Citation Nr: 21009632 Decision Date: 02/23/21 Archive Date: 02/23/21 DOCKET NO. 16-23 571 DATE: February 23, 2021 ORDER Service connection for a foot fungus/nail condition is denied. A higher rating for bilateral hearing loss, evaluated as noncompensable prior to May 9, 2019, and as 20 percent disabling thereafter, is denied. REMANDED The claim for service connection for hypertension is remanded. FINDINGS OF FACT 1. The Veteran does not have a foot fungus/nail condition due to his service. 2. Through numerous hearing tests during the course of his appeal, the Veteran has not shown hearing loss which would be supportive of a higher rating. CONCLUSIONS OF LAW 1. The criteria for service connection for a foot fungus/nail condition have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303. 2. The criteria for an initial compensable rating for bilateral hearing loss prior to May 9, 2019, and a rating in excess of 20 percent thereafter, have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321(b)(1), 4.85, 4.86, Diagnostic Code 6100. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty form March 1966 to January 1969. In March 2019, he was afforded a hearing before the undersigned. In May 2020, the Board remanded these claims at the Veteran’s request so that the Agency of Original Jurisdiction (AOJ) could review evidence added to the record since the statement of the case (SOC). Service Connection 1. Foot fungus/nail condition. The Veteran asserts that service connection is warranted for a foot fungus/nail condition. In his notice of disagreement, he stated that he had foot fungus and a nail condition that began during service in Vietnam. See Veteran’s notice of disagreement (VA Form 21-0958), received in June 2014. During his hearing, held in March 2019, he testified that during service his feet were continually wet and that his toenails became thick and soft. His said that his toenails were removed by a private physician more than 10 years earlier. His spouse testified that she and the Veteran had been married for almost 50 years and that she met him “right out of the service.” She said that she noticed his foot condition when they first got married. The testimony at the hearing was found to be fully credible, and described a condition which was readily observable. The condition was described as having begun in service and continued since that time. It is also noted that a foot fungus condition is not something that would necessarily be reported at a medical examination. Accordingly, the Board is satisfied that the criteria for service connection have been met, and service connection is granted for a foot fungus/nail condition. INCREASED RATING The Veteran is seeking an increased rating for his bilateral hearing loss. He was granted service connection for bilateral hearing loss and assigned a noncompensable rating from the date his claim was received, August 23, 2013. His rating was increased to 20 percent as of May 9, 2019. Disability ratings for hearing loss are derived from a mechanical application of the rating schedule to the numeric designations resulting from audiometric testing. Lendenman v. Principi, 3 Vet. App. 345 (1992). The rating schedule establishes auditory hearing acuity levels based on average pure tone thresholds and speech discrimination. 38 C.F.R. § 4.85. Ratings for hearing loss are determined in accordance with the findings obtained on audiometric examinations. Ratings for hearing impairment range from 0 percent to 100 percent based on organic impairment of hearing acuity, as measured by the results of the controlled speech discrimination tests, together with the average hearing threshold level as measured by pure tone audiometry tests in the frequencies 1000, 2000, 3000, and 4000 Hertz. To rate the degree of disability from hearing impairment, the rating schedule establishes eleven auditory acuity levels designated from Level I for essentially normal acuity through Level XI for profound deafness. 38 C.F.R. § 4.85, Diagnostic Code 6100. Hearing tests are to be conducted without hearing aids, and the results of testing are charted on Table VI and Table VII. 38 C.F.R. § 4.85, Tables VI, VII. Exceptional patterns of hearing impairment are rated under 38 C.F.R. § 4.86. When the pure tone threshold at each of the four specified frequencies of 1000, 2000, 3000, and 4000 Hertz is 55 decibels or more, 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. Each ear will be evaluated separately. When the 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 for hearing impairment from Table VI or Table VIa, whichever is higher. That numeral will then be elevated to the next higher Roman numeral. Each ear will be evaluated separately. 38 C.F.R. § 4.86. During the course of his appeal, the Veteran has undergone a number of audiometric tests to assess his hearing acuity. Some of the results of the audiometric tests are in graphical form, but the Board may interpret graphical representations of audiometric data and convert them to numerical data in its role as a fact finder, as long as the graphical representations are clear. Kelly v. Brown, 7 Vet. App. 471 (1995). The Board finds that the graphical representations in this case are clear, and the Board will therefore interpret them. As noted, the appeal period began August 23, 2013. The first hearing test was conducted in August 2013 at Central California Ear, Nose, and Throat. On audiometric testing, pure tone thresholds, in decibels, and speech recognition scores were reported as follows: HERTZ 1000 2000 3000 4000 Average Unspecified speech recognition testing Right Ear 40 50 45 45 45 88% Left Ear 40 50 45 50 48 92% It is noted that it was not specified what word test was used for the speech recognition testing. VA regulations require Maryland-CNC word list to rate hearing loss disabilities for VA purposes. It has also been held that in some cases, a remand would be required to clarify from the private audiologist which list was used. Savage v. Shinseki, 24 Vet. App. 259. Here, however, even assuming the Maryland-CNC list was used, the findings of the 2013 hearing test would not support a compensable rating, as the Veteran would merit a Level I or II in each ear for TABLE VI based on the decibel loss shown and the results of speech recognition testing. In May 2014, the Veteran underwent a VA examination for his hearing. HERTZ 1000 2000 3000 4000 Average Maryland-CNC Right Ear 35 40 45 65 46 84% Left Ear 40 50 55 65 53 88% This would equate to Level II hearing loss in each ear, which is noncompensable. The Veteran next had audiometric testing at VA in November 2014. HERTZ 1000 2000 3000 4000 Average Maryland-CNC Right Ear 40 40 45 55 45 None Left Ear 40 50 55 65 53 None Speech recognition testing was not noted to have been completed, but the decibel loss was similar to what was shown on the earlier tests. As such, this test would not support the assignment of a compensable rating. In June 2016, the Veteran had another hearing test at VA. HERTZ 1000 2000 3000 4000 Average Maryland-CNC Right Ear 45 45 65 65 55 84% Left Ear 45 45 60 60 53 78% This would equate to Level II hearing loss in the right and Level IV in the left ear, which is still noncompensable, albeit worse than what was shown on previous hearing tests. Finally, the Veteran had a hearing test at VA in May 2019. HERTZ 1000 2000 3000 4000 Average Maryland-CNC Right Ear 55 60 75 75 66 71% Left Ear 55 60 70 70 64 84% This would equate to Level VI hearing loss in the right and Level III in the left ear, which equates to a 10 percent rating. It is noted that the RO assigned a 20 percent rating based on an interpretation that the decibel loss was slightly higher, but regardless there is not a basis for finding a rating in excess of 20 percent as a result of this examination. The Veteran and his spouse testified at a Board hearing that he experienced difficulty hearing, which is expected given his hearing loss disability. There is no showing of an exceptional pattern of hearing impairment at any of the examinations. 38 CFR § 4.86. As described, a higher rating is not warranted for that Veteran’s bilateral hearing loss. REASONS FOR REMAND 1. The claim for service connection for hypertension is remanded. The Veteran asserts that service connection is warranted for hypertension, to include as due to exposure to Agent Orange during service in the Republic of Vietnam. During his hearing, held in March 2018, he testified that he was found to have hypertension within one year of separation from service, in 1969, such that presumptive service connection is warranted. In his notice of disagreement, he stated that he had high blood pressure that began during service in Vietnam, and that he was provided with medication for high blood pressure within one year of separation from service. See Veteran’s notice of disagreement (VA Form 21-0958), received in June 2014. The Veteran’s personnel file shows that he served in the Republic of Vietnam, and he is presumed to have had herbicide agent exposure during service. 38 U.S.C. §§ 1116 (f); 38 C.F.R. § 3.307. Hypertension is not a disease presumptively related to herbicide agent exposure. 38 C.F.R. §§ 3.307, 3.309. However, a claimant is not precluded from establishing service connection with proof of actual direct causation. Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). Recently, the National Academy of Sciences, Engineering and Medicine (NAS) determined that there is “sufficient” evidence of an association between herbicide exposure and hypertension. See Veterans and Agent Orange: Update 11 (2018) (November 15, 2018). Accordingly, a medical opinion is needed to resolve this claim. These matters are REMANDED for the following action: 1. Obtain a medical opinion as to the etiology of the Veteran’s hypertension. The examiner should provide an opinion on whether it is at least as likely as not (a 50 percent probability or greater), that the Veteran’s hypertension (a) had a clinical onset during active service, (b) manifested within one year after separation from active service in January 1969, or (c) is otherwise related to the Veteran’s military service, including his presumed in-service exposure to herbicide agents (Agent Orange). For each question, explain why or why not? The examiner is asked to specifically address the latest findings from the National Academies of the Sciences, Engineering and Medicine (NAS) Veterans and Agent Orange: Update 11 (2018) regarding whether there is a relationship between the Veteran’s hypertension and exposure to herbicide agents (Agent Orange). The fact that hypertension has not been added to the list of diseases presumed service connected in veterans exposed to Agent Orange should not be a basis for a negative opinion. MATTHEW W. BLACKWELDER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T.S.E., 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.