Citation Nr: 18142241 Decision Date: 10/15/18 Archive Date: 10/15/18 DOCKET NO. 15-30 721 DATE: October 15, 2018 ORDER Service connection for bilateral hearing loss is granted. Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU) is granted. REMANDED Entitlement to an initial rating in excess of 60 percent for coronary artery disease status post-acute myocardial infarctions (hereinafter “heart disability”) is remanded. FINDINGS OF FACT 1. The Veteran was exposed to loud noise while on active duty. 2. Symptoms of the Veteran’s current bilateral hearing loss for VA purposes have been continuous since separation from active duty. 3. The Veteran’s service-connected heart disability renders him unable to obtain or retain substantially gainful employment. CONCLUSIONS OF LAW 1. With resolution of reasonable doubt in the Veteran’s favor, the criteria for entitlement to service connection for bilateral hearing loss have been met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303(b), 3.309(a), 3.385 (2018). 2. With resolution of reasonable doubt in the Veteran’s favor, the criteria for entitlement to a TDIU have been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 3.102, 3.340, 3.341(a), 4.16, 4.25 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Air Force from November 1951 to November 1977. 1. Entitlement to service connection for bilateral hearing loss Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty in the active military, naval, or air service. 38 U.S.C. §§ 1110, 1131. An injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b); see Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (holding that the provisions of 38 C.F.R. § 3.303(b) apply only for the specific chronic diseases listed in 38 C.F.R. § 3.309(a)). Hearing loss is an organic disease of the nervous system, which is recognized by VA as a chronic disability. 38 C.F.R. § 3.309(a); Walker, 708 F.3d at 1338; see also Cromley v. Brown, 7 Vet. App. 376, 378 (1995). For the purposes of applying the laws administered by VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz 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 Veteran has a current diagnosis of bilateral hearing loss for VA purposes during the appeal period. As noted in a January 2013 VA Disability Benefits Questionnaire (DBQ) audiological examination report, the Veteran’s bilateral auditory thresholds at the 2000, 3000, and 4000 Hertz ranges were over 40 decibels. See 38 C.F.R. § 3.385. The Veteran is competent to report that he was exposed to loud noise (acoustic trauma) to both ears in service, and his assertion is credible. Such contentions were consistently made during the course of the appeal in a February 2012 VA Form 21-4138 (Statement in Support of Claim), October 2013 VA Form 21-0958 (Notice of Disagreement), October 2013 and November 2013 personal statements, August 2015 VA Form 9 (Substantive Appeal), at the January 2013 VA DBQ audiological examination, and at his hearing before the undersigned. Following the January 2013 VA DBQ examination, the examiner explained why an opinion regarding the etiology of the Veteran’s hearing loss could not be provided without resorting to speculation. Additionally, the Board notes that the Veteran submitted private medical statements dated in September 2013 and August 2015 from Dr. P. B. who provided speculative conclusions as to the etiology of the Veteran’s bilateral hearing loss. Medical evidence that is speculative, general, or inconclusive in nature cannot support a claim. See Obert v. Brown, 5 Vet. App. 30, 33 (1993); see Warren v. Brown, 6 Vet. App. 4, 6 (1993). Nevertheless, since review of the evidentiary record does not show chronicity of bilateral hearing loss in service, his consistent and credible post-service contentions of having continuous symptoms of this disability after discharge from service supports the claim on appeal. Specifically, the Veteran asserted having continuous symptoms of hearing difficulty at the October 2018 Board hearing. For the reasons and bases discussed above and after resolving all reasonable doubt in favor of the Veteran, the Board finds that the Veteran has a current disability of bilateral hearing loss for VA purposes, exposure to loud noise while in service, and symptoms of this chronic disability have been continuous after discharge from service. As a result, service connection is warranted for bilateral hearing loss. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 3.303(b). 2. Entitlement to a TDIU Basic eligibility for a TDIU is established where there is one disability rated 60 percent or more, or multiple disabilities rated at least a combined 70 percent, with one disability rated at least 40 percent. See 38 C.F.R. §§ 3.340, 3.341, 4.16(a). Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155. During the course of the appeal, the Veteran has been service connected for a heart disability at 60 percent effective from November 30, 2010; residual scar of coronary artery bypass surgery at 0 percent effective from November 21, 2013; and bilateral hearing loss (as granted in this decision discussed above). The Board finds the Veteran’s combined schedular disability rating is for consideration of a TDIU on a schedular basis. See 38 C.F.R. § 4.16(a). Review of the record includes the following pertinent evidence. In November 2012, the Veteran initially submitted a completed VA Form 21-8940 requesting entitlement to a TDIU. He reported, in part, that his bilateral hearing loss and heart disability prevent him from securing or following any substantially gainful occupation. These disabilities affected his full-time employment in October 1989, he last worked full-time in October 1989 as a store keeper, became too disabled to work in October 1989, and has not tried to obtain employment since he became too disabled to work. The Veteran further reported his highest level of education is four years of high school, he received training and education from the Air Force Supply School and Air Force Academy during active service prior to being too disabled to work, and has not received any other education or training since he became too disabled to work. In January 2013, the Veteran completed another VA Form 21-8940 and clarified that he worked as a store keeper for five years from 1984 to 1989 for 40 hours per week. He reported he last worked full-time in June 1989 as a supply manager for the Air Force and became too disabled to work in June 1989. He also noted that he left his last employment because too weak after heart attack in 1985, angioplasty in 1985 and 1991, triple bypass in 2005, and stenosis in 2009. In an August 2013 VA Form 21-4138, the Veteran reported he has a very weak heart and does not have the stamina to work due to health and age issues. In November 2013, the Veteran submitted an additional VA Form 21-8940 noting that he left his last employment because of ischemic heart disease, COPD, chest pains, and hearing loss. In the August 2015 VA Form 9, the Veteran further noted he is unable to be gainfully employed even at sedentary occupations. In November 2011, the Veteran submitted a June 2011 private DBQ examination report for ischemic heart disease which documented the Veteran is retired, his heart disability impacts his ability to work, and light activity causes fatigue and shortness of breath. In January 2013 and February 2014, the Veteran underwent VA DBQ examinations for ischemic heart disease. Following clinical evaluation, the VA examiners concluded the Veteran’s heart disability impacts his ability to work. Specifically, in January 2013, a VA examiner explained the following: [The] Veteran worked as a storekeeper. This involves lifting, moving heavy boxes of groceries. He would now be unable to do this or other physically demanding job duties due to shortness of breath and fatigue with this exertion. [However,] [t]he Veteran should be capable of performing sedentary work [because] this did not require frequent or prolonged walking, lifting heavy objects or other activities that would aggravate cardiovascular conditions. “[W]hen the Board conducts a TDIU analysis, it must take into account the individual veteran’s education, training, and work history.” Pederson v. McDonald, 27 Vet. App. 276, 286 (2015). Review of the evidentiary record shows the Veteran’s highest level of completed education was four years of high school, his prior work history during service included assignments as a supply specialist clerk and material control clerk, and his prior work history after separation from service included employment as a store keeper until 1989. Moreover, the Board finds that the Veteran has provided credible testimony throughout the appeal period regarding the functional impact of his service-connected heart disability. As a result, the Board finds that the most probative evidence of record, particularly his educational and occupational history, indicates that the Veteran’s service-connected heart disability as likely as not renders him unable to obtain or retain substantially gainful employment consistent with his education and occupational history as a store keeper. Accordingly, with resolution of reasonable doubt in his favor, the issue of entitlement to a TDIU is granted. See 38 C.F.R. §§ 3.102, 4.16. REASONS FOR REMAND 1. Entitlement to an initial rating in excess of 60 percent for heart disability In an April 2013 VA rating decision, the issue of entitlement to service connection for coronary artery disease was granted, assigned at 60 percent disabling, effective from November 30, 2011. In an October 2013 VA Form 21-0958, the Veteran expressed disagreement with the assigned 60 percent disability rating. In an April 2014 VA rating decision, the Agency of Original Jurisdiction (AOJ) assigned an earlier effective date of November 30, 2010 for the 60 percent disability rating. In an August 2015 VA Form 9, the Veteran reiterated his disagreement and worsening of his service-connected heart disability. In light of the Veteran’s expressed disagreement within one year of the April 2013 VA rating decision, review of the record does not show the AOJ has issued a statement of the case (SOC) for the issue of entitlement to an initial rating in excess of 60 percent for heart disability nor is there any indication of record that additional development has been completed pursuant to this issue. As such, this issue is remanded for issuance of a SOC as of this date. Manlincon v. West, 12 Vet. App. 238, 240-241 (1999). The matter is REMANDED for the following action: Issue a SOC addressing the issue of entitlement to an initial rating in excess of 60 percent for heart disability. A timely perfected appeal must be filed to vest the Board with appellate jurisdiction over the claim. Otherwise the appeal may be closed by the AOJ. D. Martz Ames Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD T. Carter, Counsel