Citation Nr: 21030410 Decision Date: 05/18/21 Archive Date: 05/18/21 DOCKET NO. 15-42 816 DATE: May 18, 2021 ORDER Service connection for skin disabilities, to include actinic keratosis and squamous cell carcinoma in situ, is granted. Service connection for a respiratory disorder, to include chronic cough, is granted. An initial compensable rating for bilateral hearing loss is denied. FINDINGS OF FACT 1. The competent and probative evidence tends to show that the Veteran's current actinic keratosis and squamous cell carcinoma in situ disabilities are related to service. 2. The competent and probative evidence is at least in equipoise that the Veteran's current respiratory disorder, manifested by a chronic cough disability, is proximately due to his service-connected coronary artery disease. 3. The Veteran has had no worse than Level IV hearing loss in the right ear and Level II hearing loss in his left ear, with no exceptional patterns of hearing loss in either ear. CONCLUSIONS OF LAW 1. The criteria for service connection for skin disabilities are met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. § 3.102, 3.303. 2. The criteria for service connection for a respiratory disorder, manifested by a chronic cough disability, are met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. § 3.102, 3.310(a). 3. The criteria for entitlement to an initial compensable rating for bilateral hearing loss are not met. 38 U.S.C. § 1155; 38 C.F.R. § § 4.3, 4.10, 4.85, Diagnostic Code (DC) 6100. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service in the United States Army from June 1970 to May 1973. This matter is before the Board of Veterans' Appeals (Board) on appeal from a March 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veterans Law Judge (VLJ) at a videoconference Board hearing in November 2018; transcript is of record. In August2019, the Board remanded these matters for additional development. They have now returned to the Board for appellate consideration. The Board finds there has been substantial compliance with its prior remand directives. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008). Additional examinations were scheduled and performed. Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. In order to establish entitlement to service connection, there must be 1) evidence of a current disability; 2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and 3) causal connection between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be granted for a disability, which is proximately due to, or aggravated by, a service-connected disease or injury. 38 C.F.R. § 3.310. Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either caused or aggravated by a service-connected disease or injury. Allen v. Brown, 7 Vet. App. 43, 448-49 (1995). A veteran is presumed to have been in sound condition when enrolled for service, except for any disease or injury noted at the time of enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before enrollment and was not aggravated by such service. Only such conditions as are recorded in examination reports are to be considered as noted. 38 U.S.C. § 1111; 38 C.F.R. § 3.304 (b); Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). When no pre-existing medical condition is noted upon entry into service, a Veteran is presumed to have been sound upon entry. 38 U.S.C. § 1111; Wagner, 370 F.3d at 1096; Bagby v. Derwinski, 1 Vet. App. 225, 227 (1991). If the presumption of soundness applies, the burden then shifts to the Government to rebut the presumption by clear and unmistakable evidence that the disability was both preexisting and not aggravated by service. Wagner, 370 F.3d at 1096; Bagby, 1 Vet. App. at 227. As further explained in Horn v. Shinseki: Once the presumption of soundness applies, the burden of proof remains with the Secretary on both the preexistence and the aggravation prong; it never shifts back to the claimant. In particular, even when there is clear and unmistakable evidence of preexistence, the claimant need not produce any evidence of aggravation in order to prevail under the aggravation prong of the presumption of soundness... the burden is not on the claimant to show that his disability increased in severity; rather, it is on VA to establish by clear and unmistakable evidence that it did not or that any increase was due to the natural progress of the disease. 25 Vet. App. 231, 235 (2012). "The Federal Circuit has made clear that the Secretary may rebut the second prong of the presumption of soundness through demonstrating, by clear and unmistakable evidence, either that (1) there was no increase in disability during service, or (2) any increase in disability was due to the natural progression of the condition." Quirin v. Shinseki, 22 Vet. App. 390, 397 (2009) (citing Wagner, 370 F.3d at 1096). This burden must be met by "affirmative evidence" demonstrating that there was no aggravation. See Horn, 25 Vet. App. at 235. The burden is not met by finding "that the record contains insufficient evidence of aggravation." Id. Clear and unmistakable evidence is defined as obvious or manifest. 38 C.F.R. § 3.306(b). Clear and unmistakable evidence means that the evidence "'cannot be misinterpreted and misunderstood, i.e., it is undebatable.'" Quirin v. Shinseki, 22 Vet. App. 390, 396 (2009). The Veteran is competent to report symptoms and experiences observable by his senses. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); 38 C.F.R. § 3.159(a). VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed Cir. 2009). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 57-58 (1990). 1. Entitlement to service connection for a skin disability. The Veteran asserts service connection for a skin disability. After reviewing the relevant lay and medical evidence, the Board concludes that the Veteran has current diagnoses of actinic keratosis and squamous cell carcinoma in situ, and that the evidence tends to show that they are due to his active duty. 38 U.S.C. §§ 1110, 5107(b). During the period on appeal, he has current diagnoses of actinic keratosis and squamous cell carcinoma in situ. See 11/27/2018, CAPRI Skin. As such, the first element of service connection is met. The Veteran's service treatment records document a superficial skin disorder at his entrance examination. See 6/8/2014, STR Medical. His exit examination was normal. The Veteran testified at a Board hearing that he had sun exposure and sunburns during his service in Vietnam. The January 2021 examiner stated that his disabilities may have pre-existed service as skin conditions were reported at his entrance examination. However, the examiner also acknowledged that the specific disorders were not reported. The Board acknowledges that the January 2021 examiner found that the Veteran's disability preexisted service as his entrance examination listed a superficial skin disorder. However, in this matter, the Veteran's service treatment records show a superficial skin disorder and it was not reported that they were actinic keratoses or squamous cell carcinoma in situ. Additionally, his exit examination was normal for his skin. In light of the normal exit examination and that the notation was not specific, the Board finds that the Veteran was in sound condition regarding his specific skin disabilities of actinic keratosis and squamous cell carcinoma as such disabilities were not noted when he was examined, accepted, and enrolled into active service. 38 U.S.C. § 1111. The 2021 examiner provided a positive nexus. The Board acknowledges that examiner reported the Veteran's skin conditions may have pre-existed service. However, this examiner also reported that environmental factors, including excessive sunlight and others, would have aggravated the Veteran's skin disabilities. Medical literature shows UV exposure is a major risk factor for actinic keratosis. The Board finds this opinion to have probative value. The examiner thoroughly reviewed the Veteran's medical records, supported her conclusions with appropriate rationale, and cited medical literature. After review of the competent and probative evidence, the Board finds that when resolving reasonable doubt in favor of the Veteran, the evidence tends to show that the Veteran's skin disabilities are due to UV exposure during service. The Board acknowledges the examiner suggested that his disabilities pre-existed service. However, the Board has found that he was in sound condition as the specific skin disorders were not reported. 38 U.S.C. § 1111. Additionally, there is not a competent negative nexus opinion weighing against the claim. Therefore, service connection for actinic keratosis and squamous cell carcinoma is warranted. 38 C.F.R. § 3.102, 3.303. 2. Entitlement to service connection for a respiratory disorder, to include chronic cough. The Veteran asserts service connection for a respiratory disorder, to include as manifested by a chronic cough. After reviewing the relevant lay and medical evidence, the Board concludes that the Veteran has a current diagnosis of a chronic cough, and that the evidence shows that it is caused by his service-connected coronary artery disease. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. § 3.310(a). The Veteran has a current diagnosis of a chronic or viral cough, to include as reported in VA treatment records. See 12/19/2015, CAPRI Chronic; 5/29/2018, CAPRI Viral. As such, the first element of service connection is met. He underwent an examination in October 2020. Acceptable Clinical Evidence was used. The examiner reported that the Veteran did not have a respiratory disorder. However, the examiner did not discuss the documentations of a chronic cough, and as such, the Board resolves reasonable doubt in favor of the Veteran, and finds that a current disability has been shown during the period on appeal. The Veteran testified at a Board hearing that he has had sinus problems and coughing since service. His spouse reported that he has had a chronic cough for over 40 years. The Board finds the Veteran and his spouse competent to describe his coughing. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). The October 2020 examiner provided a negative direct service connection opinion. However, the examiner reported that the Veteran has congestive heart failure and that according to the Mayo Clinic, a persistent cough or wheezing is a symptom of congestive heart failure. The Veteran is service-connected for coronary artery disease with atrial fibrillation and complicated by congestive heart failure. After review of the competent and probative evidence, the Board finds that when resolving reasonable doubt in favor of the Veteran, the evidence is at least in equipoise that his respiratory disorder, manifested by a chronic cough disability, is secondary to his service-connected coronary artery disease with atrial fibrillation and congestive heart failure. 38 U.S.C. § 5107(b). Although the October 2020 examiner provided a negative nexus opinion, the examiner also stated that a persistent cough is a symptom of congestive heart failure. Medical literature was cited. Additionally, there is no negative nexus opinion addressing secondary service connection. As such, the Board finds that the evidence is at least in equipoise that the Veteran's chronic cough is secondary to his coronary artery disease with congestive heart failure. 38 C.F.R. § 3.102; see Wise v. Shinseki, 26 Vet. App. 517, 531 (2014) (noting that the benefit of the doubt rule is a unique standard of proof, and "the nation, 'in recognition of our debt to our veterans,' has 'taken upon itself the risk of error' in awarding such benefits"). Therefore, service connection for a chronic cough is warranted. 38 C.F.R. § 3.102, 3.303, 3.310(a). Increased Rating Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The percentages are based on the average impairment of earning capacity as a result of service-connected disability, and separate diagnostic codes identify the various disabilities and the criteria for specific ratings. 38 U.S.C. § 1155 ; 38 C.F.R. § 4.1. If two disability evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. All reasonable doubt as to the degree of disability will be resolved in favor of the claimant. 38 C.F.R. § 4.3. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, the Board must also consider staged ratings. Hart v. Mansfield, 21 Vet. App. 505, 50910 (2007). The evaluation of the same disability under several diagnostic codes, known as pyramiding, must be avoided; however, separate ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not duplicative of or overlapping with the symptomatology of the other. Esteban v. Brown, 6 Vet. App. 259, 262 (1994); 38 C.F.R. § 4.14. The Veteran is competent to report symptoms and experiences observable by his senses. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); 38 C.F.R. § 3.159(a). 3. Entitlement to an initial compensable rating for bilateral hearing loss The Veteran receives a noncompensable rating for his bilateral hearing loss under DC 6100. Disability ratings for hearing loss are assigned based on the results of controlled speech discrimination tests combined with the results of pure tone audiometry tests. See 38 C.F.R. § § 4.85, 4.87. An examination for VA rating purposes must be conducted by a state-licensed audiologist and must include a controlled speech discrimination test, specifically, the Maryland CNC test, and a pure tone audiometry test. 38 C.F.R. § 4.85(a). Further, disability ratings for hearing impairment are assigned through a structured formula, i.e., a mechanical application of the rating schedule to numeric designations that are assigned after audiometric evaluations have been rendered. Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). The rating criteria for hearing loss provide tables for combining the level of loss in the ears. Table VI is used to determine a Roman numeral designation for each ear based on a combination of the speech discrimination percentage and the average pure tone threshold, or the sum of thresholds at 1000, 2000, 3000, and 4000 Hertz, divided by four. Table VIA designates a Roman numeral based on the average pure tone thresholds only. Table VI is typically used, but Table VIA may be used for exceptional patterns of hearing loss. After a Roman numeral designation has been assigned for each ear, Table VII is used to determine the compensation rate by combining such designations for impairment in both ears. 38 C.F.R. § § 4.85, 4.86. 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 VI or Table VIA, whichever results in the higher numeral. Each ear will be evaluated separately. 38 C.F.R. § 4.86 (a). 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 elevated to the next higher. 38 C.F.R. § 4.86(b). The Veteran underwent an examination in February 2015. 500Hz 1000Hz 2000Hz 3000Hz 4000Hz 6000Hz 8000Hz Average R 15 15 15 50 50 55 75 33 L 20 45 25 60 70 95 100 50 His Puretone average for the right ear was 33. For his left, it was 50. Speech recognition scores were 72 percent in the right ear and 92 percent in the left ear. He did not have an exceptional pattern of hearing impairment. Such findings translate to Level IV in the right ear and Level I in the left ear under Table VI. 38 C.F.R. § 4.85, Table VI. Applying Table VII, DC 6100, this equates to a noncompensable percent disability rating. He underwent an additional examination in September 2019. 500Hz 1000Hz 2000Hz 3000Hz 4000Hz 6000Hz 8000Hz Average R 15 20 25 50 55 55 70 38 L 15 45 40 60 85 90 100+ 58 His Puretone average for the right ear was 38, and for his left, it was 58. Speech recognition scores were 96 percent for the right ear and 100 percent for the left ear. He did not have an exceptional pattern of hearing impairment. Such findings translate to Level I in the right ear and Level II in the left ear under Table VI. 38 C.F.R. § 4.85, Table VI. Applying Table VII, DC 6100, this equates to a noncompensable percent disability rating. At the 2015 examination, the Veteran reported that his hearing loss affected his ability to understand speech with the presence of background noise. The Veteran is competent to report these symptoms, and the Board also finds him credible, as the statements on these points are consistent. See Jandreau, 492 F.3d at 1377. Nevertheless, VA's rating of hearing impairment is based on specific measurements that must be gathered by a state-licensed audiologist using specific tests, as discussed above. As such, the medical evidence and test results are more probative and outweigh the lay subjective reports of a more severe degree of disability because they directly address the rating criteria for the Veteran's hearing loss. VA's Schedule for Rating Disabilities has been found to contemplate the problems reported by the Veteran in terms of his difficulty hearing others. 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"). Accordingly, this claim must be denied. The Board has considered the applicability of the benefit of the doubt doctrine, but the preponderance of the evidence is against an initial compensable rating for the period on appeal. Under these circumstances, the doctrine is not applicable. 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Paul Sorisio Veterans Law Judge Board of Veterans' Appeals Attorney for the Board G. Morales, 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.