Citation Nr: 21024367 Decision Date: 04/22/21 Archive Date: 04/22/21 DOCKET NO. 16-23 586 DATE: April 22, 2021 ORDER Entitlement to an initial compensable rating for a bilateral hearing loss disability is denied. Entitlement to service connection for chronic obstructive pulmonary disease (COPD), to include as due to herbicide agent exposure, is denied. REMANDED Entitlement to service connection for emphysema, 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. FINDINGS OF FACT 1. Throughout the period on appeal, the Veteran’s hearing impairment has been no worse than Level II in the left ear and Level I in the right ear. 2. COPD is not shown to be causally related to an in-service injury or disease, to include herbicide agent exposure. CONCLUSIONS OF LAW 1. The criteria for an initial compensable rating 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, 4.86, Diagnostic Code 6100. 2. The criteria for service connection for COPD have not been met. 38 U.S.C. §§ 1101, 1110, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1969 to March 1976. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a rating decision issued in February 2015 by a Department of Veterans Affairs (VA) Regional Office (RO). The Board remanded the issues on appeal for additional development in October 2018. The RO obtained additional service records in January 2019 and June 2019, verified the Veteran’s herbicide agent exposure in November 2019, and obtained an opinion concerning COPD and a hearing loss examination in December 2019. As such, the directives as to the claims for increased ratings for hearing loss and service connection for COPD have been substantially complied with and the appeal is again properly before the Board. D’Aries v. Peake, 22 Vet. App. 97, 105 (2008); Stegall v. West, 11 Vet. App. 268, 271 (1998). 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 VA audiological examinations in January 2015 and December 2019 by state licensed audiologists. 38 C.F.R. § 4.85(a). The results of the January 2015 puretone audiometry test were, in pertinent part, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT X 20 30 65 65 LEFT X 20 45 65 65 Based on these results, the average puretone threshold was 45 decibels for the right ear and 49 for the left ear. 38 C.F.R. § 4.85(d). Speech recognition scores were 96 percent bilaterally. Applying these values to Table VI, the result is a Roman Numeral I designation for the right and left ears. The Veteran reported difficulty hearing the television and radio, and difficulty understanding conversations. Martinak v. Nicholson, 21 Vet. App. 447, 455 (2007). The results of the December 2019 puretone audiometry test were, in pertinent part, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT X 30 50 65 70 LEFT X 30 55 65 65 Based on these results, the average puretone threshold was 54 for the right and left ears. 38 C.F.R. § 4.85(d). Speech recognition scores were 92 percent on the right and 88 percent on the left. Applying these values to Table VI, the result is a Roman Numeral I designation for the right ear and II for the left. The Veteran reported difficulty hearing the television and difficulty understanding conversations, particularly with background noise. Martinak, 21 Vet. App. at 455. Based on the evidence outlined above, even when using only the worst results, when the Roman Numeral I designation for the right ear and Roman Numeral II designation for the left ear are mechanically applied to Table VII, the result is a noncompensable rating. 38 C.F.R. § 4.85; Lendenmann, 3 Vet. App. 345. None of the results reported in the audiological evaluations display an exceptional pattern of hearing loss. 38 C.F.R. § 4.86(a)–(b). The Board has considered the Veteran’s lay statements, in which he generally contends 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 January 2015 and December 2019 examination reports, which objectively show that the Veteran’s hearing loss does not rise to the level of a compensable rating. The Board further notes that in his notice of disagreement and substantive appeal the Veteran argued that the VA testing results were inaccurate, as the testing was conducted in a soundproof booth and not in public where the Veteran asserted that his hearing is much worse due to background noise. However, hearing loss is assessed based on the severity of the degree of loss and the average economic impairment resulting from that loss. 38 C.F.R. §§ 4.1, 4.85. In this case, the Veteran’s degree of hearing loss was determined by utilizing standard audiological testing and the disability rating was assigned based on the degree of loss present. While the Veteran may find it more difficult to hear in environments where there is additional background noise, this is true of any individual regardless of the presence of hearing loss, and does not establish that his hearing is in fact worse than noted in the examination reports. Ultimately, the Veteran’s current hearing loss is not sufficient to warrant a compensable rating based on the objective testing results of record. For these reasons, entitlement to a compensable rating for a bilateral hearing loss disability 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 Veteran’s hearing loss. Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991). Neither the Veteran nor his representative has raised any other issues, 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 initial compensable rating 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). VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. 38 U.S.C. § 1154(a). Lay 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. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Lay evidence cannot be determined to be not credible merely because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1336–37 (Fed. Cir. 2006). 2. Entitlement to service connection for COPD. VA treatment records reflect that the Veteran is currently diagnosed with COPD. Concerning an in-service injury or disease, the Board notes that there is no evidence that the Veteran was diagnosed with or treated for COPD in service, nor has the Veteran alleged as such. The Veteran’s May 1975 separation examination noted that his respiratory system was normal, and he denied any current or history of chronic or frequent colds, sinusitis, hay fever, asthma, shortness of breath, chronic cough, or any other respiratory symptoms on the corresponding report of medical history. However, a November 2019 VA memorandum confirmed that the Veteran’s unit served in Vietnam between January 1962 and May 1975, and therefore the Veteran is presumed to have been exposure to herbicide agents during service. 38 C.F.R. § 3.307(a)(6)(iii). As such, an in-service injury or disease has been shown in this case. The Board notes that in January 2021 correspondence the Veteran also asserted that his COPD was at least in part due to the cigarettes that he smoked while in service. However, for claims received after June 9, 1998 service connection cannot be granted for a disability as the result of the use of tobacco products during service, which includes the use of cigarettes. 38 C.F.R. § 3.300(a). As such, the Veteran’s tobacco use in service cannot be considered an in-service disease or injury for the purposes of awarding service connection, and thus will not be discussed further. Id. Concerning the presence of a nexus, the Veteran has asserted that his COPD was either caused or aggravated by his herbicide agent exposure in service. However, these assertions are not competent, as providing such an opinion requires medical training and knowledge beyond that which may be expected of a lay person. Jandreau, 492 F.3d 1372; Kahana, 24 Vet. App. at 435. As such, the Veteran’s statements that his COPD is causally related to, or was worsened by, herbicide agent exposure are entitled to no probative weight. VA obtained an opinion concerning the etiology of the Veteran’s COPD in December 2019. The examiner stated that it was less likely than not that the COPD was causally related to the Veteran’s history of herbicide agent exposure. The examiner firs noted that COPD is a chronic inflammatory lung disease that causes obstructed airflow from the lungs. The examiner then explained that the primary risk factors for COPD, and therefore the more likely causes, are smoking or second-hand smoke exposure, as well as exposure to pollution and dust. There is no evidence that the above examiner was either not competent or credible. Further, the examiner supported his opinion with a well-reasoned rationale that identified other more likely causes of the Veteran’s COPD. As such, the Board finds that the opinion is entitled to significant probative weight as to the presence of a nexus. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Treatment records associated with the file reflect that the Veteran has smoked a pack of cigarettes per day for fifty plus years, which was most recently noted in a February 2020 treatment record. An October 2018 letter from the Veteran’s primary care physician noted that the Veteran’s chest x-rays contained evidence of tobacco damage to the Veteran’s lungs, specifically emphysema. An October 2019 treatment record reflects that the Veteran was counselled to stop smoking, but that he had no desire to stop. A March 2020 treatment record noted that the Veteran had COPD associated with smoking. Based on the foregoing, the preponderance of the evidence is against a finding that the Veteran’s COPD is causally related to his service, including exposure to herbicide agents. While the Veteran has asserted that such exposure caused or aggravated his COPD, these statements are not competent and therefore entitled to no probative weight. Conversely, the VA examiner stated that the COPD was less likely than not due to herbicide agent exposure, citing to the fact that one of the primary risk factors for COPD is smoking. The opinion is supported by the treatment records associated with the file, which consistently reflect that the Veteran has smoked a pack of cigarettes a day for over fifty years, and further that the Veteran’s COPD is associated with his smoking history. Moreover, there is no competent evidence to the contrary, nor has the Veteran submitted any competent medical opinion evidence in support of his claim. As the preponderance of the evidence is against a finding of a nexus, service connection for COPD is not warranted on a direct basis. 38 C.F.R. §§ 3.102, 3.303. The preponderance of the evidence weighs against a finding that the Veteran’s COPD is causally related to his service, including exposure to herbicide agents. Since the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable. 38 U.S.C. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55–57 (1990); 38 C.F.R. § 3.102. For these reasons, the claim is denied. REASONS FOR REMAND 1. Entitlement to service connection for emphysema. In its October 2018 remand, the Board requested an opinion concerning the etiology of the Veteran’s emphysema and COPD. VA obtained a medical opinion in December 2019, which as discussed above explained that the COPD was more likely due to his history of smoking, and was less likely than not related to his herbicide agent exposure. However, the opinion in no way addressed or discussed the Veteran’s emphysema. While perhaps true that the COPD opinion is equally applicable to the claim for emphysema as the two disabilities are closely related, the December 2019 examiner did not make that clear in his opinion. As an opinion concerning emphysema specifically was not obtained, the Board finds that there was not substantial compliance with the October 2018 remand directives, and a remand is necessary so that such an opinion may be obtained. Stegall, 11 Vet. App. at 271. 2. Entitlement to service connection for a skin disability. In October 2018, the Board remanded for an opinion to determine whether the Veteran’s current skin disabilities were etiologically related to the pyoderma noted by a physician on the Veteran’s enlistment report of medical history, and if so, whether the skin disability was aggravated beyond its natural progress by service. 38 U.S.C. § 1153; 38 C.F.R. § 3.306. VA obtained the requested opinion concerning pre-existence and aggravation in November 2020. While overall the opinion is unclear as to the etiology of the current skin disabilities, the November 2020 examiner did note that there was no evidence to support a current diagnosis of pyoderma. As such, the examiner clearly opined that the current skin disabilities are not etiologically related to the noted pyoderma on the enlistment report of medical history. As such, the current skin disabilities were not noted at entry, and the Veteran is presumed to have been sound upon enlistment. 38 U.S.C. § 1111; 38 C.F.R. § 3.304. As the Veteran is presumed sound, the dispositive issue is whether the Veteran’s skin disabilities are causally related to his service. VA obtained opinions concerning whether the skin disabilities were due to the Veteran’s service were obtained in December 2019 and November 2020. The December 2019 examiner listed all of the currently diagnosed skin disabilities and common risk factors or causes for each. However, the examiner then simply noted that none of the diagnosed conditions are presumed to be related to herbicide agent exposure, and therefore that the current disabilities were not due to herbicide agent exposure. A medical opinion which relies upon the lack of listing as a presumptive condition, without consideration of direct service connection, is inadequate. Stefl v. Nicholson, 21 Vet. App. 120 (2007). While the examiner generally listed other potential causes for each of the diagnosed disabilities, the examiner in no way indicated which of the identified risk factors, if any, were applicable in the current case, nor do the Veteran’s treatment records clearly reflect that the Veteran has the identified risk factors. As such, the December 2019 opinion is inadequate. VA obtained another opinion in November 2020. While the examiner stated that it was less likely than not that the identified skin disabilities were causally related to service, in support of this conclusion the examiner simply cited to the fact that pyoderma in service was acute and that there was no chronicity of care. The examiner in no way addressed the Veteran’s herbicide agent exposure in service, and further primarily relied on the absence of contemporaneous medical records to support the opinion. Combee v. Brown, 34 F.3d 1039, 1043–44 (Fed. Cir. 1994); Dalton v. Peake, 21 Vet. App. 23 (2007). As such, the November 2020 opinion is also inadequate. Therefore, a remand is necessary so that a new opinion concerning the etiology of the Veteran’s skin disability may be obtained. The matters are REMANDED for the following action: 1. Obtain an addendum opinion from the examiner who provided the December 2019 opinion, or another appropriate medical professional if the examiner is unavailable. The examiner should answer the following: Is it at least as likely as not (a fifty percent probability or greater) that the emphysema is causally related to the Veteran’s active service, including exposure to herbicide agents? Attention is invited to VA treatment records reflecting that the Veteran has smoked a pack of cigarettes a day for fifty plus years. A detailed rationale for the opinion must be provided. The examiner is reminded that the term “as likely as not” does not mean “within the realm of medical possibility,” but rather that the evidence of record is so evenly divided that, in the examiner’s expert opinion, it is as medically sound to find in favor of the proposition as against it. 2. Obtain an addendum opinion from the examiner who provided the December 2019 VA opinions, or another appropriate medical professional if the examiner is unavailable. The examiner should answer the following: Is it at least as likely as not (a fifty percent probability or greater) that the currently diagnosed skin disabilities are causally related to the Veteran’s active service, including herbicide agent exposure? If the examiner believes that in this case other risk factors are the more likely cause of the Veteran’s skin disabilities, the examiner should explain why this is so. The examiner should not rely on the fact that the diagnosed skin disabilities are not presumed to be related to herbicide agent exposure in answering the above question. A detailed rationale for the opinion must be provided. The examiner is reminded that the term “as likely as not” does not mean “within the realm of medical possibility,” but rather that the evidence of record is so evenly divided that, in the examiner’s expert opinion, it is as medically sound to find in favor of the proposition as against it. 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.