Citation Nr: 21009243 Decision Date: 02/22/21 Archive Date: 02/22/21 DOCKET NO. 17-43 446 DATE: February 22, 2021 ORDER An initial compensable rating for right ear hearing loss disability is denied. REMANDED Entitlement to service connection for a bilateral eye disability is remanded. Entitlement to service connection for abnormalities to the left paracardiac area, to include paracardiac fibrosis and subsegmental atelectasis, is remanded. FINDING OF FACT The Veteran’s right ear hearing has been manifested by hearing acuity of no worse than Level I. CONCLUSION OF LAW The criteria for a compensable rating for right ear hearing loss disability are not 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 March 1978 to March 1982, from March 1991 to July 1991, from September 2006 to February 2008, from January 2012 to October 2012, and from July 2013 to April 2014. The Veteran is a Persian Gulf veteran as he had qualifying service in the Southwest Asia theater of operations during the Persian Gulf War. See 38 C.F.R. § 3.317(e). It is also noted that a December 2016 rating decision granted the Veteran a total disability rating for compensation based upon individual unemployability due to service-connected disabilities, effective June 13, 2016. This appeal comes before the Board of Veterans’ Appeals (Board) from a June 2017 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Guaynabo, Puerto Rico. In November 2018, the Board remanded the claims for further development. As to the claim of entitlement to an initial compensable rating for right ear hearing loss disability, the Board finds that there has been substantial compliance with its prior remand directives. Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141 (1999). During remand status, a July 2020 rating decision granted service connection for a left shoulder disability and a right shoulder disability. The Board finds that the Veteran’s claimed symptoms, for his bilateral shoulder disability, are encompassed by the RO’s grant. In this regard, at the October 2019, VA examination, the Veteran described his shoulder symptomology as: Severe joint pain at the right shoulder joint, moderate pain at the left shoulder joint, and limited motion of both shoulders. The Veteran’s left and right shoulder disability is rated pursuant to Diagnostic Code 5201, which considers limitation of motion of the shoulders. See 38 C.F.R. § 4.71a; see also 38 C.F.R. § 4.59 (providing that consideration should be given to, among other things, painful motion in evaluating musculoskeletal disabilities). Thus, as the RO granted in full the benefit sought by the Veteran in these matters, there is no remaining allegation of error of fact or law for appellate consideration. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997) (noting that a grant of service connection extinguishes appeals before the Board). The RO, additionally, sent to the Veteran a July 2020 supplemental statement of the case that addressed the remaining above issues on appeal. This appeal has been advanced on the Board’s docket pursuant to 38 C.F.R. § 20.800(c). 38 U.S.C. § 7107(b). Entitlement to an initial compensable rating for right ear hearing loss disability. The Veteran, and his representative, contends that he is entitled to a higher rating because of the severity of hearing loss. In this regard, the Veteran argues, among other things, that voice communication is very difficult for him to understand. For instance, the Veteran states that he has difficulty hearing people because of background noise, and when he sleeps on his left ear, he cannot hear his spouse and must lift his head to allow his left ear to hear her. See Correspondence (August 2020). 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). If impaired hearing is service-connected in only one ear, the law allows for compensation for hearing loss as if both ears were service-connected if the service-connected hearing loss is ratable as at least 10 percent disabling and the non-service-connected hearing loss meets the standard for a hearing loss disability for VA purposes under 38 C.F.R. § 3.385, unless the non-service-connected hearing loss is the result of the Veteran’s willful misconduct. See 38 C.F.R. § 3.383. To determine the percentage evaluation from Table VII, the non-service-connected ear will be assigned a Roman Numeral designation for hearing impairment of I, subject to the provisions of 38 C.F.R. § 3.383. 38 C.F.R. § 4.85(f). A November 2015 VA examination report reveals the following Maryland CNC Word List speech recognition scores and pure tone thresholds, in decibels: November 2015 HERTZ 1000 2000 3000 4000 Avg CNC RIGHT 10 10 25 30 19 100% LEFT 10 15 15 15 14 100% 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 noncompensable disability rating under Diagnostic Code 6100. An exceptional pattern of hearing impairment under 38 C.F.R. § 4.86 was not shown. A May 2016 VA examination report reveals the following Maryland CNC Word List speech recognition scores and pure tone thresholds, in decibels: May 2016 HERTZ 1000 2000 3000 4000 Avg CNC RIGHT 20 25 35 40 30 92% LEFT 10 10 20 20 15 100% 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 noncompensable disability rating under Diagnostic Code 6100. An exceptional pattern of hearing impairment under 38 C.F.R. § 4.86 was not shown. A November 2016 VA examination report reveals that the Veteran reported that his right ear hearing loss interferes with his ability to follow conversations if there is background noise. 38 C.F.R. § 4.10; Martinak v. Nicholson, 21 Vet. App. 447 (2007). The Veteran’s Maryland CNC Word List speech recognition scores and pure tone thresholds, in decibels, were as follows: November 2016 HERTZ 1000 2000 3000 4000 Avg CNC RIGHT 20 25 35 40 30 96% LEFT 10 10 20 20 15 100% 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 noncompensable disability rating under Diagnostic Code 6100. An exceptional pattern of hearing impairment under 38 C.F.R. § 4.86 was not shown. A May 2017 VA examination report reveals that the Veteran reported that he could not hear very well in the right ear. The report additionally notes that no occupational functioning effects were reported. 38 C.F.R. § 4.10; Martinak, 21 Vet. App. 447. The Veteran’s Maryland CNC Word List speech recognition scores and pure tone thresholds, in decibels, were as follows: May 2017 HERTZ 1000 2000 3000 4000 Avg CNC RIGHT 20 25 35 45 31 92% LEFT 10 10 20 20 15 100% 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 noncompensable disability rating under Diagnostic Code 6100. An exceptional pattern of hearing impairment under 38 C.F.R. § 4.86 was not shown. An October 2019 VA examination report reveals the following Maryland CNC Word List speech recognition scores and pure tone thresholds, in decibels: October 2019 HERTZ 1000 2000 3000 4000 Avg CNC RIGHT 20 30 40 50 35 92% LEFT 10 10 15 20 14 100% 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 noncompensable disability rating under Diagnostic Code 6100. An exceptional pattern of hearing impairment under 38 C.F.R. § 4.86 was not shown. Lastly, the Board acknowledges the May 2015 private audiometric report; however, the Board finds the results obtained from the audiology evaluation are not valid for rating purposes because the evaluation is not shown to have followed VA protocols. See 38 C.F.R. § 4.85. An evaluation for hearing impairment for VA purposes must be conducted by a state-licensed audiologist and must include a controlled Maryland CNC speech discrimination and a Puretone audiometric test. 38 C.F.R. § 4.85(a). First, the audiology evaluation report does not reflect that a controlled Maryland CNC speech discrimination test was conducted. Additionally, the audiology evaluation report does not reveal that it was conducted by a state-licensed audiologist. In this regard, the Board notes that the examiner is not shown to have audiology credentials, such as Au. D. (the abbreviation for Doctor of Audiology). Thus, while private audiology reports may be used as evidence if all the required information is present, here, all the required information has not been presented. Moreover, even were the Board to accept that the hearing testing was conducted by a state licensed audiologist and that the word recognition score was obtained using the Maryland CNC speech discrimination test, applying the results to Table VI and Table VII equates to a noncompensable disability rating under Diagnostic Code 6100. Also, the findings do not show an exceptional pattern of hearing impairment under 38 C.F.R. § 4.86. See Savage v. Shinseki, 24 Vet. App. 259 (2011). Therefore, based on the evidence above, a compensable rating for the Veteran’s right ear hearing loss is not warranted. The Board expressly acknowledges its consideration of the lay evidence of record when adjudicating this claim, including reports of difficulty hearing when background noise is present. 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 right ear hearing loss disability. 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 In remanding these matters, the Board makes no finding, implicit or otherwise, as to the credibility of the Veteran’s assertions. Neither the Veteran’s credibility nor any lack thereof should be presumed in this remand. 1. Entitlement to service connection for bilateral eye disability is remanded. The Veteran, and his representative, seeks service connection for vision impairment. In this regard, the Veteran argues that his current eye condition is due to “the sand, the dust, the smoke from burning fire pits in Bagram, the poo pound in Kandahar, [and] the smoke from the burning latrines.” See Correspondence (August 2020). For reasons explained below, the Board finds that remand is necessary. Congenital or developmental defects, including refractive errors of the eyes, are not “diseases or injuries” for disability compensation purposes under VA law. See 38 C.F.R. §§ 3.303(c), 4.9; Palczewski v. Nicholson, 21 Vet. App. 174, 179 (2007). Refractive error of the eyes generally includes diagnoses of hyperopia, presbyopia, and astigmatism. See, e.g., Dorland’s Illustrated Medical Dictionary 170, 904 (30th ed. 2003) (defining hyperopia and astigmatism as errors of refraction). Absent superimposed disease or injury, service connection may not be allowed for a congenital or developmental defect of the eyes, even if visual acuity decreased in service, as this is not a disease or injury within the meaning of applicable legislation relating to service connection. Parker v. Derwinski, 1 Vet. App. 522 (1991); McNeely v. Principi, 3 Vet. App. 357, 364 (1992). Thus, in the absence of some event or trauma, a refractive error is a constitutional or development abnormality for which compensation benefits may not be authorized. 38 C.F.R. §§ 3.303(c), 4.9 (congenital or developmental defects, refractive error of the eye, personality disorders, and mental deficiency as such are not diseases or injuries within the meaning of applicable legislation); see also VAOPGCPREC 82-90 (July 18, 1990). VA examination report, dated in October 2019, reflects that the Veteran was diagnosed with glaucoma suspect, bilateral. The report additionally notes that (1) the Veteran’s reduction in visual acuity is due to refractive error; (2) he presents with mild nuclear sclerosis, bilateral; and (3) he presents with large cup-to-disc ratio – glaucoma suspect, bilateral. In a corresponding medical opinion, the examiner concluded that the Veteran’s bilateral eye condition was less likely than not incurred in or caused by the claimed in-service injury, event or illness. In support of this conclusion, the opinion noted that (1) refractive errors are considered congenital and developmental in origin, and (2) the external slit lamp examination was negative except for mild nuclear sclerosis changes, which is to be expected in a 61-year old person. The opinion also noted that the optical coherence tomography (OCT) was unavailable for retinal nerve fiber layer evaluation, which, the opinion, infers is required to confirm a glaucoma diagnosis. In this regard, the opinion provides: Glaucoma suspect is not a diagnose of glaucoma per se, glaucoma suspect describes a person with one or more risk factors that may lead to glaucoma; including: increase intraocular pressure, cu/disc asymmetry, but does not yet have definite optic nerve damage or peripheral visual loss. The Board finds the medical opinion is inadequate. The opinion is inadequate because the essential rationale is not discernable. Monzingo v. Shinseki, 26 Vet. App. 97, 106 (2012). Although the opinion states that the Veteran’s vision impairment, of both eyes, is due to developmental error of refraction, it makes no attempt to connect the developmental error of refraction to his current vision impairment. It is noted that a medical opinion or “medical examination report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two.” Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008). Further, no opinion was provided as to whether any of the congenital conditions constituted a congenital “disease process,” or a congenital “defect or abnormality” within the definition of those terms. See 38 C.F.R. § 3.303(c); VAOPGCPREC 82-90; 55 Fed. Reg. 45711 (July 18, 1990) (noting that congenital “defects” are normally static conditions which are incapable of improvement or deterioration, whereas congenital “diseases” are usually capable of improvement or deterioration). Moreover, there is no opinion on whether the Veteran’s congenital vision impairment increased in severity as a result of a superimposed injury during service (in other words, whether there is additional eye impairment, superimposed on any congenital vision impairment, due to “the sand, the dust, the smoke from burning fire pits in Bagram, the poo pound in Kandahar, [and] the smoke from the burning latrines.” Since the October 2019 VA examination report and medical opinion are inadequate, remand is necessary. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). In remanding this matter, the Board makes no finding, implicit or otherwise, as to the credibility of the Veteran’s assertions. Neither the Veteran’s credibility nor any lack thereof should be presumed in this remand. 2. Entitlement to service connection for abnormalities to the left paracardiac area, to include paracardiac fibrosis and subsegmental atelectasis, is remanded. The Veteran, and his representative, is seeking service connection for abnormalities to the left paracardiac area, to include paracardiac fibrosis and subsegmental atelectasis. In this regard, the Veteran maintains that his disability stems from service in Southwest Asia, in which, he argues is related to environmental hazards. See VA Form 21-526EZ (October 2016). In the alternative, the Veteran also argues that it is secondary to his service-connected tear of the right biceps tendon disability, currently rated at 40 percent. See Correspondence (August 2020). In support of this contention, the Veteran submitted medical evidence indicating that he had left paracardiac fibrosis vs. subsegmental atelectasis. See Medical Treatment Record-Non-Government Facility (April 2016). An October 2019 VA skin report shows complaints of left under-armpit/arm mass or bulging. By history, this mass has worsened slowly since 2007. The Veteran reported that he believed the mass was formed or developed secondary to the service-connected right biceps tendon tear event. He reported that he was evaluated in April 2019 and it was excision was recommended to slow the growth of the soft tissue mass. The associated October 2019 VA medical opinion reflects that “The condition claimed (lipoma) was less likely than not (less than 50% probability) incurred in or caused by the claimed in-service injury, event or illness. The rationale was as follows: Veteran slow growing mass or lipoma (left underarm region) is note a paracardiac fibrosis. The Military Health Record are silent about this condition. Further, secondary service connection to the Right bicep tendon service connected condition or event is less likely than not (less than 50% probability) incurred in or caused by the claimed in-service injury, event or illness. The veteran painless lipoma or fatty growth under-the-skin is not associated to mechanic movements that ocurred during active service. The link between trauma and development of lipoma is controversial. For cosmetic reasons, its removal could be considered and would then determine if the fatty tumor is benign or cancerous (thru a pathology evaluation/report). Also, no evidence of lipoma being caused from exposure to environmental hazards. The October 2019 VA medical opinion essentially reflects the conclusion that the Veteran does not have paracardiac fibrosis, as claimed, but rather a slow growing mass or lipoma in the left underarm region. For reasons explained below, the Board finds that the opinion is inadequate for adjudicative purposes. Hayes v. Brown, 5 Vet. App. 60, 69 (1993). First, the opinion, while concluding that the Veteran does not have paracardiac fibrosis, does not address the incongruous findings shown in the private treatment records for either paracardiac fibrosis or subsegmental atelectasis. Hence, it is not shown to be based on an accurate factual premise with consideration of the Veteran’s prior medical history. Ardison v. Brown, 6 Vet. App. 405, 407 (1994). Second, in regard to the diagnosed lipoma, the opinion states in a conclusory way that there is “no evidence of lipoma being caused from exposure to environmental hazards.” No rationale is provided for this conclusion and the Veteran’s theory that his mass/lump is linked to environmental conditions in service appears to have been dismissed given the absence of any discussion of the Veteran’s medical history, clinical findings, medical knowledge or literature, etc., relied upon in reaching that conclusion. Third, to the extent that the October 2019 examination showed lipoma, the associated October 2019 opinion does fully address the question of secondary service connection as argued by the Veteran. See Allen v. Brown, 7 Vet. App. 439 (1995). Indeed, the bulk of the rationale provided by the opinion reflects an analysis based on causation. See Atencio v. O’Rourke, 30 Vet. App. 74, 90-91 (2018) (holding that a medical opinion was inadequate when it was unclear whether the examiner had clearly provided a rationale that dealt with causation and aggravation as independent concepts). Accordingly, the Board finds that remand is necessary for an adequate VA examination and medical opinion that addresses the conflicting findings and the Veteran’s theory of causation. See Colvin v. Derwinski, 1 Vet. App. 171 (1991); see also Bowling v. Principi, 15 Vet. App. 1, 12 (2001) (emphasizing the Board’s duty to return an inadequate examination report “if further evidence or clarification of the evidence . . . is essential for a proper appellate decision”). The matters are REMANDED for the following actions: 1. Ask the Veteran to complete a VA Form 21-4142 for all non-VA medical providers seen for symptoms involving his eyes/vision and abnormalities to the left paracardiac area. Make two requests for the authorized records from all identified sources, unless it is clear after the first request that a second request would be futile. 2. Obtain all VA treatment records dated from April 2019 to the Present. 3. Schedule the Veteran for a VA examination by an appropriate clinician to determine the nature and etiology of any eye/vision disability. The entire claims file, to include a copy of this REMAND, should be made available to and reviewed by the clinician. A complete medical history should be obtained. The report should include, among other things, a discussion of the Veteran’s documented history and assertions. The examiner must opine on: Preexisting Congenital Disability (a) Whether any congenital eye/vision disability clearly and unmistakably (undebatable) preexisted the Veteran’s service. (b) If so, clarify whether it constitutes a congenital “disease” or “defect.” [Note: A disease generally refers to a condition that is considered capable of improving or deteriorating while a defect is generally not considered capable of improving or deteriorating.] (c) For any congenital “defect” identified, opine on whether it is at least as likely as not that there was any superimposed injury or disease in service which resulted in additional disability. Consider and expressly address the Veteran’s contention that his current eye condition is due to “the sand, the dust, the smoke from burning fire pits in Bagram, the poo pound in Kandahar, [and] the smoke from the burning latrines.” See Correspondence (August 2020). Explain. (d) For any congenital “disease” identified, opine on whether it was clearly and unmistakably not aggravated by service or whether it is clear and unmistakable that any increase was due to the natural progress. Consider and expressly address the Veteran’s contention that his current eye condition is due to “the sand, the dust, the smoke from burning fire pits in Bagram, the poo pound in Kandahar, [and] the smoke from the burning latrines.” See Correspondence (August 2020). Explain. Non-Preexisting Disability (e) For any non-preexisting eye/vision disability, opine on whether it is at least as likely as not had its onset in service or is related to an in-service injury, event, or disease. Consider and expressly address the Veteran’s contention that his current eye condition is due to “the sand, the dust, the smoke from burning fire pits in Bagram, the poo pound in Kandahar, [and] the smoke from the burning latrines.” See Correspondence (August 2020). Explain. 4. Schedule the Veteran for a VA examination by an appropriate clinician to determine the nature and etiology of any abnormalities to the left paracardiac area. The entire claims file, to include a copy of this REMAND, should be made available to and reviewed by the clinician. A complete medical history should be obtained. The report should include, among other things, a discussion of the Veteran’s documented history and assertions. The examiner must opine on: (a) Whether it is at least as likely as not the Veteran has, or has had, left paracardiac fibrosis and/or subsegmental atelectasis at any time during the pendency of the claim or recent to the filing of the claim. Attempt to reconcile, or explain, medical evidence showing negative and positive findings for left paracardiac fibrosis and/or subsegmental atelectasis. Explain. Direct Service Connection (b) Whether any abnormalities to the left paracardiac area at least as likely as not (1) began during active service or (2) is related to an in-service injury, event, or disease. Consider and expressly address the Veteran’s contention that it stems from environmental hazards in Southwest Asia. Explain. Secondary Service Connection (c) Whether any abnormalities to the left paracardiac area is at least as likely as not (1) proximately due to service-connected tear of the right biceps tendon disability, or (2) aggravated beyond its natural progression by service-connected tear of the right biceps tendon disability. Provide a rationale that deals with causation and aggravation as independent concepts. Explain. 5. Ensure that the medical opinion obtained includes a complete rationale for the conclusions reached. The medical opinion must support the conclusions reached with an analysis that is adequate for the Board to consider and weigh against other evidence of record; medical opinions must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. If an opinion cannot be expressed without resort to speculation, ensure that the clinician so indicates and discusses why an opinion is not possible, to include whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. C.A. SKOW Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Griffey, 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.