Citation Nr: 21021728 Decision Date: 04/13/21 Archive Date: 04/13/21 DOCKET NO. 15-06 844 DATE: April 13, 2021 ORDER Entitlement to an initial compensable disability rating for a service-connected bilateral hearing loss disability is denied. REMANDED Entitlement to service connection for testicular cancer is remanded. Entitlement to a total rating based upon individual unemployability (TDIU) due to service-connected disabilities is remanded. FINDING OF FACT The probative medical evidence of record demonstrates that throughout the appeal period the Veteran’s hearing loss has manifested in no worse than Level I acuity in the right ear and no worse than Level I acuity in the left ear. CONCLUSION OF LAW The criteria for a compensable rating for hearing loss of the bilateral ears have not been satisfied. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.85, 4.86. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served in the United States Navy from December 1965 to October 1969, with a period of in-country service in the Republic of Vietnam. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a July 2013 rating decisions. The July 2013 rating decision granted service connection for bilateral hearing loss at a noncompensable rate effective August 22, 2011. The rating decision also denied entitlement to service connection for testicular cancer, to include as due to herbicide exposure. These matters were most recently before the Board in March 2019, at which time the Board remanded the issues for further development. Entitlement to a compensable disability rating for a service-connected bilateral hearing loss disability is denied. Disability ratings are determined by the criteria set forth in the VA Schedule for Rating Disabilities and are intended to represent the average impairment of earning capacity resulting from the disability. 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 rating 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. It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21. All benefit of the doubt will be resolved in the Veteran’s favor. 38 C.F.R. § 4.3. Ratings for hearing loss range from noncompensable to 100 percent based on organic impairment of hearing acuity as measured by the results of speech discrimination tests combined with the average hearing threshold levels as measured by pure tone audiometry tests in the frequencies 1000, 2000, 3000, and 4000 cycles per second. To rate the degree of disability for service-connected hearing loss, the Rating Schedule has established eleven auditory acuity levels, designated from Level I, for essentially normal acuity, through Level XI, for profound deafness. 38 C.F.R. § 4.85 (h), Table VI. In order to establish entitlement to a compensable rating for hearing loss, it must be shown that certain minimum levels of the combination of the percentage of speech discrimination loss and average pure tone decibel loss are met. The assignment of disability ratings for hearing impairment is derived by a mechanical application of the Rating Schedule to the numeric designations assigned after audiometric evaluations are rendered. Lendenman, 3 Vet. App. at 349. As set out in the Rating Schedule, the results of controlled speech discrimination tests (Maryland CNC) and pure tone audiometry tests are charted on Table VI, or Table VIA in exceptional cases as described in 38 C.F.R. § 4.86, and Table VII. 38 C.F.R. § 4.85. An exceptional pattern of hearing loss occurs when the pure tone threshold at 1000, 2000, 3000, and 4000 Hertz is 55 decibels or more, or when the pure tone threshold is 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hertz. 38 C.F.R. § 4.86. Specifically, when the pure tone threshold is 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hertz, the Roman numeral designation for hearing impairment is determined from either Table VI or Table VIA, whichever results in the higher numerical. 38 C.F.R. § 4.86 (b). That numeral will then be elevated to the next higher Roman numeral, and then each ear will be evaluated separately. Id. The United States Court of Appeals for Veterans Claims (Court) held that in addition to dictating objective test results, a VA audiologist must fully describe the functional effects caused by a hearing disability in his or her final report. Martinak v. Nicholson, 21 Vet. App. 447, 455 (2007). The Board must determine whether the weight of the evidence supports each claim or is in relative equipoise, with the appellant prevailing in either event. However, if the weight of the evidence is against the appellant’s claim, the claim must be denied. 38 U.S.C. § 5107 (b); 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). In this case, service connection for hearing loss of the bilateral ears was established by a July 2013 rating decision, and the Veteran was assigned a noncompensable disability rating. The Veteran’s hearing loss disability of the bilateral ears was rated in accordance with 38 C.F.R. § 4.85, Diagnostic Code 6100. At his June 2013 VA audiological evaluation, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 10 15 10 35 50 LEFT 20 20 45 45 55 Adding the sums of the Hertz levels from 1000-4000 and dividing by four results in an average pure tone threshold of 36 in the right ear and 41 in the left ear. The June 2013 VA examiner reported speech recognition scores of 100 percent in the bilateral ears and indicated that the use of speech discrimination score was appropriate for the Veteran. 38 C.F.R. § 4.85. Under 38 C.F.R. § 4.85 and Table VI, the levels of hearing impairment based on the Veteran’s pure tone threshold average and speech discrimination score of both the left and right ears are assigned a numeric designation of Level I. Those levels, in turn, warrant a noncompensable rating under Table VII. At his July 2016 VA audiological evaluation, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 10 15 25 45 65 LEFT 20 20 45 50 65 Adding the sums of the Hertz levels from 1000-4000 and dividing by four results in an average pure tone threshold of 45 in the left ear and 38 in the right ear. The July 2016 VA examiner reported speech recognition scores of 98 percent in the left ear and 94 percent in the right ear and indicated that the use of the speech discrimination test was appropriate for the Veteran. 38 C.F.R. § 4.85. Under 38 C.F.R. § 4.85 and Table VI, the levels of hearing impairment based on the Veteran’s pure tone threshold average and speech discrimination score of both the left and right ears are assigned a numeric designation of Level I. Those levels, in turn, warrant a noncompensable rating under Table VII. The Board finds the July 2013 and July 2016 VA audiological evaluations to be competent and credible evidence in measuring the current level of severity of the Veteran’s bilateral hearing impairment. The Veteran contends that he has had hearing loss for many years that has gotten progressively worse and that he has a history of noise exposure being in the service for years. He contends that an explosive detonated to his left side when he was younger. See August 2016 private treatment records. The record indicates that, during a June 2019 hearing re-evaluation and hearing aid programming appointment, he reported that his last hearing evaluation was on September 1, 2016, and he denied any significant change in hearing since then. See June 2019 VA treatment records. The Board in no way calls into question the Veteran’s contentions that his hearing loss has worsened. The Board notes that lay testimony is competent to establish the presence of observable symptomatology. See Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). However, as discussed above, hearing loss is evaluated using a mechanical application of the rating criteria to certified test results. The objective results upon audiometric testing do not demonstrate hearing loss of bilateral ears severe enough to warrant the assignment of a compensable rating. Additionally, the Board has considered the functional impact of the Veteran’s bilateral hearing loss disability, which the Veteran described as “I am tone deaf. My wife is tired of me saying ‘what?’” See July 2016 VA audiological evaluation. The Court has specifically held that the schedular criteria for rating hearing loss contemplates the functional effects of difficulty hearing and understanding speech, such as those reported by the Veteran. Doucette v. Shulkin, 28 Vet. App. 366, 369-370 (2017). The Board acknowledges that the Veteran challenges the adequacy of the July 2016 VA examination, contending that the examination did not adequately capture the extent of his hearing loss given that hearing was tested in a sound-controlled room. See March 2021 Appellate Brief. However, the Board disagrees. VA’s policy of conducting audiometric testing in a sound-controlled room, which is designed to obtain the necessary information for the full and accurate application of the hearing loss rating schedule, has been upheld by the Court. See Martinak v. Nicholson, 21 Vet. App. 447, 454 (2007). The preponderance of the evidence is against the Veteran’s claim for a compensable rating for a hearing loss disability of the bilateral ears. Therefore, the benefit of the doubt rule does not apply, and the claim must be denied. REASONS FOR REMAND 1. Entitlement to service connection for testicular cancer is remanded. With respect to his claim for service connection for testicular cancer, the Veteran was afforded a VA examination in September 2020 during which the VA examiner noted the Veteran’s diagnosis of testicular cancer. As a result of the examination, the VA examiner opined that the Veteran’s testicular cancer was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. He explained that it is documented the Veteran has a history of atrophic right testicle, which is considered a risk factor for testicular cancer, and herbicide exposure is not a known cause or risk factor for testicular cancer. He concluded that the Veteran’s testicular cancer is less likely than not (less than 50 percent probability) caused by herbicide exposure or events while on active duty service. The Veteran, through his representative, additionally contends that his testicular cancer may be secondary to his service-connected prostate cancer. See March 2021 Appellate Brief. The Board cannot make a fully-informed decision on this issue because no VA examiner has opined whether the Veteran’s testicular cancer is proximately due to or aggravated beyond its natural progression by his prostate cancer, for which the Veteran is service connected. Therefore, the Board will remand for an opinion that considers whether the Veteran’s testicular cancer is secondary to his service-connected prostate cancer. 2. Entitlement to TDIU is remanded. In his August 2011 Application for Compensation or Pension, the Veteran stated that because of his “cancers” he is unable to work. Therefore, as a decision on the remanded issue of service connection for testicular cancer could significant impact a decision on the issue of TDIU, his claim for TDIU is deemed inextricably intertwined with the service connection claim being remanded and, as such, it must also be remanded. Harris v. Derwinski, 1 Vet. App. 180 (1991); Tyrues v. Shinseki, 23 Vet. App. 166, 178 (2009). The matters are REMANDED for the following action: 1. Obtain any outstanding VA treatment records and associate them with the claims file. 2. Request that the Veteran submit a TDIU application (VA Form 21-8940), or other detailed information regarding employment and income history for the years in which he claims to have been precluded from maintaining gainful employment due to a service-connected disability or disabilities. Invite the Veteran to submit additional supporting documentation including statements from his former employers. For any employment that the Veteran considers to be marginal as due to a protected work environment, request that the Veteran provide a detailed explanation as to what factors characterize the work environment as protected. 3. Obtain an addendum opinion from an appropriate clinician addressing the etiology of the Veteran’s testicular cancer. A copy of the claims file should be sent to and reviewed by the reviewing clinician. Upon review of the file, the reviewing clinician should respond to each of the following: (a) Is it at least as likely as not (a 50 percent probability or higher) that the Veteran’s testicular cancer is proximately due to the Veteran’s prostate cancer? (b) Is it at least as likely as not (a 50 percent probability or higher) that the Veteran’s testicular cancer was aggravated (any worsening beyond normal progression of the disability) by the Veteran’s prostate cancer? In offering any opinion, the examiner must consider the full record, to include the lay statements of record, and the opinion should reflect such consideration. A complete rationale should be given for all opinions and conclusions expressed. A discussion of the facts and medical principles involved must be provided, and the examiner should fully explain from a medical perspective the conclusion reached. If the reviewing clinician cannot provide a requested opinion without resorting to mere speculation, it must be stated, and the clinician must provide the reasons why an opinion would require speculation. As such, the clinician must explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question. If it is the determination of the opinion provider that an in-person or telehealth examination or interview is required to provide responses to the questions above, such should be scheduled. 4. After completing the above, readjudicate the Veteran’s claims based on the entirety of the evidence. If the benefits on appeal should remain denied, the Veteran and his representative should be issued a supplemental statement of the case and an opportunity to respond. B. G. LeMoine Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board L. Fulmer, 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.