Citation Nr: 21009727 Decision Date: 02/23/21 Archive Date: 02/23/21 DOCKET NO. 16-59 539 DATE: February 23, 2021 ORDER Service connection for bladder cancer is granted. An initial compensable rating for service-connected hearing loss is denied.   FINDINGS OF FACT 1. The Veteran had regular contact with base perimeters during service in Thailand. 2. The Veteran’s bladder cancer is related to the exposure to herbicides in service. 3. During the pendency of the appeal, the Veteran’s hearing loss has been manifested by no worse than level I in the right ear and level II in the left ear. CONCLUSIONS OF LAW 1. The criteria for service connection for bladder cancer are met. 38U.S.C. §§1110, 1116, 1131, 5107; 38C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. The criteria for an initial compensable rating for hearing loss are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.85, Diagnostic Code (DC) 6100. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1966 to June 1977. The Veteran had additional service in the Alabama Air National Guard. The case is on appeal from a February 2015 rating decision. In August 2019, the Veteran testified at a Board hearing. In a November 2019 decision, the Board granted service connection for coronary artery disease (CAD) and diabetes mellitus type II. The Board also remanded the issues of service connection for bladder cancer and a compensable rating evaluation for hearing loss. The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008). 1. Service connection for bladder cancer. Legal Criteria Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38U.S.C. §§1110, 1131; 38C.F.R. §3.303. A veteran seeking compensation under these provisions must establish three elements: “(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service.” Saunders v. Wilkie,886 F.3d 1356, 1361(Fed. Cir. 2018) (quoting Shedden v. Principi,381 F.3d 1163, 1167(Fed. Cir. 2004)). If a veteran was exposed to an herbicide agent during active military, naval, or air service, certain diseases are presumed to be service connected if the requirements of 38C.F.R. §3.307(a)(6) are met, even though there is no record of the disease during service. 38U.S.C. §1116(a); 38C.F.R. §3.309(e). VA laws and regulations provide that a veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the Vietnam war, shall be presumed to have been exposed to an herbicide agent, unless there is affirmative evidence to the contrary. See 38U.S.C. §1116(a)(3); 38C.F.R. §3.307(a)(6)(iii). The National Defense Act of 2020, Public Law (PL) 116-283 (2020), which went into effect on January 1, 2021, amended the provisions set forth in 38 U.S.C. § 1116 to include new disorders, such as bladder cancer, to the list of the diseases presumptively associated with exposure to herbicide agents. Amendments to the regulations have yet to be promulgated. VA has determined that there was use of herbicides on or near the perimeters of military bases in Thailand intended to eliminate vegetation and ground cover for base security purposes. See https://www.publichealth.va.gov/ exposures/ agentorange/locations/thailand.asp. If a veteran served in the U.S. Air Force in Thailand during the Vietnam era, and provided perimeter security on Royal Thai Air Force Bases (RTAFB) at U-Tapao, Ubon, Nakhon Phanom, Udorn, Takhli, Korat or Don Muang, or who were stationed on small Army installations as a member of the military police (MP), security patrol dog handler, member of a security police squadron, or otherwise served near the air base perimeter, as shown by MOS (military occupational specialty), performance evaluations, or other credible evidence, herbicide exposure should be conceded on a facts-found or direct basis. VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38U.S.C. §5107(b); 38C.F.R. §3.102; Gilbert v. Derwinski,1 Vet. App. 49 (1990). Analysis The Veteran contends that his bladder cancer is attributed to the regular exposure to herbicide agents, such as Agent Orange, while stationed at U-Tapao RTAFB in Thailand in support of operations during the Vietnam War. A DD-214 of record reflects the Veteran’s military occupational specialty (MOS) was as a Communications Systems Officer. Service treatment records (STRs) reflect that the Veteran also had service at the Udorn RTAFP in Thailand in 1971 and 1972. Furthermore, the Board notes that the Veteran is presumed to have been exposed to herbicide agents during his service in Thailand as the Board determined this fact in the last decision. The Board notes the Veteran has a current diagnosis of bladder cancer which was diagnosed in March 2014, and which is currently in remission. See June 2020 VA Urinary Tract examination. Thus, the current disability element of the claim has been established. Pursuant to the Board’s November 2019 remand, the Veteran was afforded a VA examination in June 2020, in connection with this claim. The VA examiner opined that the claimed disability was less likely than not incurred in or caused by the Veteran’s military service. The examiner concluded that besides that there is no evidence of a diagnosis of bladder cancer during active duty service, there is no credible medical evidence to support a causal link between bladder cancer and exposure to herbicides, or any association between bladder cancer and the in-service reported albuminuria or orthostatic albuminuria. Nevertheless, while in remand status, 38 U.S.C. § 1116 was amended and bladder cancer was added to those diseases listed as presumptively linked to exposure to herbicide agents. Hence, as bladder cancer is now a disability listed as presumptively due to herbicide exposure, the Board finds that service connection for bladder cancer is warranted. For the limited purpose of resolving this appeal, the Board assumes that the disability has manifested to at least a degree of 10 percent. 38 C.F.R. § 3.307(a)(6)(ii). Moreover, there is no affirmative evidence to the contrary. Accordingly, service connection for bladder cancer is warranted. 2. An initial compensable rating for hearing loss. Legal Criteria Ratings are based on a schedule of reductions in earning capacity from specific injuries or combination of injuries. The ratings shall be based, as far as practicable, upon the average impairments of earning capacity resulting from such injuries in civil occupations. 38 U.S.C. § 1155. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1. Disability evaluations for hearing impairment are derived by a mechanical application of the rating schedule to the numeric designations assigned after audiometric evaluations are rendered. See Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). Examinations are conducted using the controlled speech discrimination tests together with the results of the pure tone audiometry test. See 38 C.F.R. § 4.85. The results are analyzed using the tables contained in 38 C.F.R. § 4.85, Tables VI and VII, DC 6100. The rating schedule for hearing loss provides that evaluations of hearing loss range from noncompensable to 100 percent based on organic impairment of hearing acuity as measured by the results of controlled speech discrimination tests together with average hearing threshold levels as measured by pure tone audiometry tests in the frequencies 1000, 2000, 3000 and 4000 cycles per second (Hertz). To evaluate the degree of disability from defective hearing, the rating schedule established eleven auditory acuity levels designated from level I for essentially normal acuity through level XI for profound deafness. Where there is a question as to which of two evaluations shall be applied, the higher evaluation 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. When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. Analysis The Veteran contends that he is entitled to a compensable rating for his service-connected hearing loss. During his August 2019 Board hearing, the Veteran indicated that he is “starting to lose people’s conversation in a crowd or sitting at a table” and that he misses things if he is not turning into a specific direction. The Veteran was afforded a VA audiological examination in October 2018. The Veteran’s Maryland CNC Word List speech recognition score and pure tone thresholds, in decibels, were as follows: HERTZ 10/02/2018 1000 2000 3000 4000 Avg CNC RIGHT 25 50 65 75 53.75 92% LEFT 20 40 55 60 43.75 90% The results correspond to level I hearing loss in the right ear and level II hearing loss in the left ear which reflect a noncompensable rating for the Veteran’s hearing loss. 38 C.F.R. § 4.85. In August 2019, the Veteran submitted a private audiological examination from Southern ENT and Sinus Center. The Veteran’s speech recognition score and pure tone thresholds, in decibels, were as follows: HERTZ 08/20/2019 1000 2000 3000 4000 Avg Speech Recognition RIGHT 15 40 --- 55 27.5 80% LEFT 20 35 50 55 40 76% The above pure tone thresholds cannot be converted for rating purposes as it is unclear which speech recognition test was used in the private audiology report. In this regard, the Board notes that in its November 2019 remand, a request for further development included to clarify this aspect of the claim with Southern ENT & Sinus Center. See Savage v. Shinseki, 24 Vet. App. 259 (2011). Specifically, the Board requested to clarify what type of speech discrimination test was used in the audiometric testing for the Veteran. Pursuant to the Board’s remand, the RO conducted additional development in December 2019, January 2020, September 2020 and October 2020. The Board notes that following the first December 2019 Subsequent Development Letter, the Veteran submitted additional records from Southern ENT & Sinus Center in January 2020. However, the records do not contain any information as to the speech discrimination test used in the August 2019 audiometric testing. Nevertheless, the Veteran was afforded a new and contemporaneous VA audiological examination in November 2020 to ascertain the severity of his hearing loss. The Veteran’s Maryland CNC Word List speech recognition score and pure tone thresholds, in decibels, were as follows: HERTZ 11/12/2020 1000 2000 3000 4000 Avg CNC RIGHT 20 50 75 80 56 92% LEFT 20 40 65 70 49 92% These results correspond to level I hearing loss in both ears, which reflect a noncompensable rating for the Veteran’s hearing loss. 38 C.F.R. § 4.85. In consideration of this evidence, the Board finds a compensable rating for the Veteran’s hearing impairment is not warranted at any point during the appeal. While the Veteran contends an initial compensable rating must be warranted for his hearing loss, the mechanical hearing testing results from the VA audiological examinations of record shows that the Veteran’s hearing loss is correctly evaluated as noncompensably disabling. The evidence supports that throughout the pendency of the appeal, the Veteran has experienced, at the most, no worse than level I hearing loss for the right ear and level II hearing loss for the left ear as shown by the October 2018 VA audiological examination. Nevertheless, most recent evidence supports he currently experiences no worse than level I hearing loss bilaterally. See November 2020 VA audiological examination. Thus, upon application of the rating criteria under DC 6100 to the audiological results, an increased rating is not warranted for the Veteran’s bilateral hearing loss at any point during the appeal. In sum, the Board finds that the preponderance of the evidence is against an initial compensable rating for hearing loss. As such, the benefit of the doubt doctrine is not applicable and an initial compensable rating for hearing loss is not warranted. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. RYAN T. KESSEL Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board William Pagan, 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.