Citation Nr: 21024528 Decision Date: 04/23/21 Archive Date: 04/23/21 DOCKET NO. 16-07 707 DATE: April 23, 2021 ORDER A compensable rating for bilateral hearing loss is denied. REMANDED Entitlement to service connection for colon cancer is remanded. Entitlement to service connection for hypertension is remanded. Entitlement to service connection for diabetes mellitus is remanded. Entitlement to service connection for peripheral neuropathy of the right upper extremity is remanded. Entitlement to service connection for peripheral neuropathy of the right lower extremity is remanded. Entitlement to service connection for peripheral neuropathy of the left upper extremity is remanded. Entitlement to service connection for peripheral neuropathy of the left lower extremity is remanded. FINDING OF FACT The Veteran’s bilateral hearing loss was no worse than Level II in the right ear and Level I in the left ear. CONCLUSION OF LAW The criteria are not met for entitlement to a compensable rating for the bilateral (left and right ear) hearing loss. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.85, 4.86, Diagnostic Code 6100. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active military service from February 1970 to July 1974. He died in September 2017. The appellant is his surviving spouse, so widow; she was substituted to process these claims to completion. She recently testified in support of these claims during a “virtual” hearing in January 2021 before the undersigned Veterans Law Judge of the Board. A compensable rating for bilateral hearing loss is denied. The appellant contends the Veteran’s bilateral hearing loss deserved a compensable rating (meaning a rating higher than 0 percent) because of its severity. Evaluations of defective hearing range from 0 percent (noncompensable) to 100 percent based on organic impairment of hearing acuity as measured by the results of a controlled Maryland CNC speech discrimination test together with the average hearing threshold level measured by pure tone audiometry tests in the frequencies of 1000, 2000, 3000, and 4000 cycles per second (Hertz (Hz)). 38 C.F.R. § 4.85, Diagnostic Code 6100. 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). On the authorized audiological evaluation in September 2014, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 20 30 65 70 65 LEFT 20 20 60 75 65 Speech audiometry revealed speech recognition ability of 100 percent in the right ear and of 100 percent in the left ear.   Applying the results to Table VI, the findings yield a numeric designation of Level II hearing loss in the right ear and Level I hearing loss in the left ear. Entering the resulting bilateral numeric designation of Level II for the right ear and Level I for the left ear to 38 C.F.R. § 4.85, Table VII, equates to noncompensable disability rating under Diagnostic Code 6100. An exceptional pattern of hearing impairment under 38 C.F.R. § 4.86 was not shown. On the authorized audiological evaluation in December 2015, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 10 20 45 65 55 LEFT 10 15 45 65 55 Speech audiometry revealed speech recognition ability of 98 percent in the right ear and of 98 percent in the left ear. Applying the results to Table VI, the findings yield a numeric designation of Level I hearing loss in the right ear and Level I hearing loss in the left ear. Entering the resulting bilateral numeric designation of Level I for the right ear and Level I for the left ear to 38 C.F.R. § 4.85, Table VII, equates to noncompensable disability rating under Diagnostic Code 6100. An exceptional pattern of hearing impairment under 38 C.F.R. § 4.86 again was not shown. The Board expressly acknowledges its consideration of the lay evidence of record when adjudicating this claim, including the Veteran’s reported difficulty hearing when he would listen to his spouse and daughter. He was competent to report difficulty with his hearing, and so, too, is his spouse, like when testifying concerning this during her recent January 2021 hearing before this Board.   However, disability ratings for hearing loss are derived from a mechanical (meaning nondiscretionary) application of the Rating Schedule to the numeric designations resulting from audiometric testing. Lendenmann v. Principi, 3 Vet. App. 345 (1992). Moreover, the rating criteria contemplate speech reception thresholds and ability to hear spoken words on Maryland CNC testing. The functional impact described is precisely contemplated by the rating criteria. Doucette v. Shulkin, 28 Vet. App. 366 (2017). The main complaint was reduced hearing acuity and clarity, which is exactly what is contemplated in the rating assigned. See Rossy v. Shulkin, 29 Vet. App. 142, 145 (2017). Accordingly, the preponderance of the evidence is against this claim of entitlement to a compensable rating for the bilateral hearing loss. There is no other evidence to reflect more severe audiometry results. In reaching this conclusion, the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the claim, this doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND 1. Entitlement to service connection for colon cancer is remanded. 2. Entitlement to service connection for hypertension is remanded. 3. Entitlement to service connection for diabetes mellitus is remanded. 4. Entitlement to service connection for peripheral neuropathy of the right upper extremity is remanded. 5. Entitlement to service connection for peripheral neuropathy of the right lower extremity is remanded. 6. Entitlement to service connection for peripheral neuropathy of the left upper extremity is remanded. 7. Entitlement to service connection for peripheral neuropathy of the left lower extremity is remanded. The underlying basis of these claims is that the Veteran’s colon cancer, hypertension, diabetes mellitus, and bilateral upper and lower extremity peripheral neuropathy were owing to his exposure to toxins while stationed at Camp Pendleton, California. The Board held the record open for an additional 60 days following the January 2021 hearing to allow the Widow-Appellant time to obtain and submit additional supporting evidence. And, to this end, in support of these claims, in March 2021 a private physician’s opinion was submitted relating the Veteran’s disabilities to persistent exposure to pollutants from incomplete combustion in burn pits and benzene, tricholoethylene xylene methyl ketones and other toxicants – to include beryllium, asbestos, vinyl chloride, and arsenic. This commenting physician explained how the toxins infiltrate the body and cause disease. The Veteran’s attorney also submitted evidence showing Camp Pendleton was determined to have nine areas of environmental contamination and the actions that were taken towards decontamination. The record also includes the contention that the Veteran was exposed to herbicides while stationed at Camp Pendleton by way of working onboard ships that had returned from Vietnam and that had carried herbicides. It remains unclear from the record, however, whether the Veteran was exposed to the chemicals mentioned by the March 2021 private physician or herbicides while stationed at Camp Pendleton from May 1970 to May 1971 and from March 1974 to June 1974. The degree of exposure also is unclear from the record. Thus, further development is necessary to properly adjudicate these remaining claims.   Accordingly, these claims are REMANDED for the following action: 1. Contact the appropriate source to determine the likelihood the Veteran was exposed to: i) Herbicides from ships returning from Vietnam while he was stationed at Camp Pendleton from May 1970 to May 1971 and from March 1974 to June 1974 (herbicides include 2,4-D; 2,4,5-T and its contaminant TCDD; cacodylic acid; and picloram as codified by 38 C.F.R. § 3.307(a)(6)) and/or, ii) Burn pits and benzene, tricholoethylene xylene methyl ketones and other toxicants, including beryllium, asbestos, vinyl chloride, and arsenic, while stationed at Camp Pendleton from May 1970 to May 1971 and from March 1974 to June 1974. iii) If the Veteran was exposed to any of the above chemical(s) during his service, provide information as to the type of exposure, the degree of exposure, and any other pertinent information. 2. Following that development, forward the file to an appropriate VA examiner for additional medical comment concerning whether any of the conditions being claimed is attributable to those alleged exposures in service. To this end, the examiner is asked to indicate whether the Veteran’s colon cancer, hypertension, diabetes mellitus, and/or bilateral upper and lower extremity peripheral neuropathy were at least as likely as not related to exposure to toxins or herbicides while in service.   To assist in making this determination, the examiner must be provided the information obtained from remand directive #1 concerning whether the Veteran was exposed to burn pits and benzene, tricholoethylene xylene methyl ketones and other toxicants - including beryllium, asbestos, vinyl chloride, and arsenic, or herbicides while in service and, particularly, while stationed at Camp Pendleton from May 1970 to May 1971 and from March 1974 to June 1974. Consequently, it is essential the examiner have access to all pertinent information regarding that alleged exposure determining whether it occurred. In responding, the examiner should discuss the March 2021 private physician’s opinion submitted in support of these several claims attributing these several disabilities to that exposure that is being claimed (so on the premise it occurred). For the VA examiner’s opinion and that private physician’s opinion to ultimately have probative value, this alleged exposure in service on which these claims are predicated necessarily must first be confirmed, hence, the reason it is critically important to initially verify that alleged exposure.   3. Then, readjudicate these claims in light of all additional evidence obtained on remand. KEITH W. ALLEN Veterans Law Judge Board of Veterans’ Appeals R. Erdheim, Attorney for the Board Department of Veterans Affairs 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.