Citation Nr: 21010444 Decision Date: 02/24/21 Archive Date: 02/24/21 DOCKET NO. 15-20 869 DATE: February 24, 2021 ORDER Entitlement to a compensable disability rating for bilateral hearing loss, is denied. Entitlement to service connection for brain tumor, to include as due to exposure to sarin gas, is denied. Entitlement to service connection for seizures, to include as secondary to brain tumor and associated medications, is denied. Entitlement to service connection for brain cancer, is denied. FINDINGS OF FACT 1. The Veteran’s bilateral hearing has been manifested by hearing acuity of no worse than Level II in the right ear and no worse than Level I in the left ear. 2. The preponderance of the evidence is against finding that brain tumor began during active service or is otherwise related to an in-service injury or disease. 3. The preponderance of the evidence is against finding that the Veteran’s seizures began during active service, or otherwise related to an in-service injury or disease, to include as secondary to brain tumor and associated medications. 4. The preponderance of the evidence is against finding that brain cancer began during active service or is otherwise related to an in-service injury or disease. 5. The Veteran was in receipt of a 100 percent schedular rating for service-connected COPD and the issue of TDIU is moot. CONCLUSIONS OF LAW 1. The criteria for a compensable rating for bilateral hearing loss have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.85, 4.86, Diagnostic Code 6100 (2020). 2. The criteria for service connection for a brain tumor are not met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2020). 3. The criteria for service connection for seizures, to include as secondary to brain tumor and associated medications have not been met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.310 (2020). 4. The criteria for service connection for brain cancer have not been met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2020). 5. The question of whether the Veteran was entitled to an award of TDIU is rendered moot by the previous grant of a 100 percent schedular ("total") rating for the service-connected COPD, leaving no question of law or fact to decide regarding the TDIU issue. 38 U.S.C. §§ 7104, 7105 (2012); 38 C.F.R. §§ 4.14, 4.16 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1971 to April 1987 and from April 1987 to November 1991. Unfortunately, the Veteran died in November 2015. The appellant is the Veteran’s surviving spouse, who has been properly substituted as the appellant. This case originally came before the Board of Veterans’ Appeals (Board) on appeal from a March 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO), in Muskogee, Oklahoma. In June 2019, the appellant testified at a travel board hearing at the VA Regional Office (RO) in Montgomery, Alabama, before the undersigned Veterans Law Judge (VLJ). A transcript of the hearing has been associated with the electronic claims record. In October 2019, the Board remanded this case for additional development. The Board’s previous remand directives have been substantially complied with, and the matter is properly before the Board. See Stegall v. West, 11 Vet. App. 268 (1998). The issue of entitlement to TDIU benefits is part and parcel of the underlying increased rating issue. Rice v. Shinseki, 22 Vet. App. 447 (2009). In the present case, the issue of entitlement to a TDIU was raised by the appellant during the June 2019 hearing and addressed below. Duty to Notify and Assist The Veteran has not raised any issues with the duty to notify or duty to assist. Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings liberally does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Increased Rating Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. 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 for that rating. 38 C.F.R. § 4.7. In considering the severity of a disability, it is essential to trace the medical history of the Veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41. Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). While the regulations require review of the recorded history of a disability by the adjudicator to ensure a more accurate evaluation, the regulations do not give past medical reports precedence over the current medical findings. Where entitlement to compensation has already 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). Consistent with the facts found, the rating may be higher or lower for segments of the time under review on appeal, i.e., the rating may be "staged." See Fenderson v. West, 12 Vet. App. 119 (1999). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the Veteran. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Hearing Loss – Legal Criteria The Rating Schedule provides a table (Table VI) to determine a Roman numeral designation (I through XI) for hearing impairment, based on puretone thresholds and controlled speech discrimination (Maryland CNC) testing. Table VII is used to determine the rating assigned by combining the Roman numeral designations for hearing impairment of each ear. 38 C.F.R. § 4.85. The "puretone threshold average" as used in Tables VI, is the sum of the puretone thresholds at 1000, 2000, 3000, and 4000 Hertz, divided by four. This average is used in all cases to determine the Roman numeral designation for hearing impairment from Table VI or VIa. 38 C.F.R. § 4.85(d). Ratings for hearing impairment are derived by the mechanical application of the Rating Schedule to the numeric designations assigned after audiometry evaluations are rendered. Lendenmann v. Principi, 3 Vet. App. 345 (1992). When the puretone 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. 38 C.F.R. § 4.86(a). Additionally, when the puretone 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). Under 38 C.F.R. § 4.85(f), if impaired hearing is service connected in only one ear, in order to determine the percentage evaluation from Table VII, the non-service-connected ear will be assigned a Roman Numeral designation of I, subject to the provisions of § 3.383. An examination for hearing impairment for VA purposes must be conducted by a state licensed audiologist and must include a controlled speech discrimination test (Maryland CNC) and a puretone audiometry test. Examinations will be conducted without hearing aids. 38 C.F.R. § 4.85(a). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the Veteran. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 1. Entitlement to a compensable disability rating for bilateral hearing loss The appellant contends that a compensable rating is warranted for the Veteran’s bilateral hearing loss. The Board previously remanded the issue to allow the appellant to submit additional medical records and offer a retrospective VA opinion after the records were associated. However, no records were received. A review of the record shows that a March 2013 rating decision granted the Veteran a non-compensable rating for bilateral hearing loss, effective December 2011. The Veteran was afforded a VA audiological examination in June 2012. The June 2012 VA examination showed pure tone thresholds, in decibels as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 25 40 50 60 65 LEFT 25 40 40 55 70 Speech audiometry revealed speech recognition ability of 84 percent in the right ear and 96 percent in the left ear. The pure tone threshold average in the right ear was 54 decibels and 51 decibels in the left ear. Hearing loss will be characterized as “exceptional” if the puretone threshold at 1000, 2000, 3000, and 4000 are each 55 decibels or more; or if the puretone threshold at 1000 is 30 decibels or less and at 2000 is 70 decibels or more. If exceptional hearing loss is present, the numerical designation will be derived using either Table VI OR Table VIa, whichever results in the higher designation. Here, an exceptional hearing loss pattern is not shown. When the puretone threshold averages and the speech recognition score for the right ear from the VA examination in June 2012 are applied to Table VI, the numeric designation of right ear hearing impairment is level II. When the puretone threshold averages and the speech recognition score for the left ear from the VA examination in June 2012 are applied to Table VI, the numeric designation of left ear hearing impairment is level I. When these numeric designations for the right and left ears are applied to Table VII (Percentage Evaluation for Hearing Impairment-Diagnostic Code 6100), the percentage of disability for hearing impairment is shown to be a non-compensable rating. See 38 C.F.R. § 4.85, Diagnostic Code 6100. The Board has considered the Veteran's previous lay statements and the appellant’s lay statements and testimony. See Layno v. Brown, 6 Vet. App. 465, 469-70 (1994). While the Board is empathetic, it is bound to apply the VA rating schedule, under which the rating criteria are defined and limited by audiometric findings. This criteria measures hearing acuity directly in a controlled laboratory environment. In this regard, VA audiometric examinations showed no basis for any increase in the disability evaluation for the Veteran’s bilateral hearing loss. The Board does not question the Veteran’s or the appellant’s credibility in that regard. However, the Veteran, nor the appellant are considered competent to assess the relative severity of hearing loss, to include any increase in severity, as doing so involves medical testing and medical knowledge that they have not shown to possess. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). As the preponderance of the evidence weighs against the claim, the benefit-of-the-doubt doctrine is not for application. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, supra. The claim is denied. Service Connection Service connection requires evidence of (1) a current disability, (2) in-service incurrence or aggravation of a disease or injury, and (3) a nexus, or link, between the current disability and the in-service disease or injury. 38 C.F.R. § 3.303(a); Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). With chronic diseases shown as such in service (or within the presumptive period under § 3.307), so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however, remote, are service connected, unless clearly attributable to intercurrent causes. For a showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time. When the disease entity is established, there is no requirement of an evidentiary showing of continuity. If the condition noted during service (or in the presumptive period) is not shown to be chronic or where the diagnosis of chronicity may be legitimately questioned, then generally a showing of continuity of symptomatology after discharge is required to support the claim. 38 C.F.R. § 3.303(b); see also Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (holding that as an alternative to the nexus requirement, service connection for a chronic disease listed under 3.309(a) may be established through a showing of continuity of symptomatology since service). In each case where a veteran is seeking service connection for a disability, due consideration shall be given to the places, types, and circumstances of the veteran’s service as shown by the veteran’s service record, the official history of each organization in which the veteran served, the veteran’s treatment records, and all pertinent medical and lay evidence. See 38 U.S.C. § 1154(a). Additionally, service connection may be granted on a secondary basis. Secondary service connection may be granted for a disability that is proximately due to, or aggravated by, a service-connected disease or injury. 38 C.F.R. § 3.310. To prevail on the issue of entitlement to secondary service connection, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) nexus evidence establishing a connection between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). In making all determinations, the Board must consider fully the lay assertions of record. A layperson is competent to report on the onset and recurrent symptoms. 38 C.F.R. § 3.159. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). Lay evidence also can be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran’s particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011). The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence, which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the appellant. Equal weight is not necessarily accorded to each piece of evidence contained in the record; not every item of evidence necessarily has the same probative value. When all the evidence is assembled, 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 a claim, in which case, the claim is denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 2. Entitlement to service connection for brain cancer 3. Entitlement to service connection for brain tumor, to include as due to exposure to sarin gas The appellant contends that the Veteran is entitled to service connection for brain cancer and brain tumor. Specifically, she contends her husband’s exposure to sarin and/or mustard gas while serving in the Persian Gulf caused his brain tumor. The Veteran died in November 2015. The cause of death was listed as oligodendroglioma (brain cancer) and COPD. See December 2015 death certificate. A review of the record shows that the Veteran was service connected for COPD prior to his death and a January 2016 rating decision granted service connection for the Veteran’s cause of death because COPD was recorded as a cause of death in addition to oligodendroglioma on his death certificate. The Board previously remanded the issue because the appellant referenced treatment records that were not associated with the Veteran’s claims file. However, no records were received. As an initial matter, the Veteran has confirmed service in the Southwest Asia theater of operations during active duty, and thus qualifies as a Persian Gulf Veteran for purposes of 38 C.F.R. § 3.317. However, as brain tumor and brain cancer represent a specific diagnosis, and is not accurately characterized as an undiagnosed illness, a medically unexplained chronic multisymptom illness, or a diagnosed illness that the Secretary has determined in regulations prescribed under 38 U.S.C.§ 1117 to warrant a presumption of service connection for Persian Gulf veterans, service connection on a presumptive basis is not warranted. A June 2012 VA examination was afforded to the Veteran to determine the nature and etiology of his brain cancer and brain tumor. The VA examiner noted a diagnosis of oligodendroglioma in 2011 and a craniotomy in January 2012 with four rounds of chemotherapy. The Veteran’s speech and gait were normal as was his strength. The VA examiner noted functional limitations caused by the Veteran’s on-going chemotherapy, including nausea, chronic fatigue, decreased appetite with weight loss, and disrupted sleep, preventing manual labor and more likely than not interfere with ability to obtain and maintain certain types of employment. The VA examiner opined that the Veteran’s brain tumor was less likely than not related to the Veteran’s service, to include exposure to sarin gas. In support of his negative nexus opinion, the VA examiner reasoned that the Veteran’s service records did not document symptoms caused by exposure to chemicals and that sarin is not known to cause cancer and there is no medical evidence in current medical literature that sarin is a cause of brain tumors or cancer. The VA examiner opined that the Veteran’s brain tumor more likely developed from genetic mutations like those that lead to brain cancer in the majority of people with a similar diagnosis. A post-remand VA opinion was obtained in January 2020. The examiner noted that the Veteran was diagnosed with oligodendroglioma status post craniotomy. The examiner provided a negative etiology opinion and added a rationale that this type of brain tumor is the most common type and mostly due to unknown etiology or genetic factors and that brain tumors and cancer were not caused as a result of potential exposure to mustard or sarin gas. A review of the Veteran’s post-Gulf War deployment examination shows that he provided a negative answer when asked if he had reason to believe that he, or any member of his unit were exposed to chemical warfare or germ warfare. See May 1991 Southwest Asia Demobilization/Redeployment Medical Evaluation. A Department of Defense fact sheet submitted by the Veteran also notes that sarin nor cyclosarin are known to cause cancer according to an Institute of Medicine (IOM) report. See May 2012 Correspondence. The Board has considered lay statements from the Veteran, the appellant, and her representative, including the June 2019 hearing testimony. However, a diagnosis of brain tumor and cancer requires specialized testing and medical analysis that is beyond the capacity of a lay person. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). The record does not show that the Veteran, the appellant, or her representative possess the requisite medical knowledge to make such a determination whether the Veteran’s brain tumor or cancer was caused as a result of his active duty service. As the preponderance of the evidence weighs against the claim, the benefit-of-the-doubt doctrine is not for application. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, supra. Service connection is not warranted on a direct, secondary or presumptive basis. Thus, entitlement to service connection for brain cancer and entitlement to service connection for brain tumor, to include as due to exposure to sarin gas is denied. 4. Entitlement to service connection for seizures, to include as secondary to brain tumor and associated medications The appellant contends that the Veteran is entitled to service connection for seizures, to include as secondary to brain tumor and associated medications. As noted above, secondary service connection may be granted for a disability that is proximately due to, or aggravated by, a service-connected disease or injury. 38 C.F.R. § 3.310. To prevail on the issue of entitlement to secondary service connection, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) nexus evidence establishing a connection between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). The Board previously remanded the issue because the appellant referenced treatment records that were not associated with the Veteran’s claims file. However, no records were received. The Veteran also has confirmed service in the Southwest Asia theater of operations during active duty, and thus qualifies as a Persian Gulf Veteran for purposes of 38 C.F.R. § 3.317. However, as epilepsy represents a specific diagnosis, and is not accurately characterized as an undiagnosed illness, a medically unexplained chronic multisymptom illness, or a diagnosed illness that the Secretary has determined in regulations prescribed under 38 U.S.C.§ 1117 to warrant a presumption of service connection for Persian Gulf veterans, service connection on a presumptive basis is not warranted. The Veteran was provided a VA examination in June 2012. However, the examiner did not issue a nexus opinion, but noted that the Veteran was placed on daily anti-seizure medication because of epileptiform changes on EEG in a setting of a malignant brain tumor. A post-remand VA medical examination was provided to the Veteran in January 2020. The examiner opined that seizures were less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. A rationale was provided that the seizures are most likely secondary to the brain tumor. The examiner noted that there were no reports of seizures before the diagnosis of the brain tumor. Therefore, the examiner concluded the seizures are less likely to have occurred before service, while in service, or due to other service-connected condition. The Board has considered lay statements from the Veteran, the appellant and her representative, including the June 2019 hearing testimony. However, a diagnosis of seizures requires specialized testing and medical analysis that is beyond the capacity of a lay person. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). The record does not show that the Veteran, the appellant, or her representative possess the requisite medical knowledge to make such a determination whether the Veteran’s seizures were caused as a result of his brain tumor or medication. Furthermore, the Veteran is not service connected for a brain tumor to warrant service connection on a secondary basis for seizures. As the preponderance of the evidence weighs against the claim, the benefit-of-the-doubt doctrine is not for application. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, supra. Service connection is not warranted on a direct, secondary or presumptive basis. The claim is denied. TDIU The appellant also claims the Veteran was entitled to TDIU prior to his death. See June 2019 Hearing Transcript. The Board may assign total disability ratings for compensation where the schedular rating is less than total, when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that the Veteran meets the schedular requirements. If there is only one service-connected disability, this disability should be rated at 60 percent or more; if there are two or more disabilities, at least one should be rated at 40 percent or more with sufficient additional service-connected disability to bring the combination to 70 percent or more. 38 C.F.R. § 4.16(a). A total disability rating may also be granted where the schedular rating is less than 100 percent and the veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. § 4.16(b). The central inquiry is "whether the veteran's service-connected disabilities alone are of sufficient severity to produce unemployability." Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). The Court has recognized that a 100 percent rating under the Schedule for Rating Disabilities means that a Veteran is totally disabled. Holland v. Brown, 6 Vet. App. 443, 446 (1994), citing Swan v. Derwinski, 1 Vet. App. 20, 22 (1990). Thus, if VA has found a veteran to be totally disabled as a result of a particular service-connected disability or combination of disabilities pursuant to the rating schedule, there is no need, and no authority, to otherwise rate that veteran totally disabled on any other basis. See Herlehy v. Principi, 15 Vet. App. 33, 35 (2001) (finding a request for TDIU moot where 100 percent schedular rating was awarded for the same period). However, a grant of a 100 percent disability does not always render the issue of TDIU moot. As is potentially relevant here, VA's duty to maximize a claimant's benefits includes consideration of whether the disabilities establish entitlement to SMC under 38 U.S.C. § 1114. See Buie v. Shinseki, 24 Vet. App. 242, 250 (2011); Bradley v. Peake, 22 Vet. App. 280, 294 (2008). Specifically, SMC may be warranted if the Veteran has a 100 percent disability rating for a single disability, and VA finds that TDIU is warranted based solely on the disabilities other than the disability that is rated at 100 percent. See Bradley, 22 Vet. App. 280 (analyzing 38 U.S.C. § 1114 (s)); see also 75 Fed. Reg. 11,229-04 (March 10, 2010) (withdrawing VAOPGCPREC 6-1999). (Continued on the next page)   Notably, such a scenario is not present here, as the Veteran was service connected for COPD, and assigned a 100 percent rating and a non-compensable rating for bilateral haring loss. Therefore, the issue of entitlement to a TDIU is moot. Furthermore, the Veteran filed a VA 21-8940 Veterans Application for Increased Compensation Based on Unemployability in May 2012 and claimed that he could not work as a result of his brain tumor. As brain tumor has been found not to be a service-connected condition, entitlement ot a total disability based on individual unemployability is not warranted for any point during the appeal period. KRISTI L. GUNN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Khan, 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.