Citation Nr: 21013227 Decision Date: 03/09/21 Archive Date: 03/09/21 DOCKET NO. 12-19 838 DATE: March 9, 2021 ORDER An initial compensable disability rating for bilateral hearing loss is denied. Service connection for vertigo, to include as secondary to service-connected bilateral hearing loss, is denied. Service connection for a prostate disorder, claimed as benign prostate hyperplasia (BPH), to include as secondary to toxic herbicide exposure, is denied. FINDINGS OF FACT 1. For the period on appeal, the Veteran’s bilateral hearing loss has been manifested by no worse than Level II hearing impairment bilaterally. 2. The Veteran’s balance disorder claimed as vertigo is not due to his active service or proximately due to his service-connected bilateral hearing loss. 3. The Veteran’s prostate disorder was not shown in service or for many years thereafter, and the evidence does not establish a relationship between his prostate disorder and active duty, or exposure to toxic herbicide exposure. CONCLUSIONS OF LAW 1. The criteria for an initial compensable disability rating for bilateral hearing loss have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.321, 4.3, 4.7, 4.85, Diagnostic Code 6100. 2. The criteria for entitlement to service connection for vertigo, to include as secondary to service-connected bilateral hearing loss have not been met. 38 U.S.C. §§ 1110, 1131, 5103(a), 5103A; 38 C.F.R. §§ 3.159, 3.303, 3.304. 3. The criteria for entitlement to service connection for a prostate disorder claimed as BPH, to include as related to toxic herbicide exposure, have not been met. 38 U.S.C. §§ 1110, 1131, 5103(a), 5103A; 38 C.F.R. §§ 3.159, 3.303, 3.304, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1966 to May 1970. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a rating decision issued in August 2011by a Department of Veterans Affairs (VA) Regional Office (RO). In January 2018, the Board remanded the issues of entitlement to service connection for a disorder manifested by vertigo and benign prostatic hypertrophy for additional development and denied an initial compensable rating for bilateral hearing loss. Thereafter, the Veteran appealed such denial to the United States Court of Appeals for Veterans Claims (Court). In March 2019, the Court granted the Veteran’s and the Secretary of VA’s (the parties’) Joint Motion for Partial Remand (JMPR), which vacated and remanded the Board’s January 2018 denial of an initial compensable rating for bilateral hearing loss. In August 2019 and September 2020, the Board remanded such issue for additional development. All claims now return to the Board for further appellate review. The Veteran’s vertigo has been characterized as a balance disorder of some kind including dizziness, chronic gait disorder, imbalance, etc. The Board acknowledges that the Court has held that when a veteran claims service connection, he or she is not claiming service connection for a specific diagnosis but for his or her symptoms regardless of the diagnosis, and the claim encompasses the underlying condition, regardless of diagnosis. Clemons v. Shinseki, 23 Vet. App. 1, 4-6 (2009). As such, the Veteran’s vertigo claim will be characterized to be included in a claim for a balance disorder. Increased Ratings Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. 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. See 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. While the Board typically considers only those factors contained wholly in the rating criteria, it is appropriate to consider factors outside the specific rating criteria when appropriate in order to best determine the level of occupational and social impairment. See Mauerhan v. Principi, 16 Vet. App. 436 (2002); Massey v. Brown, 7 Vet. App. 204, 208 (1994). Where there is a question as to which of two separate evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria required for that particular rating. 38 C.F.R. § 4.7. When a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. In cases where the Veteran’s claim arises from a disagreement with the initial evaluation following the grant of service connection, the Board shall consider the entire period of claim to see if the evidence warrants the assignment of different ratings for different periods of time during these claims a practice known as “staged” ratings. Fenderson v. West, 12 Vet. App. 119 (1999). 1. Entitlement to an initial compensable rating for bilateral hearing loss The Veteran asserts that he is entitled to an initial compensable rating for his service-connected bilateral hearing loss. In this case, the Veteran has been assigned a noncompensable rating for his bilateral hearing loss under 38 C.F.R. § 4.85, Diagnostic Code 6100. Assignment of a disability rating for hearing loss is derived by a mechanical application of the rating schedule to the specific numeric designations assigned after audiology testing is completed. Lendenmann v. Principi, 3 Vet. App. 345 (1992). Ratings for hearing loss, which range from noncompensable to 100 percent, are based on an organic impairment of hearing acuity as demonstrated by the results of speech discrimination tests together with the average hearing threshold levels as measured by pure tone audiometry tests in the frequencies of 1,000, 2,000, 3,000, and 4,000 Hertz (Hz). The degree of disability from service-connected hearing loss is rated based on 11 auditory acuity levels with Level I, representing essentially normal acuity, through level XI, representing profound deafness. See 38 C.F.R. § 4.85. Additionally, the schedule takes into account the effect of the Veteran’s hearing loss disability on occupational functioning and daily activities. Martinak v. Nicholson, 21 Vet. App. 447 (2007). An alternative rating method may be used when the pure tone threshold at each of the four specified frequencies (1,000, 2,000, 3,000, and 4,000 Hertz ) is 55 decibels or more, or when the pure tone threshold is 30 decibels or less at 1,000 Hz and 70 decibels or more at 2,000 Hz. 38 C.F.R. § 4.86. VA will determine the Roman numeral designation for hearing impairment from either Table VI or Table VIa based on whichever results in the higher numeral. Id. In hearing loss rating cases, an examination for VA purposes must be conducted by a state-licensed audiologist and must include a controlled speech discrimination test (Maryland CNC) and a pure tone audiometry test. Examinations are conducted without the use of hearing aids. 38 C.F.R. § 4.85(a). After a review of the evidence of record, the Board finds that an initial compensable disability rating for bilateral hearing loss is not warranted. Specifically, the VA examination from April 2011, reported that the Veteran had sensorineural hearing loss in both ears. The Veteran specifically detailed that he has difficulty hearing in “almost all” situations. Additionally, he noted ringing in his ears. On the authorized audiological evaluation, his pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 Avg RIGHT 10 10 20 65 26.25 LEFT 10 10 35 75 32.5 Speech audiometry revealed speech recognition ability of 92 percent in the right ear and left ear. Applying these values to Table VI, the Veteran exhibits Level I hearing loss bilaterally. When applying these levels to Table VII, a noncompensable rating is for evaluation. Therefore, based on this evidence, there is no clinical evidence to support the Veteran’s argument that he was entitled to an initial compensable disability rating in April 2011. Similarly, the VA examination from October 2020, reported that the Veteran had sensorineural hearing loss in both ears. The Veteran stated that he could not understand when others are talking to him. On the authorized audiological evaluation, his pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 Avg RIGHT 25 25 30 75 38.75 LEFT 20 20 60 95 48.75 Speech audiometry revealed speech recognition ability of 88 percent in the right ear and 90 percent in the left ear. Applying these values to Table VI, the Veteran exhibits Level II hearing loss bilaterally. When applying these levels to Table VII, a noncompensable rating is for evaluation. Therefore, based on this evidence, there is no clinical evidence to support the Veteran’s argument that he is entitled to an initial compensable disability rating as of October 2020. Accordingly, an initial compensable disability rating is not warranted on a schedular basis throughout the period on appeal. In considering the appropriate disability rating, the Board has also considered the Veteran’s statements that his hearing loss was worse than the ratings he received. In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. While the Veteran is competent to report symptoms because this requires only personal knowledge as it comes to him through his senses, he is not competent to identify a specific level of disability of his hearing loss according to the appropriate diagnostic codes. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) (“although interest may affect the credibility of testimony, it does not affect competency to testify”). On the other hand, such competent evidence concerning the nature and extent of the Veteran’s hearing loss has been provided by the medical personnel who have examined him during the current appeal and who have rendered pertinent opinions in conjunction with the evaluations. The medical findings (as provided in the examination reports) directly address the criteria under which these disabilities are evaluated. The Board also finds that consideration for an extraschedular evaluation, a component of a claim for an increased rating, is not warranted. Bagwell v. Brown, 9 Vet. App. 337, 339 (1996). Although the Board may not assign an extraschedular rating in the first instance, it must specifically adjudicate whether to refer a case for extraschedular evaluation when the issue either is raised by the claimant or is reasonably raised by the evidence of record. Barringer v. Peake, 22 Vet. App. 242 (2008). In considering whether an extraschedular rating may be warranted, VA must first determine whether the available applicable schedular rating criteria are inadequate because they do not contemplate the Veteran’s level of disability and symptomatology. If the rating criteria are inadequate, VA must then determine whether the Veteran exhibits an exceptional disability picture indicated by other related factors such as marked interference with employment or frequent periods of hospitalization. If such related factors are exhibited, then referral must be made to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for extraschedular consideration. See Thun v. Peake, 22 Vet. App. 111 (2008). In this case, the evidence does not indicate that Veteran’s disability picture could not be adequately contemplated by the applicable schedular rating criteria discussed above. Specifically, the Board has reviewed all of his relevant symptoms related to the issues on appeal, and concludes that there are no symptoms that were not able to be addressed by the applicable diagnostic codes, as it includes symptoms related to hearing loss. See Mittleider v. West, 11 Vet. App. 181 (1998); DC 6100. As such, the Veteran’s symptoms are not which are so unusual that they are outside the schedular criteria. Therefore, given that the applicable schedular rating criteria are more than adequate in this case, the Board need not consider whether the Veteran’s disability picture includes exceptional factors, and referral for consideration of the assignment of a disability evaluation on an extraschedular basis is not warranted. See Thun, 22 Vet. App. at 111; see also Bagwell v. Brown, 9 Vet. App. 337, 338-9 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). Service Connection Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131. Generally, the evidence must show: (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. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004); Caluza v. Brown, 7 Vet. App. 498, 505 (1995). In addition to the regulations cited above, service connection is warranted for a disability which is aggravated by, proximately due to, or the result of a service-connected disease or injury. 38 C.F.R. § 3.310. Any additional impairment of earning capacity resulting from an already service-connected condition, regardless of whether or not the additional impairment is itself a separate disease or injury caused by the service-connected condition, should also be compensated. Allen v. Brown, 7 Vet. App. 439 (1995). When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. Id. Finally, VA regulations state that a veteran who served in the Republic of Vietnam during the period from January 9, 1962 to May 7, 1975, shall be presumed to have been exposed during such service to an herbicide agent containing dioxin, 2,4-Dichlorophenoxyacetic acid or 2,4,5-Trichlorophenoxyacetic acid, and may be presumed to have been exposed during such service to any other chemical compound in an herbicide agent, unless there is affirmative evidence to the contrary. 38 U.S.C. § 1116; 38 C.F.R. § 3.307 (a)(6). Notably, these were the key compounds found in the tactical herbicides used during that time, with “Agent Orange” being the most common. Service connection is warranted for a veteran who has been exposed to toxic herbicide agents during active military service (subject to the requirements of 38 C.F.R. § 3.307 (a)) for diseases such as chloracne or other acneform diseases consistent with chloracne, Type 2 diabetes, Hodgkin’s disease, non-Hodgkin’s lymphoma, acute and subacute peripheral neuropathy, porphyria cutanea tarda, multiple myeloma, respiratory cancers (cancer of the lungs, bronchus, larynx, or trachea), soft-tissue sarcomas, ischemic heart disease, Parkinson’s disease, B-cell leukemias and prostate cancer. Moreover, service connection is warranted even if these disorders were not shown during active duty. 38 C.F.R. § 3.309(e). 2. Entitlement to service connection for vertigo 3. Entitlement to service connection for benign prostate hyperplasia (BPH) The Veteran asserts that his vertigo is related to service to include as secondary to his already service-connected bilateral hearing loss, and in the alternative due to agent orange exposure. Additionally, he asserts that his BPH is due to active duty service to include secondary to toxic herbicide exposure. Based on the evidence of record, the Board finds that service connection for a balance disorder or BPH is not warranted. As a preliminary matter, the Board has previously conceded that the Veteran served in Vietnam, and therefore he is presumed to have been exposed to herbicides for purposes of presumptive service connection under 38 C.F.R. § 3.309(e). Nevertheless, the evidence does not indicate, and the Veteran does not assert, that he has a condition listed under 38 C.F.R. § 3.309(e). As a result, presumptive service connection due to herbicide exposure is not for application for either disorder on appeal. Next, presumptive service connection notwithstanding, the Veteran may still establish service connection on a direct basis. See Combee v. Brown, 34 F.3d 1039, 1041-42 (Fed. Cir. 1994). However, service connection is also not warranted on this basis. First, the Veteran’s service treatment records do not reflect complaints of, treatment for or diagnosis of a balance disorder or issues with his prostate during active service. Additionally, his January 1970 separation examination indicated no signs of a balance disorder or BPH. Moreover, the post-service evidence does not reflect symptoms of these disorders until many years after separation. Specifically, the medical evidence reports that the Veteran was not treated for issues with balance until approximately 2013. Additionally, he was not diagnosed with BPH until approximately 2009. Therefore, presumptive service connection pursuant to 38 C.F.R. § 3.309(a) is not warranted because his balance disorder did not manifest to a degree of 10 percent or more within a year of separation from active service. See 38 C.F.R. § 3.307(a). As part of this claim, the Veteran asserts that he has had symptoms of vertigo since active duty service. Moreover, to the extent he alleges symptoms of BPH since service, the Board acknowledges such. However, while the Veteran is not competent to diagnose a balance disorder or BPH, as it may not be diagnosed by its unique and readily identifiable features, and thus require a determination that is “medical in nature,” he is nonetheless competent to testify about the presence of observable symptomatology such as dizziness or incontinence, which may provide sufficient support for a claim of service connection, if credible, regardless of the lack of contemporaneous medical evidence. Jandreau v. Nicholson, 492 F.3d 1372, 1376 (Fed. Cir. 2007); see Barr v. Nicholson, 21 Vet. App. 303, 307 (2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). Nevertheless, the Board determines that the Veteran’s reported history of continued symptomatology since active service, while competent, is nonetheless not credible. As an initial matter, the Board finds that such a large gap in treatment since separation from service weighs against the Veteran’s claims. Therefore, continuity is not established based on the evidence of record. Service connection may also be granted when the evidence establishes a medical nexus between active duty service and current complaints. In this case, the Board finds that the weight of the competent evidence does not attribute the Veteran’s asserted disability to active duty service. Regarding the Veteran’s balance disorder claim, the January 2019 VA examination reports that the Veteran was diagnosed with chronic gait disturbance claimed as vertigo in 2018. The VA examiner opined that it was less likely than not that the balance disorder was caused by or related to active duty service. In support, the examiner noted that he reviewed the service treatment records, but did not find evidence of gait disturbances, ataxia, vertigo, or other signs of vestibular pathology which were documented or diagnosed during his military service. He has presumed exposure to agent orange but given that the peripheral neuropathy manifested many years later it is unlikely to be related to his military service, to include possible exposures. Additionally, he opined that rheumatoid arthritis has not been linked to agent orange and is not a presumptive condition. Moreover, he opined that based upon the delayed onset it is unlikely that his balance disorder was caused by or aggravated by his service-connected bilateral hearing loss or tinnitus. Moreover, in a September 2020 VA addendum opinion the VA examiner largely agreed with all the previous finding no nexus between active duty service and the Veteran’s balance disorder noting that there has been no known correlation between balance disorders and agent orange exposure. With respect to, the Veteran’s BPH claim, a January 2019 VA examiner noted that the Veteran was never diagnosed with prostate cancer but did find a diagnosis of BPH. Then in September 2020, a VA examiner provider an addendum opinion that found that the Veteran’s BPH was less likely than not related to active duty service including conceded agent orange exposure. He opined that in addition to the Veteran having no diagnosis of BPH during service, that after reviewing medical literature there is no medical evidence of a link between toxic herbicide exposure and BPH. He noted that the prevalence of BPH increases with age, race, and other lifestyle factors. Thus, the Veteran has not provided a positive nexus for his claims. Additionally, it is important to note that the Veteran has not provided any opposing medical opinions to that of the VA examiners. In arriving at this conclusion, the Board has also considered possible statements made by the Veteran relating his balance disorder and BPH to his active service. The Federal Circuit has held that “[l]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a 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.” Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (quoting Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007)). In this case, however, the Veteran is not competent to provide testimony regarding a diagnosis and/or etiology of his balance disorder or BPH. See Jandreau, 492 F.3d at 1377, n.4. Because these disorders are not diagnosed by unique and readily identifiable features, it does not involve a simple identification that a layperson is competent to make. Therefore, the unsubstantiated statements regarding the claimed diagnosis and etiology of the Veteran’s disability are found to lack competency. In light of the above discussion, the Board concludes that the preponderance of the evidence is against the claims for service connection and there is no doubt to be otherwise resolved. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Therefore, the appeal is denied. 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. B.T. KNOPE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Billinger, Associate Counsel