Citation Nr: 21013367 Decision Date: 03/09/21 Archive Date: 03/09/21 DOCKET NO. 17-60 197 DATE: March 9, 2021 ORDER Entitlement to service connection for chronic myelogenous leukemia (CML) is granted. Entitlement to a compensable rating for bilateral hearing loss is denied. FINDINGS OF FACT 1. After resolving all doubt in favor of the Veteran, the Veteran’s CML is related to his in-service exposure to chemicals, such as benzene. 2. At all times during the pendency of the appeal, the audiometric test results obtained during examination by a VA audiologist correspond to a numeric designation of no greater than Level I in the right ear and Level III in the left ear. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for CML have been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for entitlement to a compensable rating for bilateral hearing loss have not been met. 38 U.S.C. §§ 1154 (a), 1155, 5107(b); 38 C.F.R. §§ 3.102, 4.85, 4.86, Diagnostic Code 6100. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1972 to October 1976. In January 2021, the Veteran testified at a virtual hearing before the undersigned Veterans Law Judge. A transcript of that hearing is of record. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a November 2015 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). Service Connection The Veteran contends, in substance, that he was exposed to hazardous chemicals in active service that caused his CML. See January 2021 Hearing Transcript. Generally, to prevail on a claim of service connection on the merits, there must be competent evidence of (1) current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence or other competent evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. See Hickson v. West, 12 Vet. App. 247 (1999); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). In evaluating a claim, the Board must consider all evidence of the record and make appropriate determinations of competence, credibility, and weight. Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). This determination includes evaluating the weight of medical and lay evidence. See 38 U.S.C. § 7104 (a); 38 C.F.R. § 3.303 (a); Buchanan v. Nicholson, 451 F.3d 1331, 1335 (2006). Due consideration shall be given to the places, types, and circumstances as shown by the Veteran’s service record. 38 U.S.C. § 1154 (a). The Board must weigh any competent and credible lay evidence against the other evidence of record, including any medical opinions. King v. Shinseki, 700 F.3d 1339, 1345 (Fed. Cir. 2012); Layno v. Brown, 6 Vet. App. 465, 469-70 (1994). For example, the Board may weigh the absence of contemporaneous medical evidence against the lay evidence of record. Buchanan, 451 F.3d at 1337. After consideration of all evidence and material of record, the Board is responsible for evaluating the balance of positive and negative evidence regarding any issue material to the determination of a matter. If the preponderance of the evidence is against the claim, the claim is denied; if the evidence is in support of the claim or is in equal balance, the claim is resolved in favor of the Veteran. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). The Board concludes that the Veteran has a current disability that is related to in-service exposure to hazardous chemicals. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). December 2019 private treatment records show the Veteran has a current diagnosis of CML, in remission and treated by continuous medication. See, e.g., December 2019 Florida Cancer Specialists, Follow Up. In various written statements and during a January 2021 hearing, the Veteran has maintained that he has CML due to his exposure to a variety of hazardous chemicals such as methylethylketone (MEK), benzene, nitrobenzene, chromium sulfate, aluminum anodizing liquids, and other dangerous solvents or carcinogens. The Veteran contends he was exposed to these chemicals while working in electrical shop in aviation by cleaning and servicing aircrafts with no personal protective equipment (PPE). See January 2021 Hearing Transcript. The Veteran also contends he was exposed to chemicals when he worked with the Corrosion Control Team. See id. The Veteran’s service treatment records (STRs) note that the Veteran was stationed in electronics and transferred to the Corrosion Control Team, where he worked with paints and chemicals of various types. See September 1975 STRs. The records on this point are unusually clear for records from the 1970’s. Furthermore, the Veteran reported feeling much worse working under the Corrosion Control Team with dyspnea, shortness of breath, inspiratory wheezing, congestion, and coughing attacks. See id. A private physician reported a positive exposure to nitrobenzene, benzene, and MEK for the Veteran while he was in the U.S. Navy from spray painting of military aircraft. See August 2019 Morris Medical Center, Narrative Report. Furthermore, the examiner opined that the Veteran’s CML is causally related to the Veteran’s time in the U.S. Navy due to the severe chemical exposure of nitrobenzene, benzene, and MEK paired with a lack of proper preventive measures. See id. The physician found this supported by the Veteran’s complaint and objective findings of treatment notes dating as far back as September 1975. Id. The Board finds the statements from the Veteran regarding the Veteran’s in-service exposure to chemicals, such as benzene, to be credible. It appears from a detailed review of the Veteran’s service records that the Veteran’s exposure to these chemicals was unusually extensive and that precautions used today were not used when the Veteran was working with these products. The private medical opinion must also be given great probative value. Upon review of the unique record, the Board finds the evidence to at least be in equipoise as to whether the Veteran’s current CML is related to service. Accordingly, after resolving all doubt in favor of the Veteran, the Board finds that service connection for CML is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Increased Rating The Veteran asserts that his bilateral hearing is worse than the assigned disability rating reflects. Disability evaluations are determined by the application of a schedule of ratings which is based, as far as can practically be determined, on the average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Each service-connected disability is rated on the basis of specific criteria identified by Diagnostic Codes. 38 C.F.R. § 4.27. When rating the Veteran’s service-connected disability, the entire medical history must be borne in mind. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The Court has held that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505 (2007). Separate evaluations may be assigned for separate periods of time if such distinct periods are shown by the competent evidence of record during the appeal, a practice known as “staged” ratings. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). Regulations require that where there is a question as to which of two evaluations is to 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. Hearing loss is evaluated under 38 C.F.R. §§ 4.85, 4.86, DC 6100, Tables VI, VIA, and VII of VA’s rating schedule. The Rating Schedule provides a table for rating purposes (Table VI) to determine a Roman numeral designation (I through XI) for hearing impairment, established by a state-licensed audiologist including a controlled speech discrimination test (Maryland CNC), and based upon a combination of the percent of speech discrimination and the pure tone threshold average which is the sum of the pure tone thresholds at 1000, 2000, 3000 and 4000 Hertz, divided by four. 38 C.F.R. § 4.85. Table VII is used to determine the percentage evaluation by combining the Roman numeral designations for hearing impairment of each ear. The horizontal row represents the ear having the poorer hearing and the vertical column represents the ear having the better hearing. Id. The Court has held that the assignment of disability ratings for hearing impairment are to be 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). Simply stated, this means that while the Veteran may have hearing problems (this fact is not in dispute), whether he has hearing loss warranting compensation is based on certain objective criteria. The only question is the degree of disability. To evaluate the degree of disability from bilateral service-connected hearing loss, the schedule establishes 11 auditory hearing acuity levels designated from Level I for essentially normal hearing acuity through Level XI for profound deafness. 38 C.F.R. § 4.85, Tables VI and VII. An exceptional pattern of hearing impairment occurs when the pure tone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) is 55 decibels or more. 38 C.F.R. § 4.86(a). In that situation, 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. Further, when the average 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 designation for hearing impairment from either Table VI or Table VIA, whichever results in the higher numeral, and that numeral will then be elevated to the next higher numeral. 38 C.F.R. § 4.86(b). An October 2015 VA examination reveals that the Veteran reported bilateral hearing loss. 38 C.F.R. § 4.10; Martinak v. Nicholson, 21 Vet. App. 447 (2007). The Veteran’s Maryland CNC Word List speech recognition score and pure tone thresholds, in decibels, were as follows: 10/31/2015 HERTZ 1000 2000 3000 4000 Avg CNC RIGHT 30 55 55 60 50 92 LEFT 25 55 85 85 63 88 Applying the results to Table VI, the findings yield a numeric designation of Level I in the right ear and Level III in the left ear. Entering the resulting bilateral numeric designation of Level I for the right ear and Level III for the left ear to 38 C.F.R. § 4.85, Table VII, equates to a noncompensable disability rating under Diagnostic Code 6100. The Veteran does not have an exceptional pattern of hearing. Audiometric testing provided by the Veteran in November 2019 yielded similar results, with a pure tone average of 51 for the right ear and 64 for the left ear. However, the Maryland CNC Word List speech recognition score was not provided. Based on the evidence above, a compensable rating for the Veteran’s bilateral hearing loss is not warranted. The Veteran is competent to report difficulty with his hearing; however, disability ratings for hearing loss are derived from a mechanical application of the rating schedule to the numeric designations resulting from audiometric testing. See Lendenmann, 3 Vet. App. at 349. The rating criteria contemplate speech reception thresholds and ability to hear spoken words on Maryland CNC testing. The functional impact that the Veteran describes, is contemplated by the rating criteria. Doucette v. Shulkin, 28 Vet. App. 366 (2017). The Veteran’s main complaint is reduced hearing, which is what is contemplated in the rating assigned. See Rossy v. Shulkin, 29 Vet. App. 142, 145 (2017). Accordingly, the preponderance of the most probative evidence is against the claim of entitlement to a compensable rating for hearing loss. In reaching the conclusion above, the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the Veteran’s claim, the doctrine is not for application. Gilbert, 1 Vet. App. at 55. John J. Crowley Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Laura Cochran, 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.