Citation Nr: 1321048 Decision Date: 07/01/13 Archive Date: 07/12/13 DOCKET NO. 09-21 633 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for atherosclerotic coronary artery disease. 2. Entitlement to an initial compensable rating for bilateral hearing loss. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD M. Mills, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1971 to December 1972. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a rating decision issued in January 2008 by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. A review of the Virtual VA paperless claims processing system reveals that an electronic copy of a June 2013 Informal Hearing Presentation prepared by the Veteran's representative has been associated with the record. Additional documents associated with the Virtual VA paperless claims processing system are either duplicative of the evidence of record or are not pertinent to the present appeal. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND The law provides that VA shall make reasonable efforts to notify a claimant of the evidence necessary to substantiate a claim and requires VA to assist a claimant in obtaining that evidence. 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159. Such assistance includes providing the claimant a medical examination or obtaining a medical opinion when such an examination or opinion is necessary to make a decision on a claim. 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2012). In a September 2007 statement, the Veteran indicated that from February 1973 to 1978 and from 1983 to present, that he had taken yearly physical examinations at the U.S. Navy NSWC for hearing loss and coronary disease. However, it does not appear that any treatment records from the U.S. Navy NSWC have been associated with the claims file. Therefore, the RO/AMC should attempt to obtain such records. In addition, the Veteran has not been afforded a VA examination in connection with his claim for service connection for atherosclerotic coronary artery disease. In the May 2009 VA Form 9, the Veteran states that the disorder was not diagnosed in service, but that he failed to "pass an EKG" several times during service. The Veteran's service treatment records show that a clinical evaluation of his heart was normal at the time of his September 1970 pre-entrance examination and that his blood pressure reading was 134/80. However, in a September 1970 pre-enlistment report of medical history, the physician noted "chest pains EKG." In a July 1971 disease and allergy questionnaire, the Veteran also marked that he had pains in his chest, but he denied having heart disease and shortness of breath. A clinical evaluation of his heart was normal at the time of his December 1972 separation examination, and his blood pressure reading was 128/80. Private medical records dated in July 2006 note mild coronary artery disease. In December 2006, J.T., M.D. (initials used to protect the Veteran's privacy) reviewed an EKG and found a slight decrease in left ventricular function with a dilated left ventricular cavity. Dr. J.T. noted minimal to mild mitral and tricuspid regurgitation. In January 2007, the Veteran underwent a heart catheterization, and the findings were nonischemic cardiomyopathy with a global reduction of left ventricular function and ejection fraction of 25 percent. Following a January 2007 stress test, A.H., M. D. concluded that the Veteran had defects consistent with ischemia. In February 2007, B.E., M.D. reviewed the results of the Veteran's January 2007 cardiac catheterization and found that the probable etiology of his coronary disease was hypertensive cardiomyopathy. He noted the Veteran was on an Ace inhibitor and prescribed Coreg titration. Another private record notes "angioplasty 2007" under past medical history and indicated that his father had a heart attack prior to age 69. In May 2007, a private physician also diagnosed hypertension, cardiomyopathy, and hyperlipidemia. The Veteran is competent to report his experience and symptoms in service. He is also competent to describe his current symptoms. See Charles v. Principi, 16 Vet. App. 370, 274 (2002) (finding veteran competent to testify to symptomatology capable of lay observation); Layno v. Brown, 6 Vet. App. 465, 469 (1994) (noting competent lay evidence requires facts perceived through the use of the five senses). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). In the case of McLendon v. Nicholson, 20 Vet. App. 79 (2006), the United States Court of Appeals for Veterans Claims (Court) held that an examination is required when (1) there is evidence of a current disability, (2) evidence establishing an "in-service event, injury or disease," or a disease manifested in accordance with presumptive service connection regulations occurred which would support incurrence or aggravation, (3) an indication that the current disability may be related to the in-service event, and (4) insufficient evidence to decide the case. Nevertheless, the evidence of record does not include a medical opinion based on a complete review of the evidence addressing whether the Veteran currently has atherosclerotic coronary artery disease that is related to his military service. 38 C.F.R. § 3.159(c)(4)(i). Therefore, the Board concludes that a VA examination and medical opinion are necessary for the purpose of determining the nature and etiology of the claimed disorder that may be present. Moreover, the Veteran should also be scheduled for an additional VA examination to ascertain the current severity of his service-connected bilateral hearing loss. The Board notes that he was last provided a VA examination in December 2007. Although he has not specifically request a new VA examination, he has stated that his hearing baseline has changed several times. The Board also notes that is has been well over five years since his last examination. Therefore, the Board finds that a more recent VA examination is necessary in this case. Finally, a remand is required for clarification of an April 1998 private audiology report. It is unclear whether the speech discrimination testing was conducted using the Maryland CNC test. See 38 C.F.R. § 4.85(a) (the controlled speech discrimination test administered by a state-licensed audiologist must be the Maryland CNC Test); see also Savage v. Shinseki, 24 Vet. App. 259, 270 (VA may not reject a private audiological evaluation for failure to apply the Maryland CNC Test without first making a diligent effort to determine whether it was applied) Therefore, clarification of this discrepancy should be undertaken on remand. Accordingly, the case is REMANDED for the following action: 1. The RO/AMC should request the Veteran provide the names and addresses of any and all healthcare providers who have provided treatment for his atherosclerotic coronary artery disease and hearing loss. After acquiring this information and obtaining any necessary authorization, the RO/AMC should obtain and associate these records with the claims file. A specific request should be made for authorization to obtain records from the U.S. Navy NSWC where he received yearly physical examinations from 1973 to 1978 and from 1983 to present. 2. The RO/AMC should contact the audiologist who conducted the April 1998 private audiogram. The audiologist should be asked to clarify whether speech discrimination testing was conducted using the Maryland CNC test. All attempts to seek clarification and any response received should be documented in the claims file. 3. After obtaining any additional records identified by the Veteran, he should be afforded a VA examination to determine the nature and etiology of his atherosclerotic coronary artery disease. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran's available service treatment records, post-service medical records, and assertions. It should be noted that the Veteran is competent to attest to factual matters of which he had first-hand knowledge, including observable symptomatology. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. The examiner should state whether it is at least as likely as not the Veteran currently has atherosclerotic coronary artery disease that manifested in service or that is otherwise causally or etiologically related to his military service, including any chest pain and EKG results therein. (The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of conclusion as it is to find against it.) A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. Because it is important "that each disability be viewed in relation to its history [,]" 38 C.F.R. § 4.1, copies of all pertinent records in the appellant's claims file, or in the alternative, the claims file, must be made available to the examiner for review. 4. The Veteran should be afforded a VA examination to ascertain the severity and manifestations of his bilateral hearing loss. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed, including the Maryland CNC test and a puretone audiometry test. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran's service treatment records, post-service medical records, and assertions. The examiner should comment on the severity of the Veteran's service-connected hearing loss and discuss the effect of the disability on his occupational functioning and daily activities. A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. Because it is important "that each disability be viewed in relation to its history [,]" 38 C.F.R. § 4.1, copies of all pertinent records in the appellant's claims file, or in the alternative, the claims file, must be made available to the examiner for review. 5. After completing these actions, the RO/AMC should conduct any other development as may be indicated by a response received as a consequence of the actions taken in the preceding paragraphs. 6. When the development requested has been completed, the case should be reviewed by the RO on the basis of additional evidence. If the benefits sought are not granted, the Veteran and his representative should be furnished a Supplemental Statement of the Case and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. The Veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ____________________________________________ JESSICA J. WILLS Veterans Law Judge, Board of Veterans' Appeals