Citation Nr: 21013937 Decision Date: 03/10/21 Archive Date: 03/10/21 DOCKET NO. 17-57 416 DATE: March 10, 2021 ORDER Entitlement to an initial rating in excess of 10 percent for a bilateral hearing loss disability is denied. REMANDED Entitlement to service connection for kidney disease, to include as due to herbicide agent exposure is remanded. Entitlement to service connection for a skin disability, to include as due to herbicide agent exposure is remanded. Entitlement to service connection for rhinitis is remanded. Entitlement to service connection for acute pharyngitis is remanded. FINDING OF FACT During the period on appeal, the Veteran’s bilateral hearing loss disability has manifested by hearing acuity of no worse than Level V in the right ear and no worse than Level IV in the left ear. CONCLUSION OF LAW The criteria for an initial rating in excess of 10 percent for a bilateral hearing loss disability 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). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from April 1958 to May 1977. This matter came before the Board of Veterans Appeals (Board) on appeal from an April 2017 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veteran’s Law Judge during an April 2019 hearing. The transcript of the hearing is of record. An April 2019 Board decision remanded the issues on appeal for further development. An October 2020 rating decision granted service connection for ischemic heart disease. As this constituted a complete grant of the benefit sought on appeal for that issue, it is not before the Board. 1. Entitlement to an initial rating in excess of 10 percent for a bilateral hearing loss disability The Veteran contends that he is entitled to a higher rating for his bilateral hearing loss disability, which is currently rated at 10 percent. The Board concludes that the criteria for a rating in excess of 10 percent have not been met as the evidence indicates that the Veteran’s hearing loss disability is manifested by hearing acuity of no worse than Level V in the right ear and Level IV in the left ear. Evaluations for defective hearing are based upon organic impairment of hearing acuity as measured by the results of controlled speech discrimination tests, along with the average hearing threshold level as measured by puretone audiometric tests in the frequencies of 1000, 2000, 3000, and 4000 Hertz. 38 C.F.R. § 4.85, Tables VI, VII. To evaluate the degree of disability for service-connected bilateral hearing loss, the rating schedule establishes eleven auditory acuity levels, designated from level I for essentially normal acuity, through level XI for profound deafness. Table VI is used to determine the Roman numeric designation, based on test results consisting of puretone thresholds and Maryland CNC test speech discrimination scores. The numeric designations are then applied to Table VII to determine the appropriate rating for hearing impairment. Id. Where there is an exceptional pattern of hearing impairment, a rating based on puretone thresholds alone may be assigned (Table VIA). This alternative method for rating hearing loss disability may be applied if the puretone thresholds at 1000, 2000, 3000, and 4000 Hertz are all at 55 decibels or higher, or if the puretone threshold at 1000 Hertz is 30 or less and at 2000 Hertz is 70 or more. 38 C.F.R. § 4.86. Each ear is to be evaluated separately under this part of the regulations. Ratings for hearing impairment are derived by a mechanical application of the rating schedule to the numeric designations assigned after audiometric evaluations are rendered. Lendenmann v. Principi, 3 Vet. App. 345 (1992). The Board’s review shows that VA treatment records are silent for audiometric testing or treatment for the Veteran’s hearing loss disability. October 2015 government treatment records noted that the Veteran did not report any change in his hearing loss and that there was no change from his October 2014 audiogram. The audiogram shows that puretone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 25 35 50 60 60 LEFT 30 30 45 50 60 The average puretone threshold was 46 decibels in the right ear and 43 decibels in the left ear. The records show that speech audiometry was conducted and showed speech recognition ability of 80 percent in the right ear and 92 percent, however the report shows that the test was conducted using the NU-6 word list rather than the Maryland CNC test, and it is therefore inadequate for rating purposes. Subsequent June 2016 treatment records noted that the Veteran reported chronic tinnitus but did not report significant change in hearing. At the July 2016 VA audiological examination for compensation purposes, puretone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 30 40 50 55 70 LEFT 35 35 60 55 60 The average puretone threshold was 53.75 decibels in the right ear and 52.5 decibels in the left ear. Speech audiometry conducted with the Maryland CNC test revealed speech recognition ability of 68 percent bilaterally. The Veteran was diagnosed with bilateral sensorineural hearing loss. The examiner noted the Veteran’s reports that he could not understand the television and his family complained about the volume he used. At the March 2017 VA audiological examination for compensation purposes, puretone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 25 35 45 50 50 LEFT 25 25 45 50 50 The average puretone threshold was 45 decibels in the right ear and 42.5 decibels in the left ear. Speech audiometry conducted with the Maryland CNC test revealed speech recognition ability of 80 percent in the right ear and 76 percent in the left ear. The Veteran was diagnosed with bilateral sensorineural hearing loss. The examiner noted the Veteran’s reports that he could not understand the television and his family complained about the volume he used. At the September 2020 VA audiological examination for compensation purposes, puretone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 35 35 65 65 70 LEFT 50 45 65 75 70 The average puretone threshold was 58.75 decibels in the right ear and 63.75 decibels in the left ear. Speech audiometry conducted with the Maryland CNC test revealed speech recognition ability of 78 percent in the right ear and 86 percent in the left ear. The Veteran was diagnosed with bilateral sensorineural hearing loss. The examiner noted the Veteran’s reports that he could barely hear, could not hear his wife, and had to keep asking people to repeat themselves. At the outset, the Board finds that the VA examinations are adequate for appellate review. There is no evidence that the examiners were not competent or credible, and as the reports are based on the Veteran’s statements, in-person examinations and the examiners’ observations, the Board finds them entitled to significant probative weight. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302–05 (2008). At the April 2019 hearing, the Veteran reported that his hearing had gotten worse and he had a hard time hearing people. The Board notes that the Veteran is competent to report his difficulty hearing. Moreover, the undersigned has had the opportunity to observe the Veteran and finds him to be credible. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff’d per curiam, 78 F.3d 604 (Fed. Cir. 1996). Applying the foregoing evidence to the rating criteria, the Veteran’s right ear is assigned at worst a Level V designation and the left ear is assigned at worst a Level IV designation under Table VI. These categories correspond with a 10 percent disability rating under Table VII. 3 8 C.F.R. § 4.85, Diagnostic Code 6100. The Veteran’s hearing loss did not meet the criteria for an exceptional pattern of hearing loss in either ear. 38 C.F.R. § 4.86 (a)(b). Accordingly, the Board will not use Table VIA in its analysis. As noted above, the October 2015 audiological test results shown in the Veteran’s VA treatment records are not adequate for review, however for comparison the Board notes that they show a hearing acuity of a Level III hearing acuity in the right ear and a Level I hearing acuity in the left ear, and rating on the basis of those results would provide no benefit to the Veteran. The VA examinations and the April 2019 Board hearing show that the Veteran reported trouble hearing the television and his wife and that he also had problems hearing other people and had to ask them to repeat themselves. 38 C.F.R. § 4.10; Martinak v. Nicholson, 21 Vet. App. 447 (2007). 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 acuity and clarity, which is what is contemplated in the rating assigned. See Rossy v. Shulkin, 29 Vet. App. 142, 145 (2017). The Veteran is competent to report his difficulty hearing. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Barr v. Nicholson, 21 Vet. App. 303, 310 (2007); and 38 C.F.R. § 3.159 (a)(2) (2017). Nevertheless, as a layperson, without the appropriate medical training and expertise, his statements are not competent evidence to provide a probative opinion on a medical matter, especially the severity of his bilateral hearing loss disability in terms of the applicable rating criteria. Rather, this necessarily requires appropriate medical findings regarding the extent and nature of his bilateral hearing loss, including audiometric testing for puretone thresholds. As indicated above, rating a hearing loss disability involves the mechanical application of rating criteria to the results of specified audiometric studies. The probative evidence does not show the Veteran’s hearing loss has ever reached the severity associated with a disability rating in excess of 10 percent disabling during the appeal period. Entitlement to a rating in excess of 10 percent for a bilateral hearing loss disability must therefore be denied. REASONS FOR REMAND 1. Entitlement to service connection for kidney disease, to include as due to herbicide agent exposure is remanded. The April 2019 Board decision requested a new VA examination regarding the nature and etiology of the Veteran’s kidney disability, which he contends is due to herbicide agent exposure in service. A December 2020 VA Memorandum conceded herbicide agent exposure. An October 2020 VA examination diagnosed chronic renal disease but found that it was not due to service. As a rationale, the examiner stated that kidney disease was not included in the diseases associated with agent orange. The examiner also stated that the Veteran had diagnoses of hypertension and gout and that they were likely the main causative risk factors. The Board finds that the October 2020 VA opinion is inadequate. First, regarding the Veteran’s conceded herbicide agent exposure, the examiner only stated that it was not “included” in diseases associated with Agent Orange. This rationale is essentially based on the fact that chronic renal disease is not listed among the diseases for which presumptive service connection based on herbicide agent exposure is available. The United States Court of Appeals for Veterans Claims has held, in the context of an opinion considering the issue of herbicide agent exposure, that “a medical nexus opinion finding a condition is not related to service because the condition is not entitled to presumptive service connection, without clearly considering direct service connection, is inadequate on its face.” See Stefl v. Nicholson, 21 Vet. App. 120 (2007). The opinion is also inadequate as the examiner stated that hypertension and gout were likely the cause of the Veteran’s disability but did not provide any basis for that conclusion. A medical examination report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. See Nieves- Rodriguez v. Peake, 22 Vet. App. 295 (2008). Remand for a new opinion is therefore required 2. Entitlement to service connection for a skin disability, to include as due to herbicide agent exposure is remanded. The April 2019 Board decision requested new examinations to determine the nature and etiology of the Veteran’s skin disability. At the April 2019 Board hearing, the Veteran contended that it was due to herbicide agent exposure. As noted above, herbicide agent exposure has been conceded. An October 2020 VA examination diagnosed dermatitis but found it was not due to service. As a rationale, the examiner stated that there were no medical records to show that the Veteran had any skin condition in service, and that it was only noted in 2016. The Board notes that this opinion did not address the Veteran’s conceded herbicide agent exposure and remand for a new opinion is therefore required. The Board also notes that the opinion is explicitly based on a lack of “medical records” showing skin problems in service and prior to 2016, however symptoms such as skin rash are lay-observable symptoms and the Veteran is competent to report their onset and persistence. Upon remand, the opinion should clearly consider the competent lay evidence of record. 3. Entitlement to service connection for rhinitis The April 2019 Board decision requested a new examination to determine the nature and etiology of the Veteran’s rhinitis. An October 2020 VA examination diagnosed allergic rhinitis but found that it was not due to service. As a rationale, the examiner stated that there was one episode of rhinitis in the medical records from 1976, but that there were “no other medical records” to show chronic/recurrent rhinitis, including the 2016 Agent Orange registry. The Board notes, however, that the record contained July 2006 government treatment records noting headaches, sinus pain and a history of allergic rhinitis and October 2012 treatment records with a diagnosis of allergic rhinitis. A medical examination, as this one, that is based on an inaccurate factual premise is inadequate. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993). A new examination and opinion—based on full review of the record and supported by stated rationale—is needed to fairly resolve the issue on appeal. See 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. 4. Entitlement to service connection for acute pharyngitis is remanded. The April 2019 Board decision requested a new examination to determine the nature and etiology of the Veteran’s acute pharyngitis. An October 2020 VA examination did not diagnose pharyngitis as there were no findings, signs, or symptoms to support a diagnosis. The examiner also opined that acute pharyngitis was not incurred in service, stating as a rationale that there was one episode of rhinitis/URI in 1976 and then “no other medical records” showed pharyngitis. The Board notes, however, that July 1958 service treatment records noted a gradually developing sore throat and diagnosed acute pharyngitis, January 2009 government treatment records showed reports of a sore throat and a diagnosis of pharyngitis and September 2009 government treatment records listed pharyngitis among the Veteran’s chronic problems. A medical examination, as this one, that is based on an inaccurate factual premise is inadequate. See Reonal, 5 Vet. App. at 461. A new examination and opinion—based on full review of the record and supported by stated rationale—is needed to fairly resolve the issue on appeal. See 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. The Board also notes that the opinion is silent for any discussion of lay evidence regarding the onset of and persistence of pharyngitis and the examiner explicitly based the opinion on a lack of medical records showing pharyngitis. The Veteran is competent to report the onset and persistence of lay observable symptoms like a sore throat and lay evidence regarding his symptoms should be clearly considered and discussed upon remand. The matters are REMANDED for the following action: 1. Schedule the Veteran for an appropriate VA examination, to determine the nature and etiology of the Veteran’s kidney and skin disabilities. The examiner should review the file and provide a complete rationale for all opinions expressed. For any current kidney and skin disability found to be diagnosed, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that any such disability is related to the Veteran’s active service, to include the Veteran’s conceded exposure to herbicide agents. The examiner is advised that the fact that a VA presumption has not been established for a disability is not dispositive of the issue of nexus and consideration must still be given to the exposure. In providing the opinion, the examiner should consider and discuss any lay statements of record, to include the Veteran’s statements regarding the onset and persistence of his symptoms. 2. Schedule the Veteran for an appropriate VA examination, to determine the etiology of the Veteran’s allergic rhinitis. The examiner should review the file and provide a complete rationale for all opinions expressed. The examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s allergic rhinitis is related to the active service. In providing the opinion, the examiner should consider and discuss any lay statements of record, to include the Veteran’s statements regarding the onset and persistence of his symptoms. The examiner is advised that competent lay statements should not be disregarded merely because they are unaccompanied by contemporaneous medical evidence. 3. Schedule the Veteran for an appropriate VA examination, to determine the nature and etiology of the Veteran’s acute pharyngitis. The examiner should address whether the Veteran has had an acute pharyngitis disability at any point during the period on appeal. The examiner should review the file and provide a complete rationale for all opinions expressed. For any current disability of acute pharyngitis found to be diagnosed during the period on appeal, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that it is related to the Veteran’s active service. The opinion should address 1958 service treatment records showing a diagnosis of acute pharyngitis and the January 2009 diagnosis of pharyngitis. In providing the opinion, the examiner should consider and discuss any lay statements of record, to include the Veteran’s statements regarding the onset and persistence of his symptoms. The examiner is advised that competent lay statements should not be disregarded merely because they are unaccompanied by contemporaneous medical evidence. 4. If upon completion of the above action the appeal remains denied, the case should be returned to the Board after compliance with appellate procedures. E. I. VELEZ Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Arnold 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.