Citation Nr: 1323995	
Decision Date: 07/29/13    Archive Date: 08/07/13

DOCKET NO.  10-04 353	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Waco, Texas


THE ISSUES

1.  Entitlement to service connection for a heart condition.

2.  Entitlement to an initial compensable rating for left ear hearing loss.


REPRESENTATION

Veteran represented by:	Texas Veterans Commission


ATTORNEY FOR THE BOARD

Laura E. Collins, Associate Counsel

INTRODUCTION

The Veteran served on active duty from March 1944 to April 1947.  His awards include the Combat Infantryman Badge.

These matters are before the Board of Veterans' Appeals (Board) on appeal from a rating decision issued in June 2009 by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas that denied service connection for a heart condition and granted service connection for left ear hearing loss, assigning an initial noncompensable rating for the latter.  In an August 2012 rating decision, the RO granted entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU), effective February 10, 2012.

In his November 2010 substantive appeal, the Veteran requested a hearing before a Veterans Law Judge at the RO.  However, in December 2010 he submitted a withdrawal of that request; thus, his hearing request is deemed withdrawn.

Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012).  38 U.S.C.A. § 7107(a)(2) (West 2002 & Supp. 2012).

The issue of whether to reopen a claim for entitlement to service connection for hypertension, to include as secondary to service-connected posttraumatic stress disorder (PTSD), has been raised by the record.  See VA Form 9, received October 2011.  This issue has not been adjudicated by the Agency of Original Jurisdiction (AOJ).  Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action.  

FINDINGS OF FACT

1.  A heart condition is not shown to be causally or etiologically related to any disease, injury, or incident in service, including as secondary to service-connected PTSD.

2.  Since the grant of service connection, the Veteran has had, at worst, Level VII hearing in the left ear.  His right ear hearing loss is not service-connected.


CONCLUSIONS OF LAW

1.  The criteria for service connection for a heart condition have not been met.  38 U.S.C.A. §§ 1110, 1112, 1131, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310 (2012).

2.  The criteria for a compensable rating for left ear hearing loss have not been met.  38 U.S.C.A. §§ 1154(a), 1155, 5107(b) (West 2002); §38 C.F.R. §§ 3.102, 4.85, 4.86, Diagnostic Code (DC) 6100 (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I.  Duties to Notify and Assist 

The Veteran's claim for increased rating for left ear hearing loss arises from his disagreement with the initial evaluation following the grant of service connection.  Once service connection is granted the claim is substantiated, additional notice under this law is not required, and any defect in the notice is not prejudicial.  Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). 

As to the service connection claim, VA must provide claimants with notice and assistance in substantiating claims for benefits.  38 U.S.C.A. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a).  Proper notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1).

The notice requirements apply to all five elements of a service connection claim, including Veteran status, existence of a disability, a connection between the Veteran's service and the disability, degree of disability, and effective date of the disability.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).  Notice must be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on the claim for VA benefits.  38 U.S.C.A. § 5103(a); Pelegrini v. Principi, 18 Vet. App. 112 (2004).

The Board finds that VA has satisfied its duty to notify.  Specifically, a February 2009 letter, sent prior to the decision on appeal, advised the Veteran of the evidence and information necessary to substantiate his service connection claim and to establish a disability rating and an effective date.  The same letter advised the Veteran of his and VA's respective responsibilities in obtaining the evidence and information.

Relevant to the duty to assist, the Veteran's private treatment records, VA treatment records, and some of service treatment records (STRs) and service personnel records have been obtained and considered.  Regrettably, in March 2009 the National Personnel Records Center indicated that the remainder of the Veteran's STRs and service personnel records were destroyed in the 1973 fire in St. Louis, Missouri, and were therefore unavailable.  The Veteran has not identified any additional relevant outstanding records that have not been requested or obtained.  

The Board acknowledges that the Veteran has not been provided with a VA examination in conjunction with his service connection claim decided below.  However, VA's duty to provide an examination has not been triggered.  See McLendon v. Nicholson, 20 Vet. App. 79 (2006) (holding that a VA examination is only warranted when the medical evidence suggests a nexus but is too equivocal or lacking in specificity to support a decision on the merits); Waters v. Shinseki, 601 F.3d 1274 (2010).  His service and post-service treatment records fail to suggest that he developed heart symptoms during or soon after service, or that his heart conditions are related to any service-connected disability.  In addition, his assertions are merely conclusory generalized lay statements, and the medical evidence of record fails to suggest a nexus.  

In cases for which the evaluation of hearing loss is at issue, an examination for VA purposes must be conducted by a state-licensed audiologist and must include a controlled speech discrimination test (Maryland CNC) and a pure tone audiometry test.  Examinations will be conducted without the use of hearing aids.  38 C.F.R. § 4.85(a).  In addition to dictating objective test results, a VA audiologist must fully describe the functional effects caused by a hearing disability in the final report.  Martinak v. Nicholson, 21 Vet. App. 447 (2007).  Further, in Martinak the Court noted that VA had revised its hearing examination worksheets to include the effect of the Veteran's hearing loss disability on occupational functioning and daily activities.  See Revised Disability Examination Worksheets, Fast Letter 07-10 (Dep't of Veterans Affairs Veterans Apr. 24, 2007); see also 38 C.F.R. § 4.10 (2012).  The Court also noted, however, that even if an audiologist's description of the functional effects of the Veteran's hearing disability was somehow defective, the Veteran bears the burden of demonstrating any prejudice caused by a deficiency in the examination.  

In this case, both the 2009 and 2012 VA examination reports were conducted by audiologists and contain detailed descriptions of the Veteran's subjective complaint of difficulty hearing conversation, as well as related effects on occupational function and daily activities.  Thus, the Board finds that the examinations are adequate.

The Board concludes that all reasonable efforts were made by the VA to obtain evidence necessary to substantiate the Veteran's claims.  Therefore, the Veteran will not be prejudiced as a result of the Board proceeding to the merits of his claims.

II.  Service connection claim

Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service.  38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a).  Service connection may also be granted for any disease diagnosed after discharge, 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).
 
Direct service connection may not be granted without evidence of a current disability, in-service incurrence or aggravation of a disease or injury; and a nexus between the claimed in-service disease or injury and the present disease or injury.  38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.304.  Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004).  

Service connection also may be established for disability that is proximately due to or aggravated by an already service connected disorder.  38 C.F.R. § 3.310.  

Where a Veteran served for at least 90 days during a period of war or after December 31, 1946, and manifests certain chronic diseases, including arteriosclerosis, endocarditis, myocarditis, and cardiovascular-renal disease, to a degree of 10 percent within one year from the date of termination of such service, such disease shall be presumed to have been incurred or aggravated in service, even though there is no evidence of such disease during the period of service.  38 U.S.C.A. §§ 1112; 38 C.F.R. §§ 3.307, 3.309.

When there is an approximate balance of evidence for and against the issue, all reasonable doubt will be resolved in the Veteran's favor.  38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

The Veteran contends that his heart condition is due to service.  In his original claim application, he provided an onset date of 2001 for this disability.  He does not attribute his heart condition to any specific incident of service.  In his original notice of disagreement he stated that he has had heart problems "for years" and in an October 2011 statement he suggested that maybe his service-connected PTSD is why he has had heart problems for years.  Thus, he contends that service connection is warranted.

VA and private treatment records show current diagnoses of coronary artery disease (CAD), history of congestive heart failure (CHF), and atrial fibrillation.  Thus, the Board finds that the Veteran has a current cardiac disability.

The Veteran's STRs are silent for heart complaints.  The induction and separation examination reports both show normal cardiovascular findings, negative chest x-ray, and no diagnoses, history, or treatment of heart problems.  A March 1945 STR also shows normal cardiovascular findings.

Several heart conditions are enumerated diseases under 38 C.F.R. § 3.309(a), including arteriosclerosis, endocarditis, myocarditis, and cardiovascular-renal disease.  The regulation provides that where a Veteran served for at least 90 days during a period of war or after December 31, 1946, as this Veteran did, and the disease manifests to a degree of 10 percent within one year from the date of termination of such service, such disease shall be presumed to have been incurred or aggravated in service, even though there is no evidence of such disease during the period of service.  38 U.S.C.A. §§ 1110, 1112, 1131; 38 C.F.R. §§ 3.307, 3.309.  

Here there is no evidence that any heart condition manifested at all within one year of April 1947, the date of termination of the Veteran's service.  The Veteran reported an onset date of 2001 on his original claim form.  Private treatment records report that a coronary artery stent was placed in 2001, a pacemaker was implanted in 2002, CAD was first diagnosed in 2003, and atrial fibrillation was present by April 2004.  It is unclear when CHF was first diagnosed, but neither the Veteran nor the medical evidence indicates that it predated the Veteran's reported onset date of 2001.  Therefore, his service connection claim for a heart condition must fail on the basis of the presumptive regulations.  

Notwithstanding the foregoing presumption provisions, the United States Court of Appeals for the Federal Circuit has determined that the presumptive service connection procedure does not preclude a Veteran from establishing service connection with proof of actual direct causation.  Combee v. Brown, 34 F.3d 1039, 1044 (Fed. Cir. 1994). 

Direct service connection may not be granted without evidence of in-service incurrence or aggravation of a disease or injury.  There is no evidence of in-service incurrence or aggravation and the Veteran did not cite to any in-service injury or disease.

The Veteran's separation examination report shows normal cardiovascular findings, negative chest x-ray, and no diagnoses, history, complaints, or treatment of heart condition.  The medical evidence of record shows the earliest indication of a heart condition in 2001, more than 50 years after separation from service.  There is no medical evidence suggesting a nexus between the current disability and service, or between the current disability and service-connected PTSD.  

Although the Veteran is competent to provide testimony relating to symptoms or facts of events that are within the realm of his personal knowledge, he is not competent to establish that which would require specialized knowledge or training.  Layno v. Brown, 6 Vet. App. 465 (1994).  Lay evidence may be competent to establish medical etiology or nexus.  Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009).  However, the Board can only give lay evidence the weight to which it is entitled.  A mere conclusory generalized lay statement that a service event or illness caused the claimant's current condition is insufficient.  Waters, supra.

The Board finds that the question regarding the potential relationship between the Veteran's heart conditions and his service to be complex in nature.  Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), the claimant is not competent to provide evidence as to more complex medical questions.  Woehlaert v. Nicholson, 21 Vet. App. 456 (2007).  CAD, CHF, and atrial fibrillation fall outside the realm of common knowledge of a lay person and are diagnosed by medical tests.  There is no evidence that the Veteran has the requisite medical knowledge to administer such tests or interpret the results.  See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007).  Furthermore, he does not appear to possess the medical knowledge to attribute any heart condition to any specific instance of his military service, including his service-connected PTSD.  Therefore, while the Veteran is competent to describe his heart symptoms, he has offered only conclusory statements and is not competent to opine on the complex medical question of etiology.  

As there is no probative evidence of record suggesting a connection between service and the Veteran's heart conditions, or between a heart condition and a service-connected disability, and no evidence of any manifestations or symptoms attributable to heart conditions during service or until many years after his discharge from service, the Board finds no basis to grant service connection.  

The Board finds that the preponderance of the evidence is against the Veteran's claim of entitlement to service connection for heart condition.  Therefore, his claim must be denied.  38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert, supra.

III.  Increased rating claim

Disability evaluations are determined by the application of a schedule of ratings, which is based on the average impairment of earning capacity.  Separate diagnostic codes identify the various disabilities.  38 U.S.C.A. § 1155; 38 C.F.R., Part 4.  Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating.  Otherwise, the lower rating is to be assigned.  38 C.F.R. § 4.7.  The Veteran's entire history is reviewed when making disability evaluations.  See Schafrath v. Derwinski, 1 Vet. App. 589 (1995).  After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran.  38 C.F.R. § 4.3.  

Where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibits symptoms that would warrant different evaluations during the course of the appeal, the assignment of staged ratings is appropriate.  See Fenderson v. West, 12 Vet. App. 119, 126-127 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007).  

The Veteran's service-connected left ear hearing loss disability is currently rated as noncompensably disabling.  He seeks a higher rating, noting that his hearing loss is severe enough to require a hearing aid.

The Board notes that the Veteran's service-connected tinnitus is rated as 10 percent disabling.  Symptoms related to service-connected tinnitus may not be considered while evaluating the service-connected hearing loss.  See 38 C.F.R. § 4.14.  Both the use of manifestations not resulting from service-connected disease or injury and the evaluation of the same manifestation under different diagnoses are to be avoided.  Id.

The RO has rated the Veteran's service-connected left ear hearing loss as noncompensable under the provisions of Diagnostic Code 6100 of the Schedule for Rating Disabilities.  38 C.F.R. § 4.85.  The assignment of a disability rating for service-connected hearing impairment is derived by a mechanical application of the rating schedule to the numeric designations assigned after audiometric evaluations are rendered.  Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992).

Under the VA rating schedule, hearing impairment is evaluated based on audiological testing, including a puretone audiometry test and the Maryland CNC controlled speech discrimination test.  38 C.F.R. § 4.85.  To evaluate the degree of disability from defective hearing, the rating schedule establishes eleven auditory acuity levels from level I for essentially normal acuity through level XI for profound deafness.  38 C.F.R. § 4.85.  Table VI is used to assign a Roman numeral designation for hearing impairment based on a combination of the percent of speech discrimination and the pure tone threshold average.  38 C.F.R. § 4.85(b).  The puretone threshold average is the average of the puretone thresholds, in decibels, at 1000, 2000, 3000 and 4000 Hz, shown on a puretone audiometry test.  38 C.F.R. § 4.85.  Table VII is used to determine the percentage evaluation by combining the Roman numeral designations for hearing impairment for each ear.  38 C.F.R. § 4.85(e).

Under 38 C.F.R. § 4.86, when the puretone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz [Hz]) is 55 decibels or more, the rating specialist will determine the Level designation for hearing impairment from either Table VI or Table VIa, whichever results in the higher numeral. 38 C.F.R. § 4.86(a).  Further, when the average puretone threshold is 30 decibels at 1000 Hz, and 70 decibels or more at 2000 Hz, the rating specialist will determine the Level 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 Level. 38 C.F.R. § 4.86(b).  As an initial matter, the Board finds that an exceptional pattern of hearing under 38 C.F.R. § 4.86 in the context of the Veteran's most recent VA examination has not been shown and that regulation is inapplicable. 

If impaired hearing is service connected in only one ear, as is the case here, in order to determine the percentage evaluation from Table VII, the non-service-connected ear will be assigned a Roman numeral designation for hearing impairment of I.  38 C.F.R. §  4.85(f) (emphasis added).  However, if hearing impairment in the service-connected ear is compensable to a degree of 10 percent or more, compensation is payable for hearing impairment in both the service-connected and non-service-connected ears if hearing impairment in the non-service-connected ear is a disability by VA standards.  38 C.F.R. § 3.383(a)(3).  VA regulations specify that impaired hearing is considered a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent.  38 C.F.R. § 3.385.

The record contains three audiograms.  Pure tone threshold levels, in decibels, were as follows: 

September 2009 

HERTZ
500
1000
2000
3000
4000
RIGHT
40
50
55
70
80
LEFT
45
50
65
75
80

Pure tone threshold levels averaged 63.75 decibels for the right ear and 67.5 decibels for his left ear.  Speech discrimination testing was 68 percent in the right ear and 60 percent in the left ear.  These results correspond to Level VII hearing on the left pursuant to Table VI.  Because the right ear is not service-connected, it must be assigned Level I.  38 C.F.R. § 4.85(f).  Level VII and Level I correspond to a noncompensable evaluation pursuant to Table VII.

December 2009

HERTZ
500
1000
2000
3000
4000
RIGHT
35
45
50
70
80
LEFT
40
45
65
75
80

Pure tone threshold levels averaged 61.25 decibels for the right ear and 66.25 decibels for his left ear.  Speech discrimination testing was 76 percent in the right ear and 68 percent in the left ear.  These results correspond to Level VI hearing on the left pursuant to Table VI.  Again, because the right ear is not service-connected, it must be assigned Level I.  38 C.F.R. § 4.85(f).  Level VI and Level I correspond to a noncompensable evaluation pursuant to Table VII.

July 2012

HERTZ
500
1000
2000
3000
4000
RIGHT
35
40
55
65
75
LEFT
40
50
65
65
75

Pure tone threshold levels averaged 58.75 decibels for the right ear and 63.75 decibels for his left ear.  Speech discrimination testing was 94 percent in the right ear and 88 percent in the left ear.  These results correspond to Level III hearing on the left pursuant to Table VI.  Once more, because the right ear is not service-connected, it must be assigned Level I.  38 C.F.R. § 4.85(f).  Level III and Level I correspond to a noncompensable evaluation pursuant to Table VII.

Based on the results of the audiological evaluations discussed above, and in the absence of any additional medical evidence showing a more severe hearing disability, a compensable evaluation is not warranted.  The Board does not discount the difficulties the Veteran has with his auditory acuity.  However, the Board has no discretion in this matter and must predicate its determination on the basis of the results of the audiology studies of record.  See Lendenmann v. Principi, 3 Vet. App. 345 (1992).  

Moreover, because the hearing impairment in the service-connected ear is not compensable to a degree of 10 percent or more, compensation is not payable for hearing impairment in both the service-connected and non-service-connected ears, even though the hearing impairment in the non-service-connected ear may be a disability by VA standards.  38 C.F.R. § 3.383(a)(3).

VA must also consider whether an extraschedular evaluation under 38 C.F.R. § 3.321(b) should be assigned in the case where the disability has an effect on the Veteran's occupational function and daily activities.  Martinak, 21 Vet. App. at 454-55.  Audiologists' reports as to the effects of hearing loss on occupational functioning and daily activities can support consideration of an extraschedular evaluation.  See Martinak, supra.  The evidence reflects that the 2009 and 2012 examiners reviewed the claims file and considered the Veteran's reports that his hearing loss affected his ability to hear conversations.  In this case, neither the 2009 nor 2012 VA examiners found effects on daily activities.  The July 2009 examiner found significant occupational effects of difficulty with conversational speech, especially in adverse listening conditions.  The 2012 examiner found no significant occupational effects, but stated that there may be difficulty understanding conversation, especially in the presence of excessive background noise.  Thus, the Veteran's hearing loss is manifested by difficulty hearing speech.  The rating criteria contemplate speech reception thresholds and ability to hear spoken words on Maryland CNC testing.  Hence, the rating criteria contemplate the Veteran's symptomatology.  Referral for consideration of an extraschedular rating is therefore not warranted.  Thun v. Peake, 22 Vet. App. 111 (2008). 

Finally, in Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court held that a TDIU claim is part of a claim for a higher rating when such claim is raised by the record or asserted by the Veteran.  Here, the RO has granted entitlement to a TDIU and the Veteran has not expressed disagreement with that decision.

As the preponderance of the evidence is against this claim, the benefit of the doubt doctrine does not apply, and the claim for a compensable disability rating for left ear hearing loss must be denied.  38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert, supra.


ORDER

Service connection for a heart condition is denied.

A compensable rating for left ear hearing loss is denied.



______________________________________________
MICHAEL E. KILCOYNE
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs