Citation Nr: 21022628 Decision Date: 04/16/21 Archive Date: 04/16/21 DOCKET NO. 17-28 303 DATE: April 16, 2021 ORDER Entitlement to an increased rating in excess of 20 percent for a bilateral hearing loss disability is denied. Entitlement to service connection for a pituitary adenoma is granted. FINDINGS OF FACT 1. Throughout the period on appeal, the Veteran’s hearing impairment was no worse than Level VIII in the left ear and Level III in the right ear. 2. A pituitary adenoma has been shown to be causally related to an in-service injury or disease. CONCLUSIONS OF LAW 1. The criteria for an initial rating in excess of 20 percent for a bilateral hearing loss disability have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.85, Diagnostic Code 6100, 4.86. 2. The criteria for service connection for pituitary cancer have been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.311. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 5, 1946 to June 7, 1955 and from June 20, 1955 to August 31, 1969. The Veteran passed away in November 2016, and the appellant has been substituted as the claimant in the current appeal as the Veteran’s surviving spouse. 38 U.S.C. § 101(3). This matter is before the Board of Veterans’ Appeals (Board) on appeal from a rating decision issued in November 2015 by a Department of Veterans Affairs (VA) Regional Office (RO). The appellant and additional witnesses testified at a hearing before the undersigned Veterans Law Judge (VLJ) in January 2021. A transcript of the hearing is of record. Following the hearing, the record was held open for a period of 60 days to allow for the submission of additional evidence. In February 2021 the appellant wrote in and requested a further extension in addition to the 60 days already granted in order to attempt to obtain a nexus opinion concerning the claimed pituitary cancer. In light of the fully favorable decision as to the question of service connection for pituitary cancer, the Board finds that there is no prejudice to the appellant in proceeding with the adjudication of that issue without granting the additional requested extension. Further, the appellant made clear that the extension request was so that she could obtain further evidence in support of the service connection claim, not the increased rating claim also on appeal. As such, the Board also finds there is no prejudice in proceeding with the adjudication of the increased rating claim at this time. Increased Ratings Disability evaluations are determined by the application of the facts presented to VA’s Schedule for Rating Disabilities (Rating Schedule) at 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. In evaluating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary importance. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Nevertheless, the Board acknowledges 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). The analysis in the following decision is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods. If the evidence for and against a claim is in equipoise, the claim will be granted. 38 C.F.R. § 4.3. A claim will be denied only if the preponderance of the evidence is against the claim. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). Any reasonable doubt regarding the degree of disability should be resolved in favor of the claimant. 38 C.F.R. § 4.3. 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 evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. 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). An examination for hearing impairment must be conducted by a state-licensed audiologist and must include a controlled speech discrimination test (Maryland CNC) and a puretone audiometry test. 38 C.F.R. § 4.85. The rating schedule establishes 11 auditory hearing acuity levels based upon average puretone thresholds and speech discrimination. 38 C.F.R. § 4.85. “Puretone threshold average” as used in Tables VI and VIa is the sum of the puretone thresholds at 1000, 2000, 3000 and 4000 Hertz and divided by four. This average is used in all cases (including those of § 4.86) to determine a Roman numeral designation from Tables VI and VIa. 38 C.F.R. § 4.85(d). Table VI, “Numeric Designation of Hearing Impairment Based on Puretone Threshold Average and Speech Discrimination,” is used to determine a Roman numeral designation (I through XI) for hearing impairment based on a combination of the percent of speech discrimination (horizontal rows) and the puretone threshold average (vertical columns). The Roman numeral designation is located at the point where the row and column intersect. 38 C.F.R. § 4.85(b). Table VIa, “Numeric Designation of Hearing Impairment Based Only on Puretone Threshold Average,” is used to determine a Roman numeral designation (I through XI) for hearing impairment based only on puretone threshold average. Table VIa is used when the examiner certifies that the use of the speech discrimination test is not appropriate due to language difficulties, inconsistent speech discrimination scores, etc., or when indicated under the provisions of § 4.86. 38 C.F.R. § 4.85(c). Table VII, “Percentage Evaluations of Hearing Impairment,” is used to determine the percentage evaluation by combining the Roman numeral designations for hearing impairment in each ear. The horizontal rows represent the ear having better hearing and the vertical columns represent the ear having the poorer hearing. The percentage evaluation is located at the point where the row and the column intersect. 38 C.F.R. § 4.85(e). Special provisions apply in instances of exceptional hearing loss. See 38 C.F.R. § 4.86. When the puretone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) are all 55 decibels or more, the adjudicator must determine the Roman numeral designation for hearing impairment from either Table VI or Table VIa in 38 C.F.R. § 4.85, whichever results in the higher numeral. 38 C.F.R. § 4.86(a). Also, when the puretone 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. That numeral will then be elevated to the next higher Roman numeral. Each ear is evaluated separately. 38 C.F.R. § 4.86(b). 1. Entitlement to an increased rating for a bilateral hearing loss disability The Veteran was provided with a VA audiological examination in October 2015 by a state licensed audiologist. 38 C.F.R. § 4.85(a). The results of the puretone audiometry test were, in pertinent part, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT X 50 65 90 95 LEFT X 60 90 90 95 Based on these results, the average puretone threshold was 75 decibels for the right ear and 83.75 for the left ear. 38 C.F.R. § 4.85(d). Speech recognition scores were 88 percent on the right and 78 percent on the left. The Veteran reported difficulty conversations due to his hearing loss. Martinak v. Nicholson, 21 Vet. App. 447, 455 (2007). Applying these values to Table VI, the result is a Roman Numeral III designation for the right ear and V for the left. As the Veteran has an exceptional pattern of hearing loss in the left ear, Table VIa may also be used to determine the appropriate Roman Numeral designation. Application of the Veteran’s scores to Table VIa results in a Roman Numeral VIII left ear. As the Roman Numeral value derived from Table VIz is higher, the Board will use that value for the left ear to determine the Veteran’s disability rating. Based on the evidence outlined above, when the Roman Numeral III designation for the right ear and Roman Numeral VIII designation for the left ear are mechanically applied to Table VII, the result is a 20 percent rating. 38 C.F.R. § 4.85; Lendenmann, 3 Vet. App. 345. The Board has considered the Veteran’s lay statements, in which he generally contended that his hearing is worse than currently rated. However, as noted above, rating a hearing loss disability involves the mechanical application of rating criteria to the results of specified audiometric studies. Here, the objective medical evidence of record consists of the October 2015 VA examination, which objectively shows that the Veteran’s hearing loss does not rise to the level of a rating in excess of 20 percent, even when considering that the Veteran had an exceptional pattern of hearing loss in the left ear. The appellant testified that during the October 2015 hearing examination the Veteran had difficulty following instruction due to his dementia and his difficulty hearing, and therefore the test results are not accurate representations of the Veteran’s disability level. However, the October 2015 examiner did not in any way indicate that the Veteran had any difficulty following instructions, or that the testing results were in any way unreliable. Indeed, the examiner specifically noted that the testing results were valid for rating purposes. As there is no evidence that the October 2015 test results were invalid, the Board finds that they may be used for rating purposes in this case. For these reasons, the claim for an increased rating for hearing loss is denied. 38 C.F.R. §§ 4.3, 4.7, 4.85, Diagnostic Code 6100. All potentially applicable codes have been considered, and there is no basis to assign an evaluation in excess of the currently assigned rating for the hearing loss. Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991). No other issues have been raised by the Veteran during his life or the appellant and her representative, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 369–70 (2017). As the preponderance of the evidence is against an increased rating in excess of 20 percent for a hearing loss disability, the benefit-of-the-doubt doctrine is inapplicable. 38 C.F.R. § 4.3. For these reasons, the claim is denied. Service Connection Generally, to establish service connection a Veteran 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.” Davidson v. Shinseki, 581 F.3d 1313, 1315–16 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). Certain diseases may be presumed to be causally related to a Veteran’s service if they become manifest in a radiation-exposed veteran. 38 C.F.R. § 3.309(d). A radiation-exposed veteran is a Veteran who while on active duty participated in a radiation-risk activity, which includes onsite participation in a test involving the atmospheric detonation of a nuclear device. 38 C.F.R. § 3.309(d)(3)(i), (ii). Onsite participation means, in relevant part, that the Veteran was present at a test site during the official operational period of an atmospheric nuclear test. 38 C.F.R. § 3.309(d)(3)(iv)(A). For tests conducted by the United States, the term operational period as it applies to this claim means the period from February 18, 1955 through June 10, 1955 for Operation TEAPOT. 38 C.F.R. § 3.309(d)(3)(v)(K). In cases where a radiogenic disease manifested after service but not within a presumptive period considered in 38 C.F.R. § 3.307 or 38 C.F.R. § 3.309, and it is contended that the disease is the result of exposure to ionizing radiation in service, VA is required to obtain a dose estimate concerning the size and nature of the radiation dose or doses. 38 C.F.R. § 3.311. A radiogenic disease is a disease that may be induced by ionizing radiation and includes tumors of the brain and central nervous system as well as any other cancer. 38 C.F.R. § 3.311(b)(2)(xx), (xxiv). Tumors of the brain and central nervous system and all other cancers must manifest five years or more after the claimed radiation exposure. 38 C.F.R. § 3.311(b)(iv). In cases where a Veteran was exposed to ionizing radiation as a result of participation in the atmospheric testing of nuclear weapons, the Veteran subsequently developed a radiogenic disease, and the disease manifested within the applicable time period, the claim must be referred to the Under Secretary for Benefits for further consideration. 38 C.F.R. § 3.311(b), (c). 2. Entitlement to service connection for pituitary cancer Treatment records reflect that the Veteran was diagnosed with a pituitary adenoma in approximately October 2012. Further, a November 2016 VA memorandum notes that the Veteran was confirmed by the Defense Threat Reduction Agency (DTRA) that the Veteran was a participant in Operation TEAPOT. As such, the Veteran is considered to have participated in a radiation risk activity, and therefore is considered to have been a radiation-exposed Veteran. 38 C.F.R. § 3.309(d)(3)(i), (ii), (iv)(A), (v)(K). As such, the dispositive issue is whether the Veteran’s pituitary adenoma was causally related to his exposure to ionizing radiation exposure. Pituitary adenoma is not one of the diseases that is presumed to be causally related to radiation exposure in service. 38 C.F.R. § 3.309(d)(2). However, service connection may still be established on a direct basis, as the Veteran is diagnosed with a radiogenic disease which manifested more than five years after his documented exposure. See Combee v. Brown, 34 F.3d 1039, 1043–44 (Fed. Cir. 1994). VA obtained a dose estimate from the DTRA in October 2016, which stated that the Veteran’s doses from the Veteran’s participation in Operation TEAPOT would not have been more than: (1) 16 rem external gamma dose; (2) 0.5 rem external neutron dose; (3) 0.1 rem external committed dose to the brain (alpha); (4) 0.1 rem external committed dose to the brain (beta + gamma); (5) 0.1 rem internal committed dose for his pituitary adenoma (alpha); and, (6) 7 rem internal committed dose for his pituitary adenoma. 38 C.F.R. § 3.311(a). VA then obtained an advisory opinion in January 2017. 38 C.F.R. § 3.311(c). The opinion noted the Veteran’s participation in Operation TEAPOT and the dose estimate of record. However, the opinion then only addressed whether the Veteran’s separately diagnosed dementia was the result of the radiation exposure, and did not address the claimed pituitary adenoma. Another February 2017 opinion also noted the dose estimates, but again only addressed the separately claimed dementia and not the Veteran’s pituitary adenoma. As neither opinion addressed the diagnosed pituitary adenoma, the Board finds that they are of no probative weight. In support of the current appeal, the Veteran submitted June 2015 and July 2015 letters from private providers. The June 2015 letter noted that while difficult to prove causality, it is known that central nervous system tumors are associated with radiation exposure. The professional further stated that while pituitary tumors are less common, instances of a relationship to radiation exposure are present in literature. The provider then stated that it was certainly possible that the pituitary adenoma could have been due to radiation exposure, and included a citation to an article discussing radiation exposure and the development of pituitary tumors. In the subsequent July 2015 letter, a private provider stated that it was conceivable and probably accurate to state that the Veteran’s radiation exposure caused the pituitary tumor. The provider noted that ionizing and non-ionizing radiation commonly cause tumors of the central nervous system and further cited to two articles discussing the development of pituitary tumors in individuals exposed to nuclear bomb radiation. There is no evidence that the private providers who drafted the letters were either not competent or not credible, and further the opinions were supported by reasoned rationales that cited to medical literature concerning radiation and central nervous system tumors generally and pituitary tumors specifically. As such, the Board finds the letters are entitled to significant probative weight as to the presence of a nexus. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). No other medical opinions are of record. Based on the foregoing, and in the interest of giving the appellant the full benefit-of-the-doubt, the Board finds that the evidence shows it is at least as likely as not that the Veteran’s pituitary adenoma is causally related to his in-service radiation exposure. Neither the January 2017 or February 2017 advisory opinions addressed the pituitary adenoma, and therefore are entitled to no weight. Conversely, the letters from the private providers stated that based on medical literature it was likely correct to state that the Veteran’s pituitary adenoma was causally related to his radiation exposure from his participation in Operation TEAPOT. As such, service connection for a pituitary adenoma is granted on a direct basis. 38 C.F.R. §§ 3.102, 3.303. LESLEY A. REIN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Wendell, 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.