Citation Nr: 21025578 Decision Date: 04/28/21 Archive Date: 04/28/21 DOCKET NO. 18-19 933 DATE: April 28, 2021 ORDER The issue of entitlement to service connection for bilateral hearing loss is denied. The issue of entitlement to service connection for squamous cell carcinoma is denied. REMANDED The issue of entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. Neither the Veteran’s auditory thresholds in the frequencies of 500, 1000, 2000, 3000, and 4000 Hertz nor the Veteran’s speech recognition scores met the criteria for a hearing loss disability for VA purposes. 2. The Veteran’s squamous cell carcinoma did not have its clinical onset during active service nor is it otherwise related to an in-service injury or disease, including environmental exposures in Southwest Asia. CONCLUSIONS OF LAW 1. The criteria for establishing service connection for bilateral hearing loss are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.385. 2. The criteria for entitlement to service connection for squamous cell carcinoma are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the Army from February 2003 to May 2004, again from June 2006 to October 2007, and finally from June 2009 to September 2010. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from September 2017 and August 2018 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO). Because of the Veteran’s passing in March 2019, his wife testified at a Board hearing before the undersigned Veterans Law Judge in March 2021. A transcript of the hearing is of record. She has been substituted as the appellant in this appeal. To establish service connection, a showing of competent medical, or in certain circumstances, lay evidence must confirm (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the disease or injury incurred or aggravated during service. 38 C.F.R. § 3.303(a); Shedden v. Principi, 381 F.3d 1163, 1166–67 (Fed. Cir 2004). 1. The issue of entitlement to service connection for bilateral hearing loss For the purposes of applying the laws administered by VA, impaired hearing is considered a disability when the auditory threshold in any of the frequencies 500,1000, 2000, 3,000, 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3,000, 4000 Hertz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. Here, the Veteran was afforded one VA examination in furtherance of his claim for bilateral hearing loss. See 9/20/2016 C&P Examination. While the examiner noted hearing loss at 8000 Hertz in the right ear and at 6000-8000 Hertz in the left ear, due to the time span between shifts in hearing, she opined that the hearing loss demonstrated at those frequencies were more likely due to natural progression of hearing loss than to any in-service noise exposure. Nonetheless, that examination revealed the Veteran’s auditory thresholds as 5, 5, 20, 25, 20 decibels at the specified frequencies in the right ear and 15, 10, 15, 10, 20 decibels at the specified frequencies in the left hear and the examiner noted speech recognition scores of 100 percent in both ears. Id. Those findings do not constitute a disability for purposes of applying the laws administered by VA. There are no audiometric records post-dating the 2016 VA examination that show hearing loss for VA purposes. Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability. See 38 U.S.C. § 1110. In the absence of proof of a current bilateral hearing loss disability, service connection for that disability cannot be established. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Thus, the Veteran’s claim of entitlement to service connection for bilateral hearing loss must be denied. 2. The issue of entitlement to service connection for squamous cell carcinoma In this case, the Veteran contended that he developed squamous cell carcinoma as a result of his exposure to carcinogens due to his proximity to burn pits during his two deployments in Iraq. See 8/9/2017 C&P Examination. Specifically, the Veteran asserted that he was exposed daily to continuously operating burn pits while stationed in Camp Taji and, while less, continuous exposure during his second deployment as well. Id. Additionally, the appellant, through her representative, contended that the Veteran’s military occupational specialty as a heavy vehicle mechanic exposed him to diesel fuel and other chemicals that led to his squamous cell carcinoma. 3/1/2021 Hearing Transcript. As a preliminary matter, the Board acknowledges that the Veteran was diagnosed with squamous cell carcinoma of the left lateral tongue. See 11/18/2019 Medical Treatment Record – Non-Government Facility. Because the first criterion for establishing service connection is met, the focus turns to whether the condition was related to service. Upon review of the record, the Board finds that it was not. The Veteran’s service treatment records while in active service do not contain any complaints, treatment, or diagnosis of a tongue condition, or of any other condition that may be considered to be related to squamous cell carcinoma. Additionally, during the only VA examination related to the claim of entitlement to service connection for squamous cell carcinoma, the examiner opined that the Veteran’s cancer was unlikely to have been caused by his service in Southwest Asia. 8/9/2017 C&P Examination. According to the examiner, the chief risk factors for oral squamous cell cancer are smoking and alcohol use, and the Veteran’s VA medical records show that he had an extensive history as a cigarette smoker and document significant alcohol use. Given this history, it was less likely than not that the Veteran developed squamous cell carcinoma as a result of environmental exposures in Southwest Asia, which have not been determined to have a significant correlation with the development of squamous cell carcinoma. The Board finds the examiner’s opinion in keeping with the record. The record evidences a more than 20-year history of smoking approximately a pack of cigarettes per day as well as a history of considerable daily alcohol use which led to alcohol withdrawal syndrome with delirium and court mandated alcohol abuse classes. See 12/11/2017 Correspondence; 11/18/2019 Medical Treatment Record- Non-Government Facility. To the extent that the appellant’s testimony contradicts the severity of the Veteran’s use of tobacco and alcohol shown in his treatment records, the Board finds the contemporaneous treatment records describing the extent of his use of each to be more probative. See White v. Illinois, 502 U.S. 346, 355-56 (1991) (noting that statements made for the purpose of medical diagnosis or treatment are exceptionally trustworthy because the declarant has a strong motive to tell the truth in order to receive a proper diagnosis or treatment). Because the preponderance of the evidence of record indicates that the Veteran’s squamous cell carcinoma is not related to service, service connection is denied. The Board is grateful to the Veteran for his honorable service, and regrets that a more favorable outcome could not be reached. REASONS FOR REMAND The issue of entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. A TDIU claim can be expressly raised or inferred, by the Veteran’s contentions and the evidence of record. Rice v. Shinseki, 22 Vet. App. 447 (2009). If there is evidence of unemployability at the time of an increased rating claim challenging the initial disability rating assigned for the disability upon which the unemployability is based, entitlement to TDIU, including the effective date for that award, is part and parcel of the determination of the initial rating for that disability. Id. at 454-55. A request for TDIU (whether expressly raised or implied by the record) is not a separate claim for benefits. Rather, it is an attempt to obtain an appropriate rating, either as part of the initial adjudication of a claim or as part of a claim for an increased rating. Id. at 453-54. Once the issue of entitlement to TDIU is raised, it is “part of the claim for benefits for the underlying disability.” Id. Here, the Veteran indicated that he would like to file a claim for individual unemployability in a March 2017 Application for Increased Compensation Based on Unemployability. In that application, the Veteran indicated that he worked for the Massachusetts Army National Guard in equipment repair from October 1987 to September 2016. Additionally, the record reflects that the Massachusetts Army National Guard found the Veteran medically unretainable in July 2016. See 9/16/2017 STR. Finally, the Veteran contended that he was forced to resign from his job as an auxiliary police officer in the town of Bellingham because his PTSD caused him to pull a gun on a pizza delivery guy he perceived as a threat. 12/11/2017 Correspondence. Thus, the Board finds that the record raises the issue of TDIU and remands the claim to properly develop and adjudicate it. The matter is REMANDED for the following actions: 1. Obtain additional records from the Massachusetts Army National Guard related to the reasoning behind the Veteran’s medical unretainability. 2. Make reasonable efforts to obtain the Veteran’s employment records from the town of Bellingham police force. 3. Following a review of any additional evidence provided, the RO should make an initial determination regarding entitlement to a TDIU. S.C. Krembs Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Z. Sloley, 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.