Citation Nr: 21031816 Decision Date: 05/24/21 Archive Date: 05/24/21 DOCKET NO. 17-23 199 DATE: May 24, 2021 ORDER Entitlement to an initial compensable rating for the service-connected bilateral hearing loss prior to August 25, 2020, and in excess of 40 percent on and thereafter, is denied. REMANDED Entitlement to service connection for a lung disability other than pharyngeal cancer, to include chronic bronchitis and emphysema and to include as due to in-service herbicide exposure, is remanded. Entitlement to service connection for a kidney disability, to include as due to in-service herbicide exposure, is remanded. Entitlement to service connection for hypertension, to include as due to in-service herbicide exposure, is remanded. FINDINGS OF FACT 1. Prior to August 25, 2020, audiometric testing shows that the Veteran's bilateral hearing loss has been manifested by no worse than Level II in his right ear and Level II in his left ear. An exceptional hearing loss pattern was not shown in either ear. 2. Since August 25, 2020, audiometric testing shows that the Veteran's bilateral hearing loss has been manifested by no worse than Level VI in his right ear and Level VIII in his left ear, with no exceptional hearing loss pattern in either ear. CONCLUSION OF LAW The criteria for an initial compensable rating for the service-connected bilateral hearing loss prior to August 25, 2020, and in excess of 40 percent on and thereafter, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.159, 3.321, 4.85, 4.86, Diagnostic Code 6100. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from August 1965 to August 1968, including service in Vietnam. This current matter comes to the Board of Veterans' Appeals (Board) on appeal from an August 2014 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In October 2019, the Veteran testified at a hearing before the undersigned Veterans Law Judge (VLJ) at the RO, and a transcript of that proceeding has been associated with the claims file. In February 2020, the Board reopened the previously denied claims for service connection for a kidney disability, hypertension, and a lung disability. The underlying service connection issues for these claimsas well as the issue of entitlement to an increased rating for the service-connected bilateral hearing losswere remanded for further development. In a September 2020 rating decision, the RO assigned an increased rating for the service-connected bilateral hearing loss to 40 percent, effective August 25, 2020. As higher ratings remain available for the entirety of the appeal period, the increased rating claim remains on appeal. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). A remand by the Board confers on the claimant a legal right to compliance with the remand order. Stegall v. West, 11 Vet. App. 268, 271 (1998). Compliance with a remand is not discretionary, and failure to comply with the terms of a remand necessities remand for corrective action. Id. Substantial compliance with the remand order, not strict compliance, is required. Donnellan v. Shinseki, 24 Vet. App. 167, 176 (2010); Dyment v. West, 13 Vet. App. 141, 147 (1990). Failure of the Board to ensure compliance with remand instructions constitutes error and warrants the vacating of a subsequent Board decision. Stegall, 11 Vet. App. at 271. Entitlement to an initial compensable rating for service-connected bilateral hearing loss prior to August 25, 2020, and in excess of 40 percent on and thereafter Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The basis of disability ratings is the ability of the body as a whole, or of the psyche, or of a system or organ of the body, to function under the ordinary conditions of daily life, including employment. 38 C.F.R. § 4.10. The determination of whether an increased rating is warranted is based on review of the entire evidence of record and the application of all pertinent regulations. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where there is a question as to which of two ratings shall be applied, the higher rating 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. While a veteran's entire history is reviewed when making a disability determination, where service connection has already been established and increase in the disability rating is at issue, it is the present level of the disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). However, staged ratings are appropriate for an increase rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different findings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Disability ratings for service-connected hearing impairments are determined through a mechanical application of the rating schedule to the numeric designations assigned after audiometric evaluations are made. Bruce v. West, 11 Vet. App. 405 (1998); Lendenmann v. Principi, 3 Vet. App. 345 (1992). Under the rating criteria, the basic method of rating bilateral hearing loss is based on examination results including a controlled speech discrimination test (Maryland CNC), and a puretone audiometric test of puretone decibel thresholds at 1000, 2000, 3000, and 4000 Hertz (Hz) with an average puretone threshold obtained by dividing these thresholds by four. The regulations set forth eleven auditory acuity levels, designated from Roman numerals I to XI, in escalating order of hearing impairment. 38 C.F.R. § 4.85. The appropriate auditory level is identified as the point where the percentage of speech discrimination and puretone threshold average intersect. Id. The regulations also provide that in cases of exceptional hearing loss, i.e., when the puretone threshold at each of the four specified frequencies (1000, 2000, 3000, 4000 Hz) is 55 decibels or more, the Roman numeral designation will be determined from either Table VI or Table VIA, whichever results in the higher numeral. 38 C.F.R. § 4.86(a). Likewise, a Roman numeral designation will be determined from either Table VI or Table VIA, whichever results in the higher numeral, when the puretone threshold is 30 decibels or less at 1000 Hertz, and 70 decibels or more at 2000 Hertz. That numeral will then be evaluated to the next higher Roman numeral. 38 C.F.R. § 4.86(b). The Veteran contends that his service-connected bilateral hearing loss warrants an initial compensable rating prior to August 25, 2020, and a rating in excess of 40 percent on and thereafter. Specifically, he reports that he has difficulty understanding speech at times and that he reads lips because he cannot hear. A June 2014 VA audiological examination provides the following puretone thresholds, in decibels: HERTZ 1000 2000 3000 4000 RIGHT 50 75 75 80 LEFT 35 75 75 80 These results show an average puretone threshold of 70 decibels in the Veteran's right ear and 66.25 decibels in his left ear. Speech recognition ability using the Maryland CNC Test was 94 percent in his right ear and 96 percent in his left ear. (A pattern of exceptional hearing loss was not shown. 38 C.F.R. § 4.86.) These audiometry test results equate to Level II hearing impairment in the Veteran's right ear and Level II hearing impairment in the left ear, using Table VI. 38 C.F.R. § 4.85. Based on the mechanical application derived from Table VII in 38 C.F.R. § 4.85, these levels result in a 0 percent rating. Following the Board's February 2020 remand, the Veteran was accorded another examination in August 2020. The audiological evaluation provided puretone thresholds, in decibels, as follows: HERTZ 1000 2000 3000 4000 RIGHT 40 80 80 85 LEFT 45 75 80 85 These results show an average puretone threshold of 71.25 decibels in the Veteran's right ear and 71.25 decibels in his left ear. Speech recognition ability using the Maryland CNC Test was 72 percent in his right ear and 46 percent in his left ear. (A pattern of exceptional hearing loss was not shown. 38 C.F.R. § 4.86.) These audiometry test results equate to Level VI hearing impairment in the Veteran's right ear and Level VIII hearing impairment in his left ear, using Table VI. 38 C.F.R. § 4.85. Based on the mechanical application derived from Table VII in 38 C.F.R. § 4.85, these levels result in a 40 percent rating. Given these results, the Veteran's bilateral hearing loss has not approximated the criteria for an initial compensable rating prior to August 25, 2020, or a rating in excess of 40 percent on and thereafter. Accordingly, an increased rating for either portion of the appeal period is not warranted. In reaching this decision, the Board does not discount the difficulties the Veteran has with his hearing acuity. However, as noted above, schedular disability ratings for hearing loss are based on a mechanical application of the rating schedule to the numeric designations assigned after audiometric evaluations are performed. Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). The audiometric examination results, when compared to the rating criteria, do not warrant an initial compensable rating prior to August 25, 2020, or a rating in excess of 40 percent on and thereafter. Accordingly, the Board finds that the preponderance of the evidence is against this claim, and it is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990) REASONS FOR REMAND Service connection for a lung disability other than pharyngeal cancer, to include chronic bronchitis and emphysema and to include as due to in-service herbicide exposure Following the development conducted in response to the February 2020 Board remand, the RO issued a new rating decision in March 2021. In that decision, the RO granted service connection for pharyngeal cancer and service connection for dysphagia with aspiration pneumonia. The RO indicated that such was considered a total grant of the benefits sought on appeal; however, the Board disagrees. The Veteran's claim for service connection for a lung disability other than status-post pharyngeal cancer remains on appeal. The Veteran has consistently sought service connection for a lung disability, to include specifically chronic bronchitis and emphysema. Pursuant to the February 2020 Board remand, the Veteran was accorded a VA examination in April 2020. The examiner noted diagnoses of emphysema, chronic bronchitis, and status-post pharyngeal cancer. In providing an opinion, the examiner provided a positive nexus opinion for the Veteran's pharyngeal cancer but did not provide much of an opinion addressing the Veteran's additional disabilities of emphysema and chronic bronchitis. The examiner only noted that there was no documentation found of complaints of or treatment for these conditions during service and they were "unrelated to service." The March 2021 rating decision only included a grant of service connection for pharyngeal cancer. Importantly, the Veteran's claim for service connection for a lung disability other than pharyngeal cancer was not resolved. A remand is necessary to accord the RO an opportunity to issue a Supplemental Statement of the Case (SSOC) for the remaining portion of the Veteran's lung disorder. See Manlincon v. West, 12 Vet. App. 238 (1999). Service connection for a kidney disability, to include as due to in-service herbicide exposure The February 2020 Board remand found that the record does not contain any service treatment records (STRs), despite earlier requests to obtain them. Also, the Board noted that the Veteran had not been accorded a VA examination for his claimed kidney disability. As such, the Board remanded this matter to obtain any outstanding service medical records and VA treatment records, and to obtain a VA examination addressing the nature and etiology of the Veteran's kidney disability. A request to search for records was sent in September 2020, and additional military personnel records were associated with the claims file in October 2020. A response to the request for information dated January 2021 indicated that the requested medical records and personnel file had been sent for upload to the Veteran's claims file. However, no medical records were obtained, and it unclear whether these records have been located but are still awaiting upload, or if the search for records only returned additional military personnel records and no medical records. It is not clear whether the Veteran's STRs have not been located, or if they have been determined to be unavailable. Because it is unclear whether the search for records has been fully completed, the Board finds that there has not been substantial compliance with the February 2020 Board remand and that corrective action is needed, to include conducting another search for the Veteran's service medical records. Stegall, 11 Vet. App. at 271. To date, the RO has not issued a formal finding of unavailability of such records pursuant to 38 U.S.C. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). Consequently, such should be accomplished on remand if the additional search for service medical records is unsuccessful. It is noted that, where service medical records are missing, VA must search alternate sources. Washington v. Nicholson, 19 Vet. App. 362 (2005). If it is determined that the Veteran's service medical records are unavailable, appropriate steps should be taken to request information from the Veteran to search for these records by other means and the Veteran should be informed that he may submit evidence from "alternative" sources in place of the missing service records. Pursuant to the February 2020 Board remand, a VA examination was obtained in April 2020. The examiner noted diagnoses of neoplasm of the kidney, kidney removal, and chronic kidney disease. The examiner opined that it was less likely than not that the Veteran's kidney disabilities were related to his service, because "there [was] no documentation found that the Veteran's kidney disease was due to active service, to include the exposure to tactical herbicide agents." The examiner's circular rationale did not explain why the Veteran's kidney disabilities were not related to his service, to include his conceded in-service herbicide exposure. It is not clear what documentation, or lack thereof, the examiner is referring to, as it was noted above that the Veteran's STRs have not been located. An addendum opinion was obtained in February 2021 and the opinion is largely duplicative of the opinion from the April 2020 VA examination report. The only addition provided by the examiner was that the medical research does not support any etiological link, without any additional information or clarification provided in support of this statement. The Board finds that both the April 2020 VA examination and the February 2021 addendum opinion are inadequate, and as a result, there has not been substantial compliance with the February 2020 Board remand. Stegall, 11 Vet. App. at 271. The rationale provided in support of the opinions was circular in nature and lacking in substance, as the examiner relied on a lack of documentation in providing a negative opinion. The examiner did not appear to consider adequately whether the Veteran's kidney disability may be due to his conceded in-service herbicide exposure. On remand, an additional VA opinion should be obtained to assess the etiology of the Veteran's kidney disability, to include whether such is due to his conceded in-service herbicide exposure. Service connection for hypertension, to include as due to in-service herbicide exposure In addition to the previously noted lack of STRs, the February 2020 Board remand found that the Veteran had not been accorded a VA examination to address whether his hypertension is related to his service. The Board noted that the Veteran reported being treated for high blood pressure during service and that an examination was needed to assess whether the Veteran's hypertension is related to his service and whether or not such was consistent with his assertions of treatment in service. At an April 2020 VA examination, the examiner diagnosed hypertension, which the Veteran reported onset in 1967 with frequent occasions of dizziness. Unfortunately, in addressing the etiology of the hypertension, the examiner provided a very limited and unhelpful opinion. The examiner stated that there was no evidence in the claims file that the hypertension was due, to or caused by, exposure to tactical herbicide agents and that it was less likely than not that the Veteran's hypertension was consistent with his in-service treatment for hypertension. An addendum opinion was obtained in February 2021. The examiner largely duplicated the opinion provided in April 2020, but also indicated that recent studies have found an association between exposure to herbicides and hypertension. However, the examiner also referred to other risk factors present in the Veteran's claims file for the development of hypertension and suggested that the development of the Veteran's hypertension was likely multi-factorial in nature. The examiner did not appear to give adequate consideration as to whether the Veteran's hypertension could have been caused by his in-service herbicide exposure, as the examiner once again relied on the lack of documentation to show that the Veteran's hypertension was due to, or caused by, herbicide exposure. The Board finds that both the April 2020 VA examination and the February 2021 addendum opinion are inadequate, and as a result, there has not been substantial compliance with the February 2020 Board remand. Stegall, 11 Vet. App. at 271. The rationale provided in support of the opinions was lacking in substance and overly reliant on the absence of documentation in providing a negative opinion. The examiner did not appear to consider adequately whether the Veteran's hypertension may be due to his conceded in-service herbicide exposure. On remand, an additional VA opinion should be obtained to assess the etiology of the Veteran's hypertension, to include whether such is due to his conceded in-service herbicide exposure. Of significance in this matter is the fact that the National Academy of Science (NAS) recently released a report entitled Veterans and Agent Orange: Update 11 (2018), wherein it stated that the NAS found sufficient evidence of an association between hypertension and exposure to Agent Orange and other herbicides used during the Vietnam War. This report upgraded the association from its previous classification of having "limited or suggestive" evidence to the category of "sufficient" evidence of an association. According to NAS, "[t]he sufficient category indicates that there is enough epidemiologic evidence to conclude that there is a positive association" between hypertension and herbicide exposure. The Veteran, having served in the Republic of Vietnam during the Vietnam era, is presumed to have been exposed to Agent Orange in service. Clarification of the effect of the Veteran's conceded in-service herbicide exposure on his development of hypertension is necessary. According, these matters are REMANDED for the following action: 1. Follow established procedure for obtaining the Veteran's service treatment records. Such efforts include requesting the records from all potential sources as well as, if appropriate, making a formal finding of their unavailability and notifying the Veteran of alternatives he can submit. 2. Undertake any additional evidentiary development deemed necessary with regard to the claim for service connection for a lung disability other than pharyngeal cancer, to include chronic bronchitis and emphysema and to include as due to in-service herbicide exposure. 3. Also, obtain a VA medical opinion from an appropriate clinician to determine whether his diagnosed kidney disability is related to his military service, to include as due to in-service herbicide exposure. The record must be made available to, and be reviewed by, the VA examiner in conjunction with this evaluation. If deemed necessary, the Veteran should be scheduled for an examination. After reviewing the claims file, the examiner is asked to do the following: Opine whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran's kidney disability(ies) onset in, or is(are) otherwise related to, his military service, to include his conceded in-service herbicide exposure. The examiner is advised that the Veteran is competent to report his symptoms and history and such reports must be acknowledged and considered in formulating any opinion requested herein. Rationale for all opinions expressed must be provided. A clear explanation for all opinions would be helpful, and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. If the examiner is unable to provide an opinion, he or she must explain why. 4. Also, obtain a VA medical opinion from an appropriate clinician to determine whether the Veteran's diagnosed hypertension is related to his military service, to include as due to in-service herbicide exposure. The record must be made available to, and be reviewed by, the VA examiner in conjunction with this evaluation. If deemed necessary, the Veteran should be scheduled for an examination. After reviewing the claims file, the examiner is asked to: Opine whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran's hypertension onset in, or is otherwise related to, his military service, to include as caused by his conceded in-service herbicide exposure. In rendering this opinion, the examiner should consider the NAS 2018 conclusion that hypertension has been upgraded from its previous classification in the category of "limited or suggestive" evidence of an association to the category of "sufficient" evidence of an association. According to NAS, "[t]he sufficient category indicates that there is enough epidemiologic evidence to conclude that there is a positive association" between hypertension and herbicide exposure. The examiner is advised that the Veteran is competent to report his symptoms and history and such reports must be acknowledged and considered in formulating any opinion requested herein. Rationale for all opinions expressed must be provided. A clear explanation for all opinions would be helpful, and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. If the examiner is unable to provide an opinion, he or she must explain why. 5. Finally, readjudicate the issues remaining on appeal, as are listed in the Remand portion on the title page of this current Remand. If any of the benefits sought are not granted in full, furnish the Veteran and his representative with a supplemental statement of the case and an opportunity to respond, and, if appropriate, return the case to the Board. THERESA M. CATINO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Goreham 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.