Citation Nr: 1751173 Decision Date: 11/08/17 Archive Date: 11/17/17 DOCKET NO. 09-37 397A ) DATE ) ) Received from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for a heart disability, claimed as coronary artery disease, secondary to a service-connected anxiety disorder. 2. Entitlement to a rating in excess of 10 percent prior to October 25, 2016 for bilateral hearing loss. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD T. Carter, Counsel INTRODUCTION The Veteran served on active duty in the United States Army from April 1944 to December 1945. This case comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas and St. Petersburg, Florida. During the course of the appeal, the claims file was transferred to the RO in St. Petersburg, Florida. In August 2016, the Veteran testified at a Travel Board hearing at the RO in St. Petersburg, Florida before the undersigned Veterans Law Judge (VLJ). Regrettably, due to technical difficulties, a transcript of the hearing could not be produced. The Veteran was sent a letter in January 2017, which offered him the opportunity to testify at another hearing. The letter indicated that if there was no response received, the Board would assume that the Veteran did not want another hearing and proceed accordingly. The Veteran did not respond to this letter, as such, the Board will proceed with appellate review. In July 2017 the Board, in part, granted a rating of 50 percent since October 25, 2016 for bilateral hearing loss and remanded the issues of entitlement to a rating in excess of 10 percent for bilateral hearing loss prior to October 25, 2016 and service connection for a heart disability for additional evidentiary development. The case has been returned to the Board for appellate review. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2016). 38 U.S.C.A. § 7107(a)(2) (West 2014). The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). REMAND As noted above, the issues on appeal were remanded by the Board in July 2017. The AOJ obtained and associated with the claims file outstanding VA treatment records from Texas dated from July 1998 to October 2012 and from Florida dated from November 2012 to May 2017. Nevertheless, as of this date, the remaining requested development in that remand has not been completed. "[A] remand by this Court or the Board confers on the veteran or other claimant, as a matter of law, a right to compliance with the remand orders." Stegall v. West, 11 Vet. App. 268, 271 (1998). As such, compliance with the terms of the July 2017 remand is necessary prior to appellate review, and if not, "the Board itself errs in failing to ensure compliance." Id. Accordingly, the remaining directives in the July 2017 remand must be enacted by the AOJ. The narrative below is the narrative from the July 2017 remand. Heart Disability The Veteran contends that his heart disability is secondary to his service-connected anxiety disorder. His clinical records, as well as an October 2009 letter from his physician and a July 2010 VA examination, show that he was diagnosed with and currently has coronary artery disease. As noted earlier, the Veteran was granted service connection for an anxiety disorder, so he has fulfilled the requirement for having a service-connected disability. However, further development is needed to determine whether there is a nexus between his coronary artery disease and his service-connected anxiety disorder. In August 2008, the Veteran's private physician, Dr. M., submitted a letter indicating that the Veteran had coronary artery disease, status post stent replacement, and that his anxiety attacks had increased, and now occurred about two times a week. In a subsequent October 2009 letter, the Veteran's physician, Dr. P., submitted a letter indicating that the Veteran's coronary artery disease could have been exacerbated or worsened by his chronic anxiety disorder. Another physician, Dr. S., indicated in a February 2010 letter, that the Veteran's recent coronary artery bypass graft could have exacerbated his anxiety since the Veteran was having nightmares and seemed more anxious than usual. These opinions are speculative, and do not provide sufficient support of a nexus between the Veteran's coronary artery disease and his service-connected anxiety disorder. The letter from Dr. P only indicates that coronary artery disease "could have" been associated with the Veteran's chronic anxiety disorder. Furthermore, the opinion from Dr. S. indicates the reverse, that coronary artery disease may have exacerbated the Veteran's anxiety disorder, but does not provide information regarding the effect that the service-connected anxiety disorder had on the Veteran's heart disability. Similarly, the July 2010 VA examination is also insufficient. The VA examiner opined that it was less likely than not that the Veteran's coronary artery disease was related to his anxiety disorder. In support of the opinion, the examiner explained that PTSD was not a recognized cause of coronary artery disease, and that there was no credible evidence in the medical literature linking anxiety to coronary artery disease. However, the Veteran later submitted numerous medical articles in support of his claim, including an article from the VA National Center for PTSD, which noted that there was evidence linking anxiety to cardiovascular morbidity and mortality, although the mechanisms are unknown. Thus, because the examiner's rationale is called into question by the medical literature submitted by the Veteran, which finds a relationship between PTSD and cardiovascular diseases, an addendum opinion is needed which adequately addresses this medical literature. Bilateral Hearing Loss As noted above, in August 2015, the Veteran underwent an audiological evaluation at the Daytona Beach Outpatient Center. The audiogram results were not included in the VA clinical record. The record only indicated that the word recognition score was 56 percent for the left ear, and 48 percent for the right ear. No information was provided regarding the type of word list used for the word recognition evaluation. There was also no information providing regarding the pure tone thresholds for each ear measured at different frequencies. There are specific criteria for rating a bilateral hearing loss disability. Those criteria provide that an examination for hearing impairment "must include a controlled speech discrimination test (Maryland CNC)." 38 C.F.R. § 4.85(a) (2016). The United States Court of Appeals for Veterans Claims (the Court) has given specific guidance to VA in this situation. If it is not clear from the examination report whether the Maryland CNC word list was used, the answer to this question cannot otherwise be determined, and the report is relevant to the disposition of the claim, the report must be returned for clarification. Savage v. Shinseki, 24 Vet. App. 259 (2012) (citing 38 C.F.R. §§ 4.2, 19.9(a)). Consequently, a remand is required to determine whether the Daytona Beach Outpatient Center used the Maryland CNC word list to obtain the speech recognition scores. The record also indicated that the audiogram from the evaluation was available under a separate folder which had not been associated with the record. Given that the Veteran had asserted that his hearing worsened prior to the October 25, 2016 VA examination, the August 2015 clinical records are relevant to determining the severity of the Veteran's hearing loss disability. Thus, a remand is also necessary to obtain those records. Furthermore, during the August 2015 audiological evaluation, the Veteran also reported that he felt an imbalance which may have been caused by his inner ears. As this symptom is not contemplated by the rating criteria for bilateral hearing loss, and may reflect a separate hearing disability, a remand is necessary to determine whether the Veteran has a separate hearing disability. Accordingly, the case is REMANDED for the following actions: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. Obtain and associate with the claims file the complete record of the Veteran's August 13, 2015 audiology evaluation at the Daytona Beach Outpatient Center, specifically the audiogram results. 2. Then, request an addendum opinion from the audiologist who performed the August 2015 audiology evaluation. Specifically, the audiologist should state whether the speech recognition scores for the August 2015 audiological evaluation were determined using the Maryland CNC list or another list. The audiologist should also specify whether the imbalance noted in the August 2015 record is indicative of a separate hearing loss disability, and if it is indicative of a separate hearing loss disability, whether further examination is necessary to determine the nature and etiology of such a disability. If the audiologist determines a separate examination is needed, the Veteran should be scheduled for a separate audiology evaluation which specifically addresses the Veteran's symptom of imbalance, and any other related symptoms. If the audiologist who performed the August 2015 evaluation is unavailable, this should be noted in the record, and a separate audiologist should be contacted to provide the addendum opinion. If the information requested above cannot be obtained, such should be noted in the record. 3. Request an addendum opinion which addresses the etiology of the Veteran's heart disability. Specifically, the examiner should address the following: (a) Whether it is at least as likely as not (50 percent or greater probability) that the Veteran's heart disability, claimed as coronary artery disease, is caused by, proximately due to, or the result of service or service-connected disabilities, including a service-connected anxiety disorder. In formulating this opinion, the examiner should also address the medical literature submitted by the Veteran, including the article from the VA National Center for PTSD. (b) Whether it is at least as likely as not (50 percent or greater probability) that the Veteran's heart disability, claimed as coronary artery disease, was aggravated beyond the normal progress of the disease by his service-connected disabilities, including his service-connected anxiety disorder. The term "aggravation" means a permanent increase in the claimed disability; that is, an irreversible worsening of the condition beyond the natural clinical course and character of the condition due to the service-connected disability, as contrasted to a temporary worsening of symptoms. The examiner must provide a complete rationale which includes, if possible, support from applicable medical and scientific principles. If the examiner feels that the requested opinion cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). 4. Then, readjudicate the claims. If any decision is adverse to the Veteran, issue a Supplemental Statement of the Case and allow the applicable time for response. Then, return the case to the Board. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims 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 2014). _________________________________________________ ROBERT C. SCHARNBERGER Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2016).