Citation Nr: 21028827 Decision Date: 05/12/21 Archive Date: 05/12/21 DOCKET NO. 11-26 331A DATE: May 12, 2021 ORDER Entitlement to an increased disability evaluation for bilateral hearing loss, initially rated as noncompensable, is denied. Entitlement to an increased disability evaluation for bilateral hearing loss, rated as 30 percent disabling for the rating period since November 30, 2020, is denied. Entitlement to service connection for hypertension, including as secondary to herbicide exposure, is granted. FINDINGS OF FACT 1. For the initial rating period on appeal, the Veteran's bilateral hearing loss disability was manifested by no more than Level III hearing in his right ear and Level III hearing in his left ear. 2. For the rating period since November 30, 2020, the Veteran's bilateral hearing loss disability was manifested by no more than Level VI hearing in his right ear and Level VI hearing in his left ear. 3. The Veteran served in Vietnam and is presumed to have been exposed to Agent Orange. 4. The Veteran's hypertension is attributable to his service. CONCLUSIONS OF LAW 1. The criteria for an initial compensable disability rating for bilateral hearing loss disability, for the rating period prior to November 30, 2020, are not met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.2, 4.7, 4.85-4.87, Diagnostic Code 6100 (2020). 2. The criteria for a disability rating in excess of 30 percent for bilateral hearing loss disability for the rating period since November 30, 2020 are not met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.2, 4.7, 4.85-4.87, Diagnostic Code 6100 (2020). 3. The criteria for service connection for hypertension have been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1116, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Marine Corps from July 1968 to February 1970. These matters come before the Board of Veterans' Appeals (Board) on appeal from a December 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California, which granted service connection for bilateral hearing loss and assigned a noncompensable disability evaluation, effective October 19, 2009; this rating decision also denied the Veteran's claim of entitlement to service connection for hypertension. During the pendency of the appeal, in a December 2020 rating decision, the Veteran was awarded an increased, 30 percent disability evaluation for his bilateral hearing loss, effective November 30, 2020. As the Veteran has not been granted the maximum benefits allowed, the claim of entitlement to an increased disability evaluation for bilateral hearing loss remains on appeal. See AB v. Brown, 6 Vet. App. 35, 38 (1993). The Board observes that the December 2019 VA audiological examiner found that the Veteran had tinnitus attributable to his confirmed noise exposure during service. The Board acknowledges that the Veteran has not filed a claim for service connection for tinnitus. Nonetheless, the Board directs the Agency of Original Jurisdiction (AOJ) to provide the Veteran with an application for compensation benefits for tinnitus, so that he may file a claim for service connection. The Board points out that nothing in this directive prevents the AOJ, sua sponte, from issuing a rating decision granting the Veteran service connection for tinnitus. In July 2016, November 2017, June 2019, and September 2020 the Board remanded the case to the AOJ. A supplemental statement of the case was most recently issued in December 2020. The case has since been returned to the Board for appellate review. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) imposes obligations on VA to provide claimants with notice and assistance. 38 U.S.C. §§ 5102, 5103, 5103A, 5107, 5126; Honoring America's Veterans and Caring for Camp Lejeune Families Act of 2012, Pub. L. No. 112-154, §§ 504, 505, 126 Stat. 1165, 1191-93; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2020). The VCAA requires VA to assist a claimant at the time that he or she files a claim for benefits. As part of this assistance, VA is required to notify claimants of the evidence that is necessary in substantiating their claims, and provide notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. 38 U.S.C. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); Dingess v. Nicholson, 19 Vet. App. 473, 486 (2006). Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Increased Rating Disability evaluations are determined by application of the criteria set forth in the VA's Schedule for Rating Disabilities, which is based on average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. An evaluation of the level of disability present must also include consideration of the functional impairment of the Veteran's ability to engage in ordinary activities, including employment. 38 C.F.R. § 4.10. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. Separate evaluations may be assigned for separate periods of time based on the facts found. In other words, the evaluations may be staged. Staged ratings are appropriate for any rating claim when the factual findings show distinct time periods during the appeal period where the service-connected disability exhibits symptoms that would warrant different ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). 1. Entitlement to an increased disability evaluation for bilateral hearing loss, initially rated as noncompensable. 2. Entitlement to an increased disability evaluation for bilateral hearing loss, rated as 30 percent disabling for the rating period since November 30, 2020. In evaluating service-connected hearing loss, disability ratings are derived by a mechanical application of the rating schedule to the numeric designations assigned after audiometric evaluations are performed. See Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). Diagnostic Code 6100, which is used to evaluate the Veteran's bilateral hearing loss disability, provides a table for rating purposes (Table VI) to determine a Roman numeral designation (I through XI) for hearing impairment, established by a state licensed audiologist including a controlled speech discrimination and the pure tone threshold average, which is the sum of the pure tone thresholds at 1000, 2000, 3000, and 4000 Hertz, divided by four. See 38 C.F.R. § 4.85. Table VII is used to determine the percentage evaluation by combining the Roman numeral designations for hearing impairment of each ear. The horizontal row represents the ear having the poorer hearing and the vertical column represents the ear having the better hearing. Id. Under 38 C.F.R. § 4.86(a), it states that when the pure tone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) is 55 decibels or more, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table IV or Table VIa, whichever results in the higher numeral. Each ear is to be evaluated separately. Id. The provisions of 38 C.F.R. § 4.86(b) provide that when the 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. That numeral will then be evaluated to the next higher Roman numeral. Id. At the VA audiological examination in November 2010, the pure tone thresholds, in decibels, for the right and left ears were as follows: 1000 Hertz 2000 Hertz 3000 Hertz 4000 Hertz Right Ear: 35 50 60 70 Left Ear: 30 35 60 75 The pure tone average was 53.75 on the right and 50 on the left. Maryland CNC speech recognition scores were 90 percent for the right ear and 92 percent for the left ear. As required by Martinak v. Nicholson, 21 Vet. App. 447 (2007), the VA examiner elicited information from the Veteran about the functional effects of his hearing loss disability. The Veteran told the examiner that he was missing conversations and had problems with phone calls due to difficulty hearing and understanding speech. Another VA audiological examination was conducted in December 2016. The pure tone thresholds, in decibels, for the right and left ears were as follows: 1000 Hertz 2000 Hertz 3000 Hertz 4000 Hertz Right Ear: 45 70 70 70 Left Ear: 45 70 70 75 The pure tone average was 64 on the right and 65 on the left. Maryland CNC speech recognition scores were 88 percent in the right ear and 84 percent in the left ear. Pursuant to Martinak, the examination report also indicates that the examiner asked the Veteran whether his hearing loss disability affected the ordinary conditions of daily life, including the ability to work; the Veteran responded that his bilateral hearing loss made communication difficult because he cannot understand when people speak. The Veteran was afforded another VA examination in December 2019. However, the VA examiner indicated that the Veteran's pure tone threshold hearing test result were invalid and "unreliable to render a diagnosis or opinion" and that the use of a speech discrimination score was "not appropriate." Another VA audiological examination was conducted in November 2020. The pure tone thresholds, in decibels, for the right and left ears were as follows: 1000 Hertz 2000 Hertz 3000 Hertz 4000 Hertz Right Ear: 55 70 75 80 Left Ear: 60 70 75 80 The pure tone average was 70 on the right and 71.25 on the left. Maryland CNC speech recognition scores were 88 percent in the right ear and 84 percent in the left ear. Pursuant to Martinak, the examination report also indicates that the examiner asked the Veteran whether his hearing loss disability affected the ordinary conditions of daily life, including the ability to work; the Veteran responded that his hearing loss causes him to have difficulties in conversations as he cannot understand what is being said, and that he feels the need to withdraw from certain activities because his hearing loss puts him at a serious disadvantage. Prior to November 30, 2020 Based upon the results of the VA audiological examination, the Board finds that the Veteran is entitled to the currently assigned noncompensable disability rating for the initial rating period on appeal (prior to November 30, 2020). The Board notes that, in accordance with Table VI of 38 C.F.R. § 4.85, based on the audiological findings in November 2010 and December 2016, the Veteran is assigned Level III for the right ear and Level III for the left ear. The intersection point for a Level III (right) and Level III (left) under Table VII of 38 C.F.R. § 4.85 shows that the hearing loss does not exceed the levels contemplated for the currently assigned noncompensable (0 percent) disability rating. Thus, the audiometric evidence of record does not support a finding of entitlement to a compensable disability evaluation for the entire rating period on appeal. Additionally, the Board points out that the provisions of 38 C.F.R. § 4.86(a) (Exceptional patterns of hearing impairment) are inapplicable, as the Veteran did not have pure tone thresholds of 55 or more in the specified frequencies (1000, 2000, 3000, and 4000 Hertz) at the November 2010 or December 2016 VA examinations. The Board also notes that the provisions of 38 C.F.R. § 4.86(b) are not applicable as both ears are not shown to manifest 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hz. Consequently, a compensable disability evaluation for the rating period prior to November 30, 2020 is not warranted. As the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable. See 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Since November 30, 2020 Based upon the results of the VA audiological examination, the Board finds that the Veteran is entitled to the currently assigned 30 percent disability rating for the entire rating period since November 30, 2020. The Board notes that, in accordance with Table VI of 38 C.F.R. § 4.85, based on the audiological findings in November 2020, the Veteran is assigned Level III for the right ear and Level III for the left ear. The intersection point for a Level IV (right) and Level IV (left) under Table VII of 38 C.F.R. § 4.85 shows that the hearing loss does not exceed the levels contemplated for the currently assigned 30 percent disability rating; to the contrary, the intersection point contemplates a noncompensable disability rating. Nevertheless, the Veteran is entitled to the currently assigned 30 percent disability rating for his bilateral hearing loss. In this regard, the Board points out that the provisions of 38 C.F.R. § 4.86(a) (Exceptional patterns of hearing impairment) assist the Veteran, as Table VIa result in the assignment of Level VI for the right ear and Level VI for the left ear. The intersection point for a Level VI (right) and Level VI (left) under Table VII of 38 C.F.R. § 4.85 shows that the Veteran is entitled to a 30 percent disability evaluation for his bilateral hearing loss. The Board notes, however, that the provisions of 38 C.F.R. § 4.86(b) are not applicable as both ears are not shown to manifest 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hz. Thus, the audiometric evidence of record supports a finding of entitlement to the currently assigned 30 percent disability evaluation for the rating period since November 30, 2020. Under these circumstances, a disability evaluation in excess of 30 percent is not warranted for the rating period since November 30, 2020. As the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable. See 38 U.S.C. § 5107(b); Gilbert, 1 Vet. App. at 54-55. Additional considerations In addition, the Board has considered whether an extraschedular rating is warranted for the Veteran's bilateral hearing loss during either of the rating periods on appeal. Ratings shall be based as far as practicable upon the average impairments of earning capacity with the additional proviso that the Secretary shall from time to time readjust this schedule of ratings in accordance with experience. To accord justice, therefore, to the exceptional case where the schedular ratings are found to be inadequate, the Under Secretary for Benefits or the Director, Compensation and Pension Service, upon field station submission, is authorized to approve, on the basis of the criteria set forth in this paragraph, an extraschedular rating commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities. The governing norm in these exceptional cases is a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards. 38 C.F.R. § 3.321(b)(1). The United States Court of Appeals for Veterans Claims (Court) has clarified that there is a three-step inquiry for determining whether a veteran is entitled to an extraschedular rating. Thun v. Peake, 22 Vet. App. 111, 115 (2008). Initially, the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular ratings for the service-connected disability are inadequate. See Yancy v. McDonald, 27 Vet. App. 484 (2016); Doucette v. Shulkin, 28 Vet. App. 366 (2017) (holding that either the veteran must assert that a schedular rating is inadequate or the evidence must present exceptional or unusual circumstances); Sowers v. McDonald, 27 Vet. App. 472, 478 (2016) ("[t]he rating schedule must be deemed inadequate before extraschedular consideration is warranted"). Second, if the schedular rating does not contemplate the veteran's level of disability and symptomatology and is found inadequate, the Board must determine whether the veteran's disability picture exhibits other related factors such as marked interference with employment and frequent periods of hospitalization. Thun, 22 Vet. App. at 116. Third, if the first two Thun elements have been satisfied, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the veteran's disability picture requires the assignment of an extraschedular rating. Id. In other words, the first element of Thun compares a veteran's symptoms to the rating criteria, while the second element considers the resulting effects of those symptoms; if either prong is not met, then referral for extraschedular consideration is not appropriate. Yancy, 27 Vet. App. at 494-95. With respect to the first prong of Thun, the evidence in the instant appeal does not establish such an exceptional disability picture as to render the schedular criteria inadequate. The schedular rating criteria for rating hearing loss provide for disability ratings based on audiometric evaluations, to include speech discrimination and pure tone testing. Here, the Veteran's hearing loss symptoms and described hearing impairments are contemplated by the schedular rating criteria. The Veteran has reported symptoms of difficulty hearing and consequent problems with communicating with others. The schedular rating criteria specifically provide for ratings based on all levels of hearing loss in various contexts, as measured by both audiometric testing and speech recognition testing. The ability of the Veteran to hear sounds and voices is measured and rated by an audiometric test, as this test measures different frequencies and captures high frequency hearing loss from sources including voices, music, sirens, and certain high-pitched sounds. The ability of the Veteran to understand people, as well as respond to others, is rated by a speech recognition test, as this test measures conversation comprehension, words, and missed conversations. The schedular rating criteria specifically provide for ratings based on all levels of hearing loss, including exceptional hearing patterns which were not demonstrated in this case, and as measured by both audiometric testing and speech recognition testing. See Doucette v. Shulkin, 28 Vet. App. 366 (2017) (holding "that the rating criteria for hearing loss contemplate the functional effects of difficulty hearing and understanding speech"). It logically follows that difficulty hearing and understanding speech would impact a veteran in a variety of ways, including potential embarrassment and frustration, but the rating schedule is not written to account for every possible consequence associated with each symptom. Significantly, the Court in Doucette reviewed a similar factual situation, inasmuch as the Board had considered that claimant's report of being embarrassed from having to ask others to repeat themselves, among other reported difficulties, in finding that the resultant effect of the reported symptoms was difficulty hearing. The Court determined that the claimant had not alleged any symptoms in that case that could be considered exceptional or unusual for a claimant suffering from hearing loss. See Id., 28 Vet. App. at 372-73. The decibel loss and speech discrimination ranges designated for each level of hearing impairment in Tables VI and VIa were chosen in relation to clinical findings of the impairment experienced by veterans with certain degrees and types of hearing disability. The regulatory history of 38 C.F.R. §§ 4.85 and 4.86 includes revisions, effective June 10, 1999. See 64 Fed. Reg. 25,202 (May 11, 1999). In forming these revisions, VA sought the assistance of the Veteran's Health Administration (VHA) in developing criteria that contemplated situations in which a veteran's hearing loss was of such a type that speech discrimination tests may not reflect the severity of communicative functioning these veterans experienced or that was otherwise an extreme handicap in the presence of any environmental noise, even with the use of hearing aids. VHA had found through clinical studies of veterans with hearing loss that, when certain patterns of impairment are present, a speech discrimination test conducted in a quiet room with amplification of the sounds does not always reflect the extent of impairment experienced in the ordinary environment. The decibel threshold requirements for application of Table VIa were based on the findings and recommendations of VHA. The effect of the revision was to fairly and accurately assess the hearing disabilities of veterans as reflected in a real-life industrial setting. 59 Fed. Reg. 17,295 (Apr. 12, 1994). The inherent purpose of the schedular rating criteria is to determine, as far as practicable, the severity of functional impact resulting from a service-connected disability, including any resultant occupational and social impairment, and therefore contemplates the Veteran's difficulties functioning in a social environment due to hearing loss. Accordingly, the Board finds that the Veteran's reported hearing-related difficulties are factors contemplated in the regulations and schedular rating criteria. See also Doucette, 28 Vet. App. 366 (holding that "the rating criteria for hearing loss contemplate the functional effects of decreased hearing and difficulty understanding speech in an everyday work environment, as these are precisely the effects that VA's audiometric tests are designed to measure . . . an inability to hear or understand speech or to hear other sounds in various contexts . . . are contemplated by the schedular rating criteria").] Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a) (2018). To establish a right to compensation for a present disability, 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 servicethe so-called "nexus" requirement. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may be granted for any disease initially diagnosed after service when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. For chronic diseases, if chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. 38 C.F.R. §§ 3.303(b), 3.309; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). 3. Entitlement to service connection for hypertension, including as secondary to herbicide exposure. VA laws and regulations provide that, if a Veteran was exposed to herbicide agents during service, certain listed diseases are presumptively service connected. 38 U.S.C. § 1116(a)(1); 38 C.F.R. § 3.309(e). A Veteran who "served in the Republic of Vietnam" between January 9, 1962 and May 7, 1975 is presumed to have been exposed during such service to herbicide agents. 38 U.S.C. § 1116(f); 38 C.F.R. § 3.307(a)(6)(iii). The listed diseases are: AL amyloidosis, chloracne or other acneform disease consistent with chloracne, Type II diabetes mellitus (adult-onset diabetes), Hodgkin's disease, ischemic heart disease, chronic B-cell leukemias, multiple myeloma, non-Hodgkin's lymphoma, Parkinson's disease, acute and subacute peripheral neuropathy, porphyria cutanea tarda, prostate cancer, respiratory cancers (cancer of the lung, bronchus, larynx or trachea); and soft-tissue sarcoma (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma). In addition, the Secretary of VA has determined that there is no positive association between exposure to herbicide agents and any other condition for which the Secretary has not specifically determined that a presumption of service connection is warranted. See Notice, 59 Fed. Reg. 341-46 (1994); Notice, 61 Fed. Reg. 41, 442-49 (1996); Notice, 72 Fed. Reg. 32,395-32,407 (Jun. 12, 2007); Notice, 74 Fed. Reg. 21,258-21,260 (May 7, 2009); Notice, 75 Fed. Reg. 32540 (June 8, 2010). As an initial matter, the Board notes that the Veteran's service personnel records reflect that the Veteran served in Vietnam. As such, the Veteran is presumed to have been exposed to Agent Orange during active duty, and the presumptions outlined in 38 C.F.R. § 3.309(e) are applicable. 38 C.F.R. § 3.307(a)(6)(iv). With respect to the Veteran's contention that his hypertension is linked to exposure to herbicide agents, as noted above, exposure has been conceded in this case. Under Section 3 of the Agent Orange Act of 1991, Public Law No. 102-4, 105 Stat. 11, the Secretary of Veterans Affairs entered into an agreement with the National Academy of Sciences (NAS) to review and summarize the scientific evidence concerning the association between exposure to herbicides used in Vietnam and various diseases suspected to be associated with such exposure. The NAS was to determine, to the extent possible, whether there is a statistical association between the suspect disease and herbicide exposure, taking into account the strength of the scientific evidence and the appropriateness of the methods used to detect the association; the increased risk of disease among individuals exposed to herbicides during the service in the Republic of Vietnam during the Vietnam era; and whether there is a plausible biological mechanism or other evidence of a causal relationship between herbicide exposure and the suspect disease. At the Federal Government's direction, the Institute of Medicine of the NAS issues a report every two years on the effects of herbicide agent and similar herbicides to various diagnoses. On November 15, 2018, the NAS issued Veterans and Agent Orange: Update 11 (2018), in which the NAS upgraded hypertension to the "sufficient" category from "limited or suggestive," indicating that "there is enough epidemiologic evidence to conclude that there is a positive association" between hypertension and herbicide exposure based on the current data on hypertension and herbicide agents. The medical evidence of record confirms that the Veteran has been diagnosed with and is currently being treated for hypertension. This disease is not listed in the applicable regulations as presumptively associated with exposure to certain herbicide agents, thus, presumptive service connection is not warranted. However, the most recent, November 2018 NAS report indicates that it is as likely than not that a relationship between the Veteran's hypertension and his exposure to herbicides in service exists. Likewise, the Board observes that the December 2020 VA examination report and contemporaneous medical opinions noted that the dioxin in the herbicide known as Agent Orange causes a hardening of the arterial wall, resulting in a resistance to blood flow, which in turn leads to hypertension; the VA examiner concluded that the Veteran's hypertension was caused by the Veteran's Agent Orange exposure during his Vietnam service. As such, the Board finds that service connection for hypertension can be awarded on a direct basis. GAYLE STROMMEN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Hallie E. Brokowsky, 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.