Citation Nr: 1512217 Decision Date: 03/23/15 Archive Date: 04/01/15 DOCKET NO. 13-10 311 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUES 1. Entitlement to an initial schedular rating in excess of 10 percent for coronary artery disease (CAD). 2. Entitlement to an initial compensable schedular rating for bilateral hearing loss. 3. Entitlement to an initial compensable rating for bilateral hearing loss on an extraschedular basis. 4. Entitlement to an initial rating in excess of 10 percent for CAD on an extraschedular basis. REPRESENTATION Appellant represented by: New Jersey Department of Military and Veterans' Affairs ATTORNEY FOR THE BOARD F. Yankey Counsel INTRODUCTION The Veteran served on active duty in the U.S. Marine Corps from April 1965 to April 1969. This case comes before the Board of Veterans' Appeals (Board) on appeal of rating decisions of the Department of Veterans Affairs (VA) Regional Office and Insurance Center (ROIC) in Philadelphia, Pennsylvania. The Veteran's physical claims file, and electronic records on the Virtual VA and VBMS databases have been reviewed in preparation for this decision. FINDINGS OF FACT 1. Throughout the appeal period, the Veteran's has had, at worst, Level II hearing loss in the right ear and Level III hearing loss in the left ear. 2. The Veteran's CAD is not manifested by chronic congestive heart failure or more than one episode of acute congestive heart failure, workload of 7 METs or less, left ventricular dysfunction with an ejection fraction of 50 percent or less, or evidence of cardiac hypertrophy or dilation. CONCLUSIONS OF LAW 1. The criteria for an initial compensable rating for bilateral hearing loss have not been met. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. § 4.85, Diagnostic Code 6100 (2014). 2. The criteria for a rating in excess of 10 percent for CAD have not been met. 38 U.S.C.A. §§ 1154(a), 1155, 5107(b) (West 2014); 38 C.F.R. § 3.102 , 4.3, 4.7, 4.104, Diagnostic Code 7005 (2014). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2014) defined VA's duty to assist a Veteran in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2014). The claims on appeal arise from disagreement with the initial ratings following the grant of service connection. The courts have held that once service connection is granted, the claim is substantiated, additional VCAA notice 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). The United States Court of Appeals for Veterans Claims (Court) has elaborated that filing a notice of disagreement begins the appellate process, and any remaining concerns regarding evidence necessary to establish a more favorable decision with respect to downstream elements (such as the initial rating) are appropriately addressed under the notice provisions of 38 U.S.C.A. §§ 5104 and 7105. Goodwin v. Peake, 22 Vet. App. 128 (2008). Where a claim has been substantiated after the enactment of the VCAA, the appellant bears the burden of demonstrating any prejudice from defective VCAA notice with respect to the downstream elements. Id. There has been no allegation or evidence of such prejudice in this case. The Duty to Assist The VCAA also requires VA to make reasonable efforts to help a claimant obtain evidence necessary to substantiate his claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c), (d). This "duty to assist" contemplates that VA will help a claimant obtain records relevant to his claim, whether or not the records are in Federal custody, and that VA will provide a medical examination or obtain an opinion when necessary to make a decision on the claim. 38 C.F.R. § 3.159(c)(4). VA has obtained records of treatment reported by the Veteran, including service treatment records and VA and private treatment records. His personal statements have been added to the record as well. No outstanding evidence has been identified that has not otherwise been obtained. VA has also provided the Veteran with VA audiological examinations in May 2008 and August 2014, and VA heart examinations in August 2011 and August 2014, to determine the nature and severity of his disabilities. 38 C.F.R. § 3.159(c)(4). To that end, when VA undertakes to provide an examination or obtain an opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board finds the VA examination reports to be thorough and adequate upon which to base a decision with regard to the Veteran's claims. The VA examiners personally interviewed and examined the Veteran, including eliciting a history from the Veteran, and provided the information necessary to evaluate the Veteran's disabilities under the applicable rating criteria. In addition to dictating objective test results, a VA audiologist must fully describe the functional effects caused by a hearing disability. Martinak v. Nicholson, 21 Vet. App. 447, 455 (2007). The May 2008 examiner noted the Veteran's reports of difficulty hearing in the presence of background noise; the December 2012 examiner noted the Veteran's reports of difficulty hearing the television, missing conversations in groups and restaurants, and having to ask to have things repeated; and the August 2014 examiner noted that Veteran's reports of hearing, but not understanding in certain situations, difficulty hearing in noisy environments, difficulty hearing in group situations, difficulty hearing clearly, and difficulty hearing from a distance. Accordingly, the Board finds that the examiners fully considered the functional effects of his hearing loss. For the reasons set forth above, the Board finds that VA has complied with the VCAA's notification and assistance requirements. The appeal is thus ready to be considered on the merits. General Legal Criteria Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4 (2014). The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C.A. § 1155 ; 38 C.F.R. § 4.1 (2014). Each disability must be considered from the point of view of the Veteran working or seeking work. 38 C.F.R. § 4.2. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In view of the number of atypical instances it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified. Findings sufficiently characteristic to identify the disease and the disability therefrom, and above all, coordination of rating with impairment of function will, however, be expected in all instances. 38 C.F.R. § 4.21 (2014). The evaluation of the same disability under various diagnoses is to be avoided. 38 C.F.R. § 4.14 (2014). However, § 4.14 does not preclude the assignment of separate evaluations for separate and distinct symptomatology where none of the symptomatology justifying an evaluation under one diagnostic code is duplicative of or overlapping with the symptomatology justifying an evaluation under another diagnostic code. Esteban v. Brown, 6 Vet. App. 259, 262 (1994). At the time of an initial rating, separate ratings can be assigned for separate periods of time based on facts found, a practice known as "staged" ratings. Fenderson v. West, 12 Vet.App. 119, 126 (1999). Bilateral Hearing Loss Disability ratings for hearing loss are derived from a mechanical application of the rating schedule to the numeric designations resulting from audiometric testing. See Lendenman v. Principi, 3 Vet. App. 345 (1992); 38 C.F.R. § 4.85 (2014). Evaluations of defective hearing are based on organic impairment of hearing acuity as measured by the results of controlled speech discrimination testing together with the average hearing threshold level as measured by pure tone audiometry tests in the frequencies 1,000, 2,000, 3,000 and 4,000 cycles per second. To evaluate the degree of disability from defective hearing, the revised rating schedule establishes eleven auditory acuity levels from Level I for essentially normal acuity through XI for profound deafness. When the pure tone threshold at each of the four specified frequencies (1,000, 2,000, 3,000 and 4,000 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. When the pure tone threshold is 30 decibels or less at 1,000 hertz, and 70 decibels or more at 2,000 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 Roman numeral. Each ear will be evaluated separately. 38 C.F.R. § 4.86 (2014). Analysis The Veteran was afforded a VA audiological examination in May 2008. The following audiometric findings were reported: Hertz (Hz): 1000 2000 3000 4000 Average Right (db): 15 10 25 45 23.75 Left (db): 20 05 30 60 28.75 Speech audiometry results revealed speech recognition ability of 88 percent in the right ear and 92 percent in the left ear. The diagnosis was mild to moderate sensorineural hearing loss in the right ear and mild to moderately severe sensorineural hearing loss in the left ear. Applying these values to the rating criteria results in a numeric designation of level I in the right ear and Level II in the left ear. See 38 C.F.R. § 4.85, Table VI (2014). Application of the level of hearing impairment in each ear to Table VII at 38 C.F.R. § 4.85 produces a rating of 0 percent. Private treatment records from Princeton Eye & Ear show that the Veteran was given an audiology examination in May 2011. The audiometric findings showed that the Veteran had Level II hearing in the right ear and Level I hearing in the left ear. These results were essentially consistent with those found on VA examination in May 2008; however, there is no indication that a Maryland CNC test was performed to determine speech discrimination. Hence, the test does not meet the requirements of 38 C.F.R. § 4.85 for a valid examination. Under that regulation, speech discrimination must be tested using the Maryland CNC word list. The Veteran was afforded another VA audiological examination in December 2012. The following audiometric findings were reported: Hertz (Hz): 1000 2000 3000 4000 Average Right (db): 20 15 35 55 31.25 Left (db): 20 10 35 60 31.25 Speech audiometry results revealed speech recognition ability of 92 percent in the right ear and 78 percent in the left ear. The diagnosis was bilateral mild to moderate high-frequency sensorineural hearing loss. Applying these values to the rating criteria results in a numeric designation of Level I in the right ear and Level III in the left ear. See 38 C.F.R. § 4.85, Table VI (2014). Application of the level of hearing impairment in each ear to Table VII at 38 C.F.R. § 4.85 again produces a rating of 0 percent. The most recent measurements of the Veteran's hearing ability in the record come from the VA audiological examination conducted in August 2014. The evaluation produced the following audiometric findings: Hertz (Hz): 1000 2000 3000 4000 Average Right (db): 30 20 45 55 37.5 Left (db): 30 25 40 75 42.5 Speech audiometry results revealed speech recognition ability of 92 percent in the right and left ears. The diagnosis was bilateral sensorineural hearing loss from 500-4000 hertz. Applying these values to the rating criteria results in a numeric designation of Level I in the right and left ears. See 38 C.F.R. § 4.85, Table VI (2014). Application of the level of hearing impairment in each ear to Table VII at 38 C.F.R. § 4.85 produces a rating of 0 percent. Accordingly, there has been no point in the appeal period when the disability met or approximated the criteria for a compensable rating. The Board has considered whether a "staged" rating is appropriate. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). The record, however, does not support assigning different percentage disability ratings during the period in question. 38 U.S.C.A. § 5107(b) (West 2014); 38 C.F.R. § 4.7, 4.21 (2014). Coronary Artery Disease (CAD) The Veteran's service-connected coronary artery disease is currently rated at 10 percent under Diagnostic Code (DC) 7005. Under this diagnostic code, a rating of 10 percent is assigned when a workload of greater than 7 METs but not greater than 10 METs results in dyspnea, fatigue, angina, dizziness, or syncope or where continuous medication is required. A 30 percent rating contemplates a workload of greater than 5 METs, but not greater than 7 METs, which results in dyspnea, fatigue, angina, dizziness or syncope, or evidence of cardiac hypertrophy or dilatation on electrocardiogram, echocardiogram or X-ray. A 60 percent rating contemplates more than one episode of acute congestive heart failure in the past year, or workload of greater than 3 METs, but not greater than 5 METs, which results in dyspnea, fatigue, angina, dizziness or syncope, or; left ventricular dysfunction with an ejection fraction of 30 percent to 50 percent. Finally, a 100 percent rating contemplates documented coronary artery disease (DC 7005) or myocardial infarction (DC 7006) resulting in chronic congestive heart failure, or; workload of 3 METs or less, resulting in dyspnea, fatigue, angina, dizziness or syncope, or; left ventricular dysfunction with an ejection fraction of less than 30 percent. 38 C.F.R. § 4.104, DC 7005. One MET (metabolic equivalent) is defined as the energy cost of standing quietly at rest and represents an oxygen uptake of 3.5 milliliters per kilogram of body weight per minute. When the level of METs at which dyspnea, fatigue, angina, dizziness, or syncope develops is required for evaluation, and a laboratory determination cannot be done for medical reasons, an estimation by a medical examiner of the level of activity (expressed in METs and supported by specific examples, such as slow stair climbing or shoveling snow) that results in dyspnea, fatigue, angina, dizziness, or syncope may be used. 38 C.F.R. § 4.104, Note (2). Analysis The Veteran was afforded a VA examination in August 2011, in response to his claim for service connection for a heart condition. The Veteran reported that he was hospitalized after a near syncopal (fainting) episode in December 2009, and following his hospitalization, he underwent a cardiac catheterization, which revealed mild stenosis of the left anterior descending artery (50 percent stenosis in the mid left anterior descending artery). He denied a history of congestive heart failure, and denied any symptoms of dyspnea, fatigue, angina, dizziness, or near syncope. On physical examination, his cardiac workload was estimated at 9 to10 METs, and it was noted that his left ventricular ejection fraction was 60 percent at the time of the December 2009 study. The examiner diagnosed non-ischemic 1 vessel coronary artery disease in the mid left anterior descending artery (50 percent stenosis). In a November 2011 rating decision, the RO granted service connection for coronary artery disease of the mid anterior descending artery due to Agent Orange exposure. An evaluation of 10 percent was assigned, under Diagnostic Code 7005, effective August 31, 2010. The Veteran was afforded another VA examination in December 2012 by the same examiner who evaluated him in August 2011. He denied cardiac symptoms of dyspnea, fatigue, angina, dizziness, or near syncope. He denied a history of percutaneous coronary intervention with stent placement. He denied a history of coronary artery bypass graft surgery, a history of heart valve replacement surgery, or a history of myocardial infarction. He also denied a history of congestive heart failure. The Veteran's cardiac workload was estimated at 9 to 10 METs, and the examiner again noted that his left ventricular ejection fraction was reported as 60 percent on the cardiac catheterization study in December 2009. The examiner concluded that the Veteran's 1-vessel ischemic heart disease had remained clinically unchanged since his last evaluation in August 2011. The Veteran underwent his most recent VA examination in August 2014. The Veteran denied any symptoms at that time. He reported that he had a stress echocardiogram in July 2013, which reported excellent exercise capacity with cardiac work load of 12 METs and left ventricular ejection fraction of 70 percent, and was negative for reversible ischemia. The examiner noted that there was no history of myocardial infarction, congestive heart failure, arrhythmia, heart valve conditions, infectious heart conditions, or pericardial adhesions. There was also no evidence of any cardiac hypertrophy or cardiac dilation. Having reviewed the complete record, the Board finds that the evidence does not support the criteria for an initial rating in excess of the current 10 percent for CAD under DC 7005. During the appeal period, there has been no evidence of any acute episodes of congestive heart failure to warrant a 60 percent rating under DC 7005, or a diagnosis of chronic congestive heart failure to warrant the maximum rating under such code. A higher rating is also not warranted based on the METs findings, as there is no probative evidence of a workload of 7 METs or less. There is also no evidence that the Veteran's left ventricular ejection fraction ever fell below 60 percent during the pendency of this appeal. Furthermore, there is no evidence of cardiac hypertrophy or dilation on electrocardiogram, echocardiogram, or X-ray. In sum, there is no credible evidence of any congestive heart failure or left ventricular dysfunction with an ejection fraction of 50 percent or less. Moreover, there is no evidence that the Veteran's coronary artery disease is productive of a workload of 7 METs or less resulting in dyspnea, fatigue, angina, dizziness, or syncope, and no evidence of cardiac hypertrophy or dilation. The Board also notes that outpatient treatment records from the VA Medical Center in Philadelphia, private treatment records from Princeton Longevity Center, and private treatment records from Saint Mary Medical Center (including December 2009 test results), do not show that the Veteran meets the criteria for a rating in excess of 10 percent under DC 7005, at any time during the appeal period. In addition to the medical evidence, the Board has also considered the Veteran's personal statements, including his report during his August 2011 examination that he had a syncopal episode in 2009, and his reports in his February 2013 VA Form 9, that he is not able to do things he used to do because he is out of breath or fatigued due to his heart disease, and that his CAD medication has been increased. The Board acknowledges that the Veteran, in advancing this appeal, believes that the disability on appeal has been more severe than the assigned disability rating reflects. In this regard, the Court has held that a claimant is competent to attest to factual matters of which he or she has first-hand knowledge. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). However, although the Veteran is competent to report what comes to him through his senses, there is no evidence that he has medical knowledge or training that would permit him either to determine the severity of a complex medical condition, such as CAD. See Layno v. Brown, 6 Vet. App. 465, 469-70 (1994). As such, although the Board acknowledges the Veteran's belief that his current disease is of greater severity than the 10 percent disability rating contemplates, his statements in this regard are not deemed competent with regard to the criteria for evaluating his heart disability. ORDER Entitlement to an initial schedular rating greater than 10 percent for coronary artery disease is denied. Entitlement to an initial compensable schedular rating for bilateral hearing loss is denied. REMAND The Board notes that the United States Court of Appeals for the Federal Circuit (Federal Circuit) recently issued a decision, Johnson v. McDonald, in which they rejected VA's interpretation that 38 C.F.R. 3.321(b)(1) only contemplates that referral for extraschedular consideration be made on an individual basis for each service-connected disability to determine if the disability picture rendered the schedular evaluation inadequate, and not on a collective basis. Johnson v. McDonald, 762 F.3d 1362 (Fed.Cir. 2014). In Johnson, the Federal Circuit determined that extraschedular consideration required consideration of the "collective impact" of the Veteran's service-connected disabilities in assessing the disability picture and whether it rendered the schedular criteria inadequate such that referral to the Director of the VA Compensation and Pension Service for extra-schedular consideration under 38 C.F.R. § 3.321(b)(1) is warranted. In the present case, the Veteran is service-connected for post-traumatic stress disorder (PTSD) and tinnitus, in addition to his heart disability and bilateral hearing loss. Accordingly, in light of Johnson, the Board has determined that a remand is appropriate so that the RO can determine if referral for an extraschedular evaluation is warranted. Accordingly, the case is REMANDED for the following action: 1. In accordance with the decision in Johnson v. McDonald, 762 F.3d 1362 (Fed.Cir. 2014), the RO should determine if referral to the Director of Compensation Service for extraschedular consideration under 38 C.F.R. § 3.321(b)(1) is necessary based on the collective impact of the Veteran's service-connected disabilities on his disability picture and whether it renders the schedular evaluations inadequate. If the RO determines that referral is necessary, such referral should be made. 2. Then readjudicate the claim. If this benefit is not granted, the Veteran must be furnished a supplemental statement of the case and given an appropriate opportunity to respond. The case should then be returned to the Board for further consideration. 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. 2013). ____________________________________________ GAYLE E. STROMMEN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs