Citation Nr: 21009548 Decision Date: 02/22/21 Archive Date: 02/22/21 DOCKET NO. 17-28 478 DATE: February 22, 2021 ORDER Entitlement to service connection for acute myeloid leukemia, to include as a result of in-service exposure to herbicide agents, is granted. Entitlement to an initial compensable rating for bilateral hearing loss is denied. FINDINGS OF FACT 1. Medical evidence is in relative equipoise as to whether the Veteran's acute myeloid leukemia is related to his in-service herbicide agent exposure. 2. The Veteran's bilateral hearing loss is manifested by hearing acuity no worse than Level III in his right ear and Level II in his left ear, with no exceptional hearing loss pattern shown. CONCLUSIONS OF LAW 1. The criteria for service connection for acute myeloid leukemia, to include as a result of exposure to herbicide agents, have been met. 38 U.S.C. §§1110, 5107; 38 C.F.R. §§3.102, 3.303. 3.307, 3.309. 2. The criteria for entitlement to an initial compensable rating for bilateral hearing loss have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 3.385, 4.1, 4.2, 4.3, 4.7, 4.10, 4.85, 4.86, Diagnostic Code 6100. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Army from September 1966 to September 1968. In October 2019, the Veteran testified before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the file. In July 2020, the Board remanded this appeal for further evidentiary development. This appeal, which has been returned to the Board following completion of the actions requested in that Remand, has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c); 38 U.S.C.§ 7107(a)(2). Service connection for acute myeloid leukemia, to include as a result of exposure to herbicide agents The Veteran seeks service connection for acute myeloid leukemia. He believes that this disorder is the result of his in-service exposure to herbicide agents. A veteran is granted service connection where evidence shows that an injury or disease that results in a current disability was incurred during service or was aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. §3.303(a). To be entitled to service connection, the evidence must support (1) a current disability; (2) an in-service injury or event; and (3) a nexus between the current disability and the in-service injury or event. 38 C.F.R. §3.303(a). 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 herbicide agents (e.g., Agent Orange) during such service, absent affirmative evidence to the contrary. 38 U.S.C. § 1116(f); 38 C.F.R. § 3.307(a)(6)(iii). Service connection based on herbicide agent exposure will be presumed for certain specified diseases that become manifest to a compensable degree within a specified period in the case of certain diseases. 38 U.S.C.§ 1116; 38 C.F.R. §§ 3.307(a)(6), 3.309(e). In this current matter, the evidence of the record establishes a current diagnosis of acute myeloid leukemia. Also, the Veteran has verified service in Vietnam from March 1967 to March 1968. Therefore, he is presumed to have been exposed to herbicide agents, to include Agent Orange, during his service. The Board notes that the Veteran’s type of leukemia (acute myeloid) is not enumerated as one of the diseases under 38 C.F.R. §3.309. Even if a veteran is not entitled to presumptive service connection for a disease claimed as secondary to herbicide agent exposure, VA must also consider the claim on a direct service connection basis. When a disease is first diagnosed after service but not within the applicable presumptive period, service connection may nonetheless be established by evidence demonstrating that the disease was in fact incurred in service. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). In November 2019, one of the Veteran’s treating physicians at the Baptist Cancer Center confirmed the Veteran’s diagnosis of acute myeloid leukemia, which he noted has an association to Agent Orange exposure. Indeed, it was the Center’s prospective that the Agent Orange caused the Veteran’s cancer, based on his history of exposure to Agent Orange. No further rationale was provided in support of this conclusion. See December 2019 Private Medical Treatment Record. In August 2020, a VA examiner opined that it was less likely than not that the Veteran’s leukemia was due to his service. The examiner continued that, while there is evidence of a diagnosis and treatment of leukemia in 2015, there is no medical literature which links causation of acute myeloid leukemia to Agent Orange exposure. The examiner included a quote from a source that read “AML [acute myeloid leukemia] has been associated with environmental factors (e.g. exposure to chemicals, radiation, tobacco, chemotherapy) and genetic abnormalities.” The examiner stated that, while there is a known association with environmental factors, there are no studies which have proved causation to Agent Orange. Significantly, however, the examiner did not address the specific information or data of the Veteran’s case and did not explain why the conceded herbicide exposure did not contribute to the Veteran’s development of leukemia. After a thorough consideration of the evidence, the Board determines that the evidence is in relative equipoise regarding whether there is a nexus between the Veteran’s leukemia and his in-service herbicide agent exposure. The competing medical opinions both contain flaws as they do not provide sufficient rationales to support the conclusions reached. Both opinions do state that there is an association between environmental factors, such as chemicals, and the development of leukemia. There have been no other causes documented or determined regarding the Veteran’s leukemia. Importantly, however, in consideration of the Veteran’s conceded herbicide agent exposure, his subsequent development of cancer, and the absence of any other cause or factor noted in this specific case regarding the development of his cancer, the Board finds that a reasonable doubt has arisen regarding the cause of his acute myeloid leukemia. Resolving reasonable doubt in favor of the Veteran, the Board finds that a nexus has been established between the Veteran’s leukemia and his in service herbicide agent exposure. Accordingly, the Board concludes that the criteria for service connection for acute myeloid leukemia have been met and that entitlement to service connection is warranted. Initial compensable rating for bilateral hearing loss The Veteran seeks a higher (or compensable) rating for his bilateral hearing loss. Under applicable laws and regulations, the rating assigned for hearing loss is determined by a mechanical application of the rating schedule, which is grounded on numeric designations assigned to audiometric examination results. Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). Specifically, evaluations of hearing impairment range from 0 to 100 percent based on organic impairment of hearing acuity. Auditory acuity is gauged by examining the results of controlled speech discrimination tests, together with the results of pure tone audiometric tests in the frequencies of 1000, 2000, 3000, and 4000 cycles per second (Hz). To evaluate the degree of disability, the rating schedule establishes 11 auditory acuity levels ranging from Level I, for essentially normal acuity, through Level XI, for profound deafness. Tables VI and VII, as set forth following 38 C.F.R. § 4.85, are used to calculate the rating to be assigned. 38 C.F.R. § 4.85. Consideration is also given for exceptional hearing loss patterns. Specifically, under 38 C.F.R. § 4.86, when the puretone threshold at each of the four specified frequencies (1000, 2000, 3000 and 4000 Hz) is 55 decibels (dB) or more, Table VI or Table Via is to be used, whichever results in the higher numeral. 38 C.F.R. § 4.86(a). Additionally, when the puretone threshold is 30 dB or less at 1000 Hz, and 70 dB or more at 2000 Hz, 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 Roman numeral. 38 C.F.R. § 4.86(b). In the current appeal, and specifically at a November 2015 VA treatment session, the Veteran reported hearing loss since his service. He reported that it has worsened gradually until June when he underwent chemotherapy. At that time, his hearing loss decreased suddenly and had since improved slightly. It was noted that the test results at this evaluation were not valid for rating purposes. See April 2016 VA Medical Treatment Records (CAPRI). At a May 2016 VA audiological examination, the Veteran’s speech recognition scores were 92 percent in his right ear and 96 percent in his left ear. His puretone threshold were as follows: HERTZ 1000 2000 3000 4000 RIGHT 25 55 75 80 LEFT 35 80 75 70 Puretone threshold averages were 59 percent for the Veteran’s right ear and 65 percent for his left ear. Applying the May 2016 examination results to Table VI results in Roman Number II for the right ear and II for the left ear. Applying these values to Table VII demonstrates that the rating for the Veteran's bilateral hearing loss is 0 percent. An exceptional hearing loss pattern was not shown in either of the Veteran’s ears. At a November 2020 VA examination, the Veteran’s speech recognition scores were 84 percent in his right ear and 96 percent in his left ear. His puretone threshold were as follows: HERTZ 1000 2000 3000 4000 RIGHT 45 75 85 85 LEFT 45 85 80 80 Puretone threshold averages were 73 percent in both ears. Applying the November 2020 examination results to Table VI results in Roman Number III for the Veteran’s right ear and II for his left ear. Applying these values to Table VII demonstrates that the rating for the Veteran's bilateral hearing loss is 0 percent. No exceptional hearing loss pattern was shown in either ear. After a thorough consideration of the evidence of the record, the Board determines that an initial compensable rating for bilateral hearing loss is not warranted under 38 C.F.R. § 4.485. The Board has carefully compared the level of severity and symptomatology of the Veteran's service-connected hearing loss with the established criteria found in the rating schedule. The Board acknowledges the Veteran's contentions regarding the functional impairment that he experiences as a result of his hearing loss. However, the decibel loss and speech discrimination ranges designated for each level of hearing impairment in Tables VI and VIA were determined in relation to clinical findings of the impairment experienced by Veterans with certain degrees and types of hearing disability. To the extent that it is argued that the schedular rating criteria in general and regulations do not contemplate the functional effects of hearing impairment, the United States Court of Appeals for Veterans Claims (Court) has held that "the rating criteria for hearing loss contemplate the functional effects of decreased hearing and difficulty understanding" and that, "when a claimant's hearing loss results in an inability to hear or understand speech or to hear other sounds in various contexts, those effects are contemplated by the schedular rating criteria." Doucette v. Shulkin, 28 Vet. App. 366 (2017). Here, the Veteran describes difficulty understanding people, hearing on the phone, and hearing in the distance and in background noise. As found by the Court in Doucette, these symptoms are contemplated by the schedular rating criteria and do not require extraschedular evaluation. Id. In summation, the criteria for entitlement to an initial compensable rating for the service-connected bilateral hearing loss have not been met, and entitlement to an increased rating is denied. The Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the claim, the doctrine is not applicable. THERESA M. CATINO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Middleton, 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.