrelated to service. 3. Audiometric examinations correspond to no greater than a level II hearing loss for the right ear, and no greater than a level III hearing loss for the left ear. 4. Prior to September 12, 2014, the Veteran’s service-connected disabilities did not prevent him from securing or following a substantially gainful occupation. CONCLUSIONS OF LAW 1. The criteria for service connection for prostate cancer are not met. 38 U.S.C. §§ 1110, 1131, 5107 (2018); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2019). 2. The criteria for an initial compensable rating for bilateral hearing loss have not been met. 38 U.S.C. § 1155 (2018); 38 C.F.R. §§ 4.1-4.14, 4.85, Diagnostic Code 6100, 4.86 (2019). 3. Prior to September 12, 2014, a TDIU due to the Veteran’s service-connected disabilities is not warranted. 38 U.S.C. §§ 1155, 5107 (2018); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty with the United States Navy from November 1968 to August 1970. This appeal has been advanced on the Board’s docket pursuant to 38 C.F.R. § 20.900(c). 38 U.S.C. § 7107 (a)(2). The Veteran’s claim was previously before the Board in August 2018 but was remanded for further development. Specifically, the Agency of Original Jurisdiction (AOJ) was directed to obtain an opinion as to whether the Veteran was exposed to herbicides. In addition, the AOJ was required to schedule to the Veteran for a VA hearing loss examination to determine the current severity of the Veteran’s bilateral hearing loss. Finally, the AOJ was required to adjudicate the Veteran’s claim for entitlement to TDIU. An opinion regarding exposure to herbicides was obtained in November 2018. The Veteran was also provided with a VA hearing loss examination to determine the current severity of his bilateral hearing loss in September 2018. Finally, the Veteran’s claim for TDIU was adjudicated in a December 2020 statement of the case. Accordingly, the Board finds there has been substantial compliance with the remand instructions. See Stegall v. West, 11 Vet. App. 268, 271 (1998); see also D’Aries v. Peake, 22 Vet. App. 97, 105 (2008). Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. In order to prevail on the issue of service connection there must be competent evidence of a current disability; medical evidence, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and competent evidence of a nexus between an in-service injury or disease and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999); Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). 1. Entitlement to service connection for prostate cancer The Veteran’s VA treatment record note a current diagnosis of prostate cancer, beginning in September 2014. The Veteran contends that his current his current prostate cancer was caused by exposure to herbicide agents, to include Agent Orange, during his period of active service. The Veteran asserts that he served on the U.S.S. Hancock, deployed to the Gulf of Tonkin, during his active service. The Veteran’s service on the U.S.S. Hancock during his period of active service is verified by his military records. A veteran who served in the Republic of Vietnam between January 9, 1962, and May 7, 1975, is presumed to have been exposed to certain designated herbicide agents during such service, absent affirmative evidence to the contrary. Service in the Republic of Vietnam includes service in other locations if the conditions of service involved duty or visitation in Vietnam. 38 U.S.C. § 1116(f); 38 C.F.R. § 3.307(a)(6)(iii). Service connection based on exposure to the designated herbicide agents will be presumed for certain specified diseases that become manifest to a compensable degree within a specified period of time in the case of certain diseases. The diseases are associated with herbicide exposure for purposes of the presumption include diabetes mellitus type II and ischemic heart disease. 38 U.S.C.§ 1116 (a)(2); 38 C.F.R. § 3.309. The Blue Water Navy Vietnam Veteran's Act, which took effect on January 1, 2020, provides in pertinent part that veterans who served "offshore of the Republic of Vietnam [between] January 9, 1962 [and] May 7, 1975, shall be presumed to have been exposed during such service to an herbicide agent unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service." 38 U.S.C. § 1116A(b). A given location shall be considered "as being offshore of Vietnam if the location is not more than 12 nautical miles seaward of a line commencing on the southwestern demarcation line of the waters of Vietnam and Cambodia and intersecting [certain defined] points." 38 U.S.C. § 1116A. A November 2020 VA memorandum denying exposure to herbicides, to include Agent Orange has been associated with the claims file. The VA memorandum was completed following a review of the Veteran’s military records, ship deck logs, and documented history of the U.S.S. Hancock. He served on this ship from March 3, 1969 to August 3, 1970. A professional researcher from the Veterans Benefits Administration, Compensation Service, Records Research Center, completed comprehensive research on the Veteran’s claimed exposure event. The researcher concluded that no evidence was located to show that the U.S.S. Hancock entered the territorial waters of Vietnam while the Veteran was aboard. The researcher noted that the U.S.S. Hancock was conducting special operations “on Yankee Station in the northern Gulf of Tonkin from January 1-16 [1969] when she was in Subic Bay, R[epublic of the] P[hilippines], for a ten day period of repairs. It then returned to Yankee Station on January 27, 1969. It was in Alameda, California from March 3, 1969 to August 2, 1979. According to deck logs, the ship was “on station at Yankee Station in the Gulf of Tonkin on September 1 [1969] and departed there on September 25 [1969] for Subic Bay.” The ship then “…departed Subic Bay on October 2 [1969] to return to Yankee Station, departing there on October 26 [1969] for Sasebo, Japan.” In January and March 1970, the ship had periods of Special Operations “on Yankee Station in the Gulf of Tonkin.” Then on April 15, 1970, the ship arrived in Alameda, California, where it remained for upkeep and training until October 22, 1970. The Veteran had left the ship in August 1970. The memorandum concluded that the ship did not travel along the rivers of Vietnam or traverse the territorial offshore waters of Vietnam. Additionally, the Board takes judicial notice that Yankee Station is not within 12 miles of the coast of the Republic of Vietnam. Accordingly, the Board finds that the Veteran’s exposure to herbicides, to include Agent Orange, cannot be conceded. In addition, an October 2018 VA medical opinion states that the Veteran’s current prostate cancer was less likely than not related to exposure to herbicides, to include Agent Orange. The opinion states: Given the lack of information in the medical records indicating significant herbicide exposure aboard the [U.S.S.] Hancock, given the lack of herbicide-related disease found in [service treatment records], and given the alternative non-herbicide risk factors for prostate cancer such as advanced age, family history of prostate cancer in his father, elevated BMI, elevated lipids, elevated blood sugar, hypertension and metabolic syndrome, the above opinion was formulated. Further, the October 2018 VA medical opinion concludes it was less likely than not that the Veteran was exposed to herbicides, to include Agent Orange, while serving on the U.S.S. Hancock in he Gulf of Tonkin. The opinion reasons: While some non-medical and military literature of Agent Orange exposure review find that certain combat aircraft from offshore carriers flew sorties while at relatively low altitudes during the course of the war when Agent Orange was actively being sprayed (1962-1972), there is no evidence in this file or in the available medical literature of significant Agent Orange exposure at the [U.S.S.] Hancock during that time frame. Based on the above discussed evidence, the Board finds that entitlement to service connection for prostate cancer is not warranted. The Board acknowledges the Veteran’s contention that his current prostate cancer was caused by exposure to herbicides, to include Agent Orange, during his period of active service. Lay persons are competent to provide opinions on some medical issues. Kahana, 24 Vet. App. at 435. He is not competent to identify an herbicide agent as specified in 38 C.F.R. § 3.307(a)(6), as he does not have the requisite chemical knowledge. In this case, he has professed no specialized ability to detect herbicide agents in the environment, outside of labeled containers, and his assertions of exposure are essentially speculative. See Bardwell v. Shinseki, 24 Vet. App. 36 (2010). His lay statements alone are not sufficient to establish that exposure to herbicide agents actually occurred, and his assertions must be weighed against other evidence of record. Finally, the probative evidence of record does not establish that the Veteran had a malignant tumor within a year of his completion of service. As noted above, the Veteran was not diagnosed with prostate cancer until more than four decades after his completion of service. Additionally, the probative medical evidence does not establish a continuity of symptomatology for his prostate cancer. Accordingly, the provisions of presumptive service connection do not apply. See 38 C.F.R. § 3.303(b), (c). The Board concludes that the preponderance of the evidence is against the claim for service connection for the Veteran’s prostate cancer. The benefit of the doubt rule therefore does not apply, and service connection for this disability is not warranted. Increased Rating Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Ratings are assigned based on the average impairment of earning capacity resulting from a service-connected disability. 38 C.F.R. § 4.1. Where two disability ratings are potentially applicable, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. In deciding this appeal, the Board has considered whether separate ratings for different periods of time, based on the facts found, are warranted, a practice of assigning ratings referred to as “staging the ratings.” See Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2008). 2. Entitlement to an initial compensable disability rating for bilateral hearing loss The Veteran claims entitlement to a compensable disability rating for bilateral hearing loss. The Veteran was originally service connected for bilateral hearing loss and assigned a noncompensable disability rating, effective September 15, 2013, in a July 2014 rating decision. As in this case, where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). In evaluating hearing loss under the schedular criteria, disability ratings are derived by a mechanical application of the ratings schedule to the numeric designations assigned after audiometric evaluations are rendered. See Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). The ratings schedule provides a table for ratings purposes (Table VI) to determine a Roman numeral designation (I through XI) for hearing impairment. Table VII is used to determine the percentage evaluation by combining the Roman numeral designations for hearing impairment in both ears. See 38 C.F.R. § 4.85. When the pure tone threshold at each of the four specified frequencies (1,000, 2,000, 3,000, and 4,000 Hertz) is 55 decibels or more, Table VI or Table VIa is to be used, whichever results in the higher numeral. Each ear will be evaluated separately. 38 C.F.R. § 4.86(a). Additionally, when the pure tone threshold is 30 decibels or less at 1,000 Hertz, and 70 decibels or more at 2,000 Hertz, Table VI or Table VIa is to be used, whichever results in the higher numeral. Thereafter, that numeral will be elevated to the next higher numeral. 38 C.F.R. § 4.86 (b). During the period on appeal, the Veteran's bilateral hearing loss was evaluated in three audiological examinations completed in April 2014, August 2015, and again in September 2018. At his April 2014 examination, the Veteran's pure tone thresholds, in decibels were as follows: HERTZ 1000 2000 3000 4000 Avg. RIGHT 20 25 45 60 38 LEFT 20 15 40 45 30 Speech audiometry using the Maryland CNC word list revealed speech recognition ability of 100 percent in the right ear and of 94 percent in the left ear. The results do not present an exceptional pattern of hearing impairment. He described the functional impact of his hearing loss as having difficulty hearing the television, soft female voices, and speech during background noise. Applying the results to Table VI yields a finding of Level I hearing loss in the right ear, and Level I hearing loss in the left ear. Where hearing loss is at Level I in the right ear, and Level I in the left ear, a noncompensable disability rating is assigned under Table VII in 38 C.F.R. § 4.85. At his August 2015 examination, the Veteran’s pure tone thresholds, in decibels were as follows: HERTZ 1000 2000 3000 4000 Avg. RIGHT 35 40 60 65 50 LEFT 40 40 55 55 47.50 Speech audiometry using the Maryland CNC word list revealed speech recognition ability of 94 percent in the right ear and of 94 percent in the left ear. The results do not present an exceptional pattern of hearing impairment. He described the functional impact of his hearing loss as needing to turn his hearing aids up and having problems hearing his wife speaking to him. Applying the results to Table VI yields a finding of Level I hearing loss in the right ear, and Level I hearing loss in the left ear. Where hearing loss is at Level I in the right ear, and Level I in the left ear, a noncompensable disability rating is assigned under Table VII in 38 C.F.R. § 4.85. On the authorized audiological evaluation in September 2018, pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 Avg. RIGHT 25 35 50 60 42.5 LEFT 25 40 55 60 45 Speech audiometry using the Maryland CNC word list revealed speech recognition ability of 88 percent in the right ear and of 82 percent in the left ear. The results do not present an exceptional pattern of hearing impairment. He described the functional impact of his hearing loss as having difficulty hearing and understanding conversations, especially in crowded and noisy environments, and that he asks people to repeat themselves. Applying the results to Table VI yields a finding of Level II hearing loss in the right ear, and Level III hearing loss in the left ear. Where hearing loss is at Level II in the right ear, and Level III in the left ear, a noncompensable disability rating is assigned under Table VII in 38 C.F.R. § 4.85. The Veteran’s hearing loss results in a functional impairment of not being able to adequately hear other in conversation and the need to frequently as people to repeat themselves. All the Veteran’s hearing loss symptoms and described hearing impairments are contemplated by the schedular rating criteria. The Veteran’s hearing loss disability has manifested in difficulty hearing and understanding speech, which causes difficulties functioning in social and occupational environments. The schedular rating criteria specifically provide for ratings based on all levels of hearing loss in various contexts, as measured by both audiometric testing and speech recognition testing. Doucette v. Shulkin, 28 Vet. App. 366 (2017). Based on a review of the evidence, the Board finds that an initial compensable disability rating is not warranted. A mechanical application of the rating criteria shows the Veteran’s hearing loss disability does not meet the criteria for a higher rating. In reaching this conclusion, the Board has determined that the VA medical examinations are highly probative evidence. The Veteran’s lay statements as to his symptoms are not competent evidence of hearing loss as it conforms to VA rating criteria. Therefore, the preponderance of the credible evidence is against a compensable disability rating. To the extent that the Board herein denies a higher rating, the preponderance of the evidence is against such an award. Therefore, the benefit of the doubt doctrine is not applicable in such regard, and higher ratings are not warranted. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. TDIU Total disability is considered to exist when there is any impairment which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340(a)(1). A total disability rating for compensation purposes may be assigned on the basis of individual unemployability: that is, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. In such an instance, if there is only one service-connected disability, it must be rated at 60 percent or more; if there are two or more service-connected disabilities, at least one disability must be rated at 40 percent or more, and sufficient additional disability must bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). Individual unemployability must be determined without regard to any nonservice-connected disabilities or the Veteran’s advancing age. 38 C.F.R. §§ 3.341(a), 4.19; Van Hoose v. Brown, 4 Vet. App. 361 (1993). 3. Entitlement to TDIU, prior to September 12, 2014 In August 2018, the Board remanded the Veteran’s TDIU claim. In an August 2018 Decision Review Officer decision, the AOJ granted a TDIU effective September 12, 2014 based upon his posttraumatic stress disorder (PTSD). Prior to September 12, 2014, the Veteran was service connected for tinnitus, rated at 10 percent, and bilateral hearing loss, rated at noncompensable. The schedular criteria for a TDIU are not met, as his service-connected disabilities do not combine to a 70 percent disability rating during the appeal period. See 38 C.F.R. § 4.16(a). If a veteran does not meet the schedular requirements for TDIU under 38 C.F.R. § 4.16(a), as provided above, that veteran may nonetheless warrant entitlement to TDIU on an extraschedular basis under 38 C.F.R. § 4.16(b). See 38 C.F.R. § 4.16. The authority to assign TDIU on an extraschedular basis has been specifically delegated to the Under Secretary for Benefits and the Director of the Compensation and Pension Service in the first instance. Id. Referral of the Veteran's claim to the Director of Compensation and Pension Service for extraschedular consideration of TDIU is not warranted because the probative evidence of record does not establish a functional limitation on the Veteran's employment due to his service-connected tinnitus. An August 2015 hearing loss and tinnitus DBQ notes that the Veteran tinnitus does not impact his ability to work. Audiological examinations completed in April 2014, August 2015, and September 2018, note that the Veteran’s bilateral hearing loss affected his ability to understand conversation or soft voices, especially in crowded or noisy environments. The September 2018 VA examiner noted that the Veteran’s hearing loss adversely impacted his ability to work because it interfered with his ability to communicate effectively. However, the examiner explained that with proper amplification and modifications, he would be able to work. The Board notes that the Veteran reported that since 2011 he has been receiving Social Security Administration disability benefits due to a lower back disability. The Veteran is not currently, and was not during the period on appeal, service-connected for a back disability. Nonservice-connected disabilities may not be considered for TDIU purposes. Accordingly, the Veteran’s back disability was not considered for entitlement to TDIU. In his June 2017 VA Form 21-8940, the Veteran reported working from 2006 to 2008 in the field of hauling. From 2004 to 2005 he worked as a manager. He stated that he was unable to work due to his service-connected disabilities, including his tinnitus and bilateral hearing loss. He did not provide a description of how these two disabilities precluded substantially gainful employment. The term “substantially gainful occupation” is not defined in the rating schedule. Rather, the U. S. Court of Appeals for Veterans claims in Ray v. Wilkie, found the phrase has two components: an economic one and a noneconomic one. 31 Vet. App. 58 (2019). The most probative evidence of record does not show that his hearing loss and tinnitus resulted in him not having the physical ability to work as a manager or in the field of hauling. His hearing loss and tinnitus did not result in limitations such as lifting, bending, walking, climbing, reaching, grasping, typing, and reaching. He had auditory limitations in the form of having difficulty hearing conversations, especially in background noise or with female voices, and difficulty hearing the television. None of these symptoms would preclude employment as a manager or in the field of hauling. The Veteran did not state that his hearing limitations rendered him unable to work at his jobs, and the medical evidence of record does not show that they interfered with his ability to work. His hearing loss and tinnitus did not interfere with his mental ability to work. For example, it did not cause problems with memory, concentration, ability to accept instructions, or interpersonal relationships. In conclusion, the Board finds that, throughout the period on appeal, the preponderance of the evidence is against a finding that the Veteran was unable to secure and follow a substantially gainful occupation by reason of his service-connected tinnitus or bilateral hearing loss. As such, throughout the period on appeal, the criteria for referral for consideration of an extraschedular TDIU have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.3, 4.16. Entitlement to TDIU, prior to September 12, 2014, is not warranted. D. Martz Ames Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. Riordan, 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.