LEUKOPENIA

ROMINA A. CASADEI · 2022 · Case ID: 22061640

MIXED

Summary

The veteran, who served honorably in the U.S. Army from April 1966 to March 1968, including service in Vietnam, appeals the denial of service connection for a hematologic disorder (leukopenia, neutropenia, anemia) and the denial of an increased rating for bilateral hearing loss. Regarding the hematologic disorder, the veteran claimed it was due to herbicide exposure. The Board noted that the claimed conditions are not presumptive under 38 C.F.R. § 3.309(e) for herbicide exposure. While the veteran submitted private treatment records, they did not contain a nexus opinion. A VA examiner in February 2022 opined the disorder was of unknown etiology and found no evidence of a hematologic diagnosis consistent with herbicide exposure, assigning this opinion greater weight. Service connection for the hematologic disorder was denied. For bilateral hearing loss, the Board reviewed multiple audiological evaluations. The March 2012 VA exam was given less weight due to inadequate description of functional effects. The June 2017 exam had flawed speech recognition testing but indicated increased impairment. The December 2020 exam, showing an 80 percent evaluation, was found probative and consistent with the veteran's lay statements. A January 2022 exam showed a lower evaluation but also had flawed speech recognition testing. Resolving doubt in the veteran's favor, the Board granted an 80 percent rating for bilateral hearing loss for the appeal period from March 17, 2011, to December 9, 2020, finding this higher evaluation more representative of the disability. An increased rating beyond 80 percent was denied.

Rationale

No presumptive service connection for hematologic disorder due to herbicide exposure.; VA examiner found no etiology or nexus to herbicide exposure.; Private treatment records lacked necessary nexus opinion.

Service Branch

ARMY

Special Benefit

NO SPECIAL BENEFIT

Docket No.

14-38 400

Full Decision Text

Citation Nr: 22061640
Decision Date: 11/02/22 Archive Date: 11/02/22

DOCKET NO. 14-38 400
DATE: November 2, 2022

ORDER

Entitlement to service connection for a hematologic disorder, to include leukopenia, neutropenia, and anemia as due to exposure to herbicide agents, is denied.

For the appeal period from March 17, 2011 to December 9, 2020, a rating of 80 percent but no higher for bilateral hearing loss is granted.

For the entire period on appeal, a rating in excess of 80 percent for bilateral hearing loss is denied.

FINDINGS OF FACT

1. The evidence weighs against a finding that the Veteran's diagnosed hematologic disorder is related to service, to include as a result of his presumed exposure to herbicide agents during Vietnam service.

2. For the appeal period from March 17, 2011 to December 9, 2020, the Veteran's bilateral hearing loss was manifested by Level XI hearing impairment in the right ear and Level IX in the left ear on qualifying testing adequate for VA rating purposes.

3. For the entire period on appeal, the Veteran's bilateral hearing loss has not manifested by a level greater than a Level XI hearing impairment in the right ear or by a level greater than a Level IX in the left ear on qualifying testing adequate for VA rating purposes.

CONCLUSIONS OF LAW

1. The criteria to establish service connection for a hematologic disorder have not been met. 38 U.S.C. §§ 1110, 5103, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309.

2. For the appeal period from March 17, 2011 to December 9, 2020, the criteria for rating for an 80 percent rating, but no higher, for bilateral hearing loss are met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.102, 4.85, Diagnostic Code 6100.

3. For the entire rating period on appeal, the criteria for rating in excess of 80 percent for bilateral hearing loss are not met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.102, 4.85, Diagnostic Code 6100.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served honorably in the U.S. Army from April 1966 to March 1968, including service in the Republic of Vietnam.

This matter comes to the Board of Veterans' Appeals (Board) from a September 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) and has been advanced on the docket pursuant to 38 U.S.C. § 7107(a)(2) and 38 C.F.R. § 20.900(c). A prior Board remand required further development of the claims on appeal and the matter is now before the Board for adjudication.

As an initial matter, the Board notes that the Veteran initially requested a hearing in this docket and then later withdrew his request. Thus, the Board proceeds accordingly.

Service Connection Laws and Regulations

Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Only chronic diseases listed under 38 C.F.R. § 3.309(a) are entitled to the presumptive service connection provisions of 38 C.F.R. § 3.303(b). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).

Establishing service connection generally requires (1) medical 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) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).

The U.S. Court of Appeals for Veterans Claims (Court) has held that "Congress specifically limits
. § 3.303(b). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).

The U.S. Court of Appeals for Veterans Claims (Court) has held that "Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability. In the absence of proof of a present disability there can be no valid claim." Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); see also Rabideau v. Derwinski, 2 Vet. App. 141, 143-44 (1992).

In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. See Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify").

Generally, the degree of probative value which may be attributed to a medical opinion issued by a VA or private treatment provider considers such factors as its thoroughness and degree of detail, and whether there was review of the claims file. See Prejean v. West, 13 Vet. App. 444, 448-49 (2000). Also significant is whether the examining medical provider had a sufficiently clear and well-reasoned rationale, as well as a basis in objective supporting clinical data. See Bloom v. West, 12 Vet. App. 185, 187 (1999); Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998); see also Claiborne v. Nicholson, 19 Vet. App. 181, 186 (2005) (rejecting medical opinions that did not indicate whether the physicians actually examined the veteran, did not provide the extent of any examination, and did not provide any supporting clinical data). The Court has held that a bare conclusion, even one reached by a health care professional, is not probative without a factual predicate in the record. See Miller v. West, 11 Vet. App. 345, 348 (1998).

When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in approximate balance, with the veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102.

Hematologic disorder

The Veteran contends he is entitled to service connection for a hematologic disorder, to include leukopenia, neutropenia, and anemia. The Veteran further contends, through his timely filed Notice of Disagreement, that this disorder is due to Agent Orange herbicide exposure.

The Veteran has a current hematologic diagnoses of leukopenia, neutropenia, and anemia. See private treatment records dated May 2008 to March 2019; VA treatment records dated February 22, November 2017, and June 2018.

If a veteran was exposed to herbicide agents during active service, presumptive service connection is warranted for certain specified diseases. 38 C.F.R. §§ 3.307, 3.309. A Veteran who served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, will be presumed to have been exposed to an herbicide agent during such service unless there is affirmative evidence to the contrary. 38 C.F.R. § 3.307. The Veteran's hematologic disorders are not presumptive disabilities listed under 38 C.F.R. § 3.309 (e) as associated with exposure to herbicide agents. Therefore, presumptive service connection is not warranted.

Notwithstanding the foregoing presumption provisions, a claimant is not precluded from establishing service connection for a disability due to exposure to herbicide agents with proof of direct causation. Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994).

The Veteran has submitted no evidence (i.e., medical opinion or literature) to support that his diagnosed condition was due to or aggravated by an herbicide agent.

Furthermore, VA obtained a medical opinion in February 2022. In that opinion, the examiner opined that the Veteran's disorder is of unknown etiology. The examiner also opined that "[t]here is currently no evidence of a hematologic diagnosis consistent with herbicide exposure."

The Board assigns probative weight to the February 2022 VA medical opinion report finding of no etiology and no nexus between the Veteran's hematologic disorder and his in-service herbicide exposure. The February 2022 VA examiner provided an opinion that is well supported by an adequate rationale and contains sound reasoning. See Nieves- Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007).

The Veteran, in contrast, has not submitted a medical nexus opinion favorable to his claim. The Veteran did submit private treatment records documenting his diagnoses; however, those records do not provide the necessary nexus opinion between his diagnosed disorder and herbicide exposure.

In deciding this case, the Board recognizes that the Veteran is competent to report his observable symptoms; however, he is not competent to determine that his symptoms are etiologically related to his presumed exposure to herbicide agents in service. Determining the exact nature and etiology of hematologic disorders requires medical knowledge and/or training and specialized testing, which the Veteran is not shown to possess. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). Therefore, the Board assigns greater weight to the probative VA medical opinion of record.

As the evidence of record does not establish that the Veteran's hematologic disorder is related to active service, to include due to herbicide exposure, service connection for a hematologic disorder is not warranted.

Laws and Analysis for Bilateral Hearing Loss Disability Rating

Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities. The percentage ratings are based on the average impairment of earning capacity and individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding a degree of disability will be resolved in favor of the veteran. 38 C.F.R. § 4.3.

In this case, the Board has considered all the evidence of record, lay and medical, as it bears on the issue of rating. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) (lay statements may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability, or symptoms
38 C.F.R. § 4.7. Any reasonable doubt regarding a degree of disability will be resolved in favor of the veteran. 38 C.F.R. § 4.3.

When evaluating service-connected hearing impairment, disability ratings are derived by a mechanical application of the rating schedule to the numeric designations assigned in audiometric evaluations. Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). The Rating Schedule provides rating tables for the evaluation of hearing impairment. Table VI assigns a Roman numeral designation (I through XI) for hearing impairment based on a combination of percent speech discrimination and the puretone threshold average (the sum of the puretone thresholds at 1000, 2000, 3000 and 4000 Hertz, divided by four). 38 C.F.R. § 4.85. Table VII is used to determine the percentage evaluation by combining the Table VI Roman numeral designations for hearing impairment in each ear. 38 C.F.R. § 4.85.

38 C.F.R. § 4.86 provides for exceptional patterns of hearing impairment. When the puretone 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. 38 C.F.R. § 4.86(a). Each ear is evaluated separately. Id. When the puretone 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 from either Table VI or Table VIA, whichever results in the higher numeral. 38 C.F.R. § 4.86(b). That numeral is then elevated to the next higher Roman numeral. Id. Each ear is evaluated separately. Id.

The Veteran is currently in receipt of a 0 percent disability rating under Diagnostic Code 6100 for bilateral hearing loss prior to December 10, 2020. From December 10, 2020, the Veteran has been assigned an 80 percent evaluation. The Veteran essentially maintains that his bilateral hearing loss disability has worsened throughout his appeal and is more severe than what is contemplated by the currently assigned 0 percent rating for the period prior to December 10, 2020.

The evidence of record includes a March 2012 audiological evaluation. At that time, puretone thresholds, in decibels, were as follows:

Hertz Average

1000 2000 3000 4000

Right 10 35 65 60 42.5

Left 10 40 55 80 46.25

Speech audiometry revealed speech recognition ability of 84 percent in the right ear and 72 percent in the left ear. The March 2012 audiometric findings, applied to Table VI, yield a numeric designation of (II) in the right ear (42.5 decibel puretone threshold average, and 84 percent speech discrimination) and a numeric designation of (III) in the left ear (46.25 decibel puretone threshold average, and 80 percent speech discrimination). The numeric designation for the right ear (II) along with the numeric designation for the left ear (III), entered into Table VII, produce a 0 percent evaluation for hearing impairment.

During the March 2012 audiological evaluation, the Veteran reported that "[h]e has difficulty hearing in all situations." Under Martinak v. Nicholson, 21 Vet. App. 447 (2007), "a VA audiologist must fully describe the functional effects caused by a hearing disability in his or her report." Id. at 455 (emphasis added).

Consistent with the Veteran's lay statements during the March 2012 audiological evaluation, the Veteran explained in his Form 9 that this examination did not consider the real-world effects of his hearing disability, which the Veteran described as more acute than the examination indicated. The Veteran also stated in his Notice of Disagreement that his hearing loss is more severe and that he has hearing problems all day, every day. The Board finds the Veteran competent and credible to report what he perceives through his senses; namely, his inability to hear in different environments. See Layno, 6 Vet. App. at 469; see also Jandreau, 492 F.3d at 1376-77.

For the reasons discussed here, the Board finds the March 2012 audiological evaluation did not fully describe the functional effects caused by the Veteran's hearing disability as required by Martinak. Accordingly, the Board attributes less probative weight to the March 2012 examination.

The evidence of record also includes a June 2017 audiological evaluation. At that time, puretone thresholds, in decibels, were as follows:

Hertz Average

1000 2000 3000 4000

Right 20 55 70 80 56.25

Left 20 60 75 95 62.5

However, this evaluation relied on the CIDW-22 test rather than the Maryland CNC test to determine the Veteran's speech recognition ability. "An examination for hearing impairment for VA purposes . . . must include a controlled speech discrimination test (Maryland CNC)[.]" 38 C.F.R. § 4.85(a). As such, the June 2017 audiological evaluation findings cannot be properly applied to Table VI for either ear to determine a proper percent evaluation of hearing impairment. That said, the Board finds that the puretone threshold numbers from this examination reveal a marked increase in hearing impairment since the March 2012 examination. Accordingly, the Board finds the June 2017 examination's puretone threshold numbers probative in determining the Veteran's level of hearing impairment. The Board also finds the June 2017 examination's speech recognition scores inadequate under 38 C.F.R. § 4.85(a) and attribute those scores no probative weight.

The evidence of record also includes a December 2020 audiological evaluation. At that time, puretone thresholds, in decibels, were as follows:

Hertz Average

1000 2000 3000 4000

Right 50 85 100 105+ 85

Left 40 70 85 90 71.25

Speech audiometry revealed speech recognition ability of 85 percent in the right ear and 71.25 percent in the left ear. The December 2020 audiometric findings, applied to Table VI, yield a numeric designation of (XI) in the right ear (85 decibel puretone threshold average, and 32 percent speech discrimination) and a numeric designation of (IX) in the left ear (71.25 decibel puretone threshold average, and 40 percent speech discrimination). The numeric designation for the right ear (XI) along with the numeric designation for the left ear (IX), entered into Table VII, produce an 80 percent evaluation for hearing impairment.

The Board finds that the December 2020 audiological evaluation is consistent with the Veteran's lay statements during his March 2012 audiological evaluation; the Veteran's lay statement expressed in his Form 9 (i.e., that his symptoms are more acute than indicated by examination); as well as the Veteran's lay statement contained in his Notice of Disagreement (i.e., that his hearing loss is more severe and that he has hearing problems all day, every day). As previously noted, the Veteran is competent and credible to report what he perceives through his senses; namely, his inability to hear in different environments. See supra.

For the reasons discussed here, the Board finds that the December 2020 audiological evaluation is highly probative to determining the Veteran's level of hearing impairment.

The evidence of record similarly includes a May 2021 audiological evaluation.

At that time, puretone thresholds, in decibels, were as follows:

Hertz Average

1000 2000 3000 4000
's lay statement contained in his Notice of Disagreement (i.e., that his hearing loss is more severe and that he has hearing problems all day, every day). As previously noted, the Veteran is competent and credible to report what he perceives through his senses; namely, his inability to hear in different environments. See supra.

For the reasons discussed here, the Board finds that the December 2020 audiological evaluation is highly probative to determining the Veteran's level of hearing impairment.

The evidence of record similarly includes a May 2021 audiological evaluation.

At that time, puretone thresholds, in decibels, were as follows:

Hertz Average

1000 2000 3000 4000

Right 45 70 85 95 73.75

Left 30 65 70 90 63.75

However, this evaluation relied on the NU-6 test rather than the Maryland CNC test to determine the Veteran's speech recognition ability. "An examination for hearing impairment for VA purposes . . . must include a controlled speech discrimination test (Maryland CNC)[.]" 38 C.F.R. § 4.85(a). As such, the May 2021 audiological evaluation findings cannot be properly applied to Table VI for either ear to determine a proper percent evaluation of hearing impairment. That said, the Board finds that the puretone threshold numbers from this examination reveal an increase in hearing impairment since the March 2012 examination. Accordingly, the Board finds the May 2021 examination's puretone threshold numbers probative in determining the Veteran's level of hearing impairment. The Board also finds the May 2021 examination's speech recognition scores inadequate under 38 C.F.R. § 4.85(a) and attribute those scores no probative weight.

Further audiological testing was conducted in January 2022. At that time, puretone thresholds, in decibels, were as follows:

Hertz Average

1000 2000 3000 4000

Right 50 65 85 95 73.75

Left 35 65 75 90 66.25

Speech audiometry revealed speech recognition ability of 40 percent in the right ear and 42 percent in the left ear. The January 2022 audiometric findings, applied to Table VI, yield a numeric designation of (IX) in the right ear (73.75 decibel puretone threshold average, and 40 percent speech discrimination) and a numeric designation of (IX) in the left ear (66.25 decibel puretone threshold average, and 42 percent speech discrimination). The numeric designation for the right ear (IX) along with the numeric designation for the left ear (IX), entered into Table VII, produce a 60 percent evaluation for hearing impairment.

During this audiological evaluation, the Veteran again reported he is having hearing difficulty in all circumstances, namely: "Having to turn up [the] TV or radio loud. Hav[ing] [a] hard time listening to friends when we get together. Hav[ing] a hard time when my wife tells me something." As explained above, "a VA audiologist must fully describe the functional effects caused by a hearing disability in his or her report." Martinak, 21 Vet. App. at 455 (emphasis added). The Board finds that the January 2022 audiological evaluation did not fully describe the functional effects caused by the Veteran's hearing disability as required by Martinak.

Further, the Board finds that while the December 2020 exam results shows an 80 percent evaluation for hearing impairment, the January 2022 exam shows a 60 percent evaluation for hearing impairment. Considering these differences, the Board resolves all doubt in the Veteran's favor and finds that the higher evaluation more nearly approximates the Veteran's disability picture. 38 C.F.R. §§ 4.3. 4.7.

The Board also finds that audiologic evaluations of record do not support a higher evaluation greater than 80 percent for hearing impairment. 38 C.F.R. § 4.85, Table VII.

For the foregoing reasons, the Board finds that, for the appeal period from March 17, 2011 to December 9, 2020, a rating of 80 percent but no higher for bilateral hearing loss is warranted. The Board also finds that for the entire rating period on appeal, a rating in excess of 80 percent is not warranted.

Continued on Next Page

Finally, the Court has held that a total disability rating based on individual unemployability (TDIU) is an element of all claims for an increased rating. Rice v. Shinseki, 22 Vet. App. 447 (2009). The evidence of record indicates that the Veteran is retired. See VA treatment records. The Veteran has not contended, and the evidence does not otherwise show, that his disabilities render him unemployable. Thus, entitlement to a TDIU is not for consideration at this time. Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 371 (2017).

Romina A. Casadei

Acting Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board Reif, Melanie A.

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.

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