Citation Nr: 18143105 Decision Date: 10/18/18 Archive Date: 10/17/18 DOCKET NO. 14-30 961 DATE: October 18, 2018 ORDER Entitlement to service connection for bilateral hearing loss is denied. Entitlement to an increased rating for coronary artery disease, in excess of 60 percent, is denied. An increased rating for posttraumatic stress disorder (PTSD) in excess of 30 percent prior to October 24, 2015, and in excess of 50 percent thereafter, is denied; a 50 percent rating is assigned as of October 24, 2015. REMANDED Entitlement to service connection for pulmonary disability including chronic obstructive pulmonary disease (COPD) is remanded. Entitlement to total individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. Bilateral hearing loss disability is not related to active service. 2. Throughout the appeal period, the Veteran’s coronary artery disease was manifested by a workload of greater than 3-5 METS and an ejection fraction of 50-55 percent. 3. Prior to October 24, 2015, the Veteran’s PTSD was manifested by symptoms such as depressed mood, chronic sleep impairment, mild memory loss, irritability, and hypervigilance, approximating occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal). 4. From October 24, 2015, the Veteran’s PTSD was manifested by symptoms such as depressed mood, anxiety, chronic sleep impairment, mild memory loss, flattened affect, disturbance of motivation and mood, and suicidal ideation, all of which are most nearly approximated by occupational and social impairment with reduced reliability and productivity. CONCLUSIONS OF LAW 1. The criteria for service connection for bilateral hearing loss are not met. 38 U.S.C. §§ 1101 , 1112, 1113, 1131, 1137, 5107(b); 38 C.F.R. §§ 3.102 , 3.303(a)-(b), (d), 3.307, 3.309(a). 2. The criteria for an initial evaluation in excess of 60 percent for coronary artery disease are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.3, 4.7, 4.104, Diagnostic Code 7005. 3. The criteria for an increased disability rating for PTSD in excess of 30 percent prior to October 24, 2015, and in excess of 50 percent thereafter, have not been met; the criteria for a 50 percent rating are met as of October 24, 2015. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.3, 4.7, 4.10, 4.21, 4.126, 4.130, Diagnostic Code 9411. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1966 to May 1968. His decorations include the Vietnam Campaign Medal. This matter is before the Board of Veterans’ Appeals (Board) on appeal from April 2012 and November 2015 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia. Service Connection Bilateral hearing loss The Veteran asserts that his present hearing loss is related to noise exposure in Vietnam. Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service. 38 U.S.C. § 1110, 1131. In general, to establish a right to compensation for a present disability, a Veteran must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service - the so-called "nexus" requirement. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009). The issue for the Board is whether the Veteran has a current hearing loss disability that began during service or is at least as likely as not related to an in-service injury or disease. The Veteran has current hearing loss disability. See 38 C.F.R. § 3.385. The question for the Board is whether the Veteran's bilateral hearing loss disability, diagnosed years after service, manifested to a compensable degree in service or within the applicable presumptive period, or whether continuity of symptomatology has existed since service. The Board concludes that, while the Veteran has bilateral sensorineural hearing loss, which is a chronic disease under 38 U.S.C. § 1101 (3); 38 C.F.R. § 3.309 (a), it did not manifest in service or within a presumptive period, and continuity of symptomatology is not established. 38 U.S.C. §§ 1101 (3), 1112, 1113, 1137; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013); 38 C.F.R. §§ 3.303 (b), 3.307, 3.309(a). Of record is a March 2012 VA examination and June 2014 addendum opinion pertaining to the Veteran’s claim for bilateral hearing loss. The examiner opined that the Veteran’s hearing loss was less likely than not related to service, reasoning that although the Veteran was exposed to artillery fire, hearing loss was not noted on his discharge audiogram. Rather, the examiner attributed the Veteran’s hearing loss to the Veteran’s noise exposure in his post-military occupations. During the examination, the Veteran had reported working as a machinist for 9 years with GE and as a chief deputy for 29 years in the sheriff’s office that required biannual shooting qualifications. A review of the Veteran’s audiograms included in his May 1966 entrance and May 1968 separation examinations reveal no evidence of hearing loss. Service treatment records and private medical treatment records ranging from November 1996 until April 2011 are silent for complaints of, or treatment for hearing problems. Rather, physical examinations conducted during this period indicate normal hearing. Around April 2011, the Veteran reported decreased hearing; this was subsequently confirmed by the March 2012 audiogram. Thus, there was no hearing loss in service or within a year of separation, and there was no continuity of symptomatology. Service connection for bilateral hearing loss may still be granted on a direct basis; however, the preponderance of the evidence is against finding that a nexus exists between the Veteran's hearing loss and an in-service injury, event or disease, to include noise exposure. 38 C.F.R. § 3.303 (a), (d). Although there was acoustic trauma, nothing suggests that he had characteristic manifestations of sensorineural hearing loss during service or within the initial post service year. Again, it is uncontroverted that hearing loss first manifested years after service. Here, the preponderance of the evidence is against finding that a medical nexus exists between the Veteran's bilateral hearing loss and service. 38 U.S.C. §§ 1110; 38 C.F.R. § 3.303. Service connection for bilateral hearing loss is not warranted. In rendering its decision, the Board relies on the Veteran’s service treatment records (STRs) and VA treatment records, as well as the examiner’s well-supported opinion. The Board acknowledges the Veteran’s assertions of service-related noise exposure; however, the Board notes that the Veteran’s separation examination reflects no hearing loss, and his first complaint of hearing problems was thirty years after leaving the military. The multi-year gap between discharge from active duty service and evidence of the disability years later is viewed as a factor weighing against this claim. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). The weight of the evidence is against concluding that any hearing loss disability was incurred in service. 38 C.F.R. § 3.303 (d). Since the preponderance of the evidence is against the claim, service connection for bilateral hearing loss must be denied. Increased Rating Coronary artery disease The Veteran is in receipt of 60 percent initial rating for coronary artery disease, effective December 18, 2014. The RO has evaluated the Veteran’s service-connected coronary artery disease under 38 C.F.R. § 4.104, Diagnostic Code (DC) 7005. A 60 percent rating is assigned for documented coronary artery disease resulting in 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 resulting in dyspnea, fatigue, angina, dizziness, or syncope, or; left ventricular dysfunction with an ejection fraction of 30 to 50 percent. Id. A 100 percent rating is assigned for documented coronary artery disease resulting in: chronic congestive heart failure, or; workload of 3 METs or less results in dyspnea, fatigue, angina, dizziness, or syncope, or; left ventricular dysfunction with an ejection fraction of less than 30 percent. Id. The relevant medical evidence is summarized as follows: Of record is a November 2014 private stress test, showing that the Veteran performed at 6.37 METs and reported shortness of breath. Left ventricular ejection fraction (LVEF) was 50-55 percent. The Veteran was afforded VA examinations in July and October 2015. During a July 2015 VA examination, the examiner noted the Veteran’s myocardial infarction and coronary artery disease, both diagnosed in 2014. Additionally, it was noted that the Veteran did not have congestive heart failure in his medical history, or hospitalizations for heart conditions. METs testing resulted in greater than 3-5 METs with reported symptoms of dyspnea, fatigue, angina, dizziness, and syncope. LVEF was 50 percent. The Veteran stated that his heart condition results in fatigue, dizziness, and shortness of breath. At an October 2015 VA examination, the examiner confirmed diagnoses of myocardial infarction and coronary artery disease. The Veteran did not have congestive heart failure or hospitalizations in his medical history. The Veteran’s stress test revealed 6.1 METs with reported symptoms of dyspnea, fatigue, angina, and dizziness. LVEF was again 50 percent. Veteran stated that he has had no energy since his heart attack. Further, he stated that he is now retired. He had worked in law enforcement for over 30 years, but he was no longer employable in that field due to his heart attack. Based on the evidence, the Board finds that the criteria for a disability rating in excess of 60 percent for coronary artery disease have not been met. The evidence has not established that coronary artery disease is manifested by chronic congestive heart failure or by dyspnea, fatigue, angina, dizziness or syncope with a workload of 3 METs or less. The evidence does not show left ventricular dysfunction with an ejection fracture of less than 30 percent. Consideration has been given to staged ratings. However, the Veteran’s heart condition has been consistent throughout the appeal period. Therefore, staged ratings are not appropriate. Since the preponderance of the evidence is against the claim, an increased rating in excess of 60 percent for coronary artery disease is denied. Posttraumatic stress disorder (PTSD) The Veteran received an initial 30 percent rating for PTSD, effective February 2, 2011. In his September 2012 notice of disagreement, the Veteran contended that his symptoms warrant at least a 50 percent rating. The criteria for a 30 percent rating are as follows: Occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, or mild memory loss (such as forgetting names, directions, recent events). The criteria for a 50 percent rating are as follows: Occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships. The criteria for a 70 percent rating are as follows: Occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work-like setting); inability to establish and maintain effective relationships. The criteria for a 100 percent rating are as follows: Total occupational and social impairment, due to such symptoms as gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation or own name. 38 C.F.R. § 4.130, Diagnostic Code 9411. After reviewing the Veteran’s VA treatment records and his March 2012 and October 2015 VA examinations, the Board determines that prior to October 24, 2015, the date of the VA examination, a rating in excess of 50 percent is not warranted. However, beginning October 24, 2015, based on the October 2015 VA examination, the Veteran’s PTSD more closely approximates a 50 percent rating. During the March 2012 VA examination, the examiner determined that the Veteran met the DSM-IV criteria for PTSD, noting that the Veteran’s symptoms of depression appear to be related to his PTSD, rather than a separate diagnosis. The examiner found the Veteran’s PTSD comprised symptoms of depressed mood, anxiety, suspiciousness, chronic sleep impairment, mild memory loss, and difficulty in establishing and maintaining effective work and social relationships. The examiner determined that the Veteran had occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although general functioning satisfactorily, with normal routine behavior, self care, and conversation. A December 2013 Psychiatry Note reflects that the Veteran presented with slight progress towards a decrease in PTSD symptoms and improvement in sleep. During the appointment, the Veteran reported that he felt “weird” with Wellbutrin, but stated that his mood and energy have improved slightly. He continued to have sleeping difficulty, sleeping about 3-6 hours a night. He reported stress related to his wife’s illness, and PTSD related hypervigilance. The Veteran stated that he generally avoided going out in public; however, he attended church and ran American Legion meetings twice a month. He reported good appetite and stable weight. The physician observed that the Veteran was well groomed, calm, cooperative, with normal speech, logical thought processes with no evidence of psychosis, hallucinations, or delusions; cognitive function was intact; insight and judgment was good; his mood and affect were fairly euthymic. The Veteran denied suicidal and homicidal ideation. At his June 2014 Psychiatry appointment, the Veteran’s condition was fairly similar to that reflected in his December 2013 appointment’s. In January 2015, the Veteran reported a heart attack the previous November. He continued to worry about his wife’s illness. He stated that he slept 4 hours a night and had nightmares 3-4 times a week. He reported hypervigilance and irritability at times. The physician noted that the Veteran was well groomed, calm, cooperative, with normal speech, good judgment and insight; logical thought processes, no evidence of hallucinations or delusions, or suicidal or homicidal ideation. His mood was described as mildly depressed, and affect was sad and anxious. In June 2015, the Veteran reported that he was staying busy taking care of the house, his wife, and was seeking legal counsel regarding his wife’s care. He conveyed undertaking efforts to better manage his health following cardiac problems. He reported sleeping 4-5 hours a night; nightmares 1-2 times a week; experiencing frequent intrusive thoughts; his energy was fairly good, but his interests had diminished; he remained hypervigilant, irritable, and socially avoidant, and experienced short term memory problems such as remembering names and phone numbers. He continued his involvement with the American Legion. The physician found normal speech, normal thought processes, no evidence of psychosis, or suicidal or homicidal ideation. In the October 2015 VA examination, the examiner provided diagnoses of PTSD and unspecified depressive disorder. The Veteran reported sleeping 3-4 hours a night and nightmares; feeling on guard with unexpected loud noises; poor concentration; memory problems; and endorsed passive suicidal ideation, noting that his religious beliefs would prevent him from taking action. Furthermore, he reported a good relationship with his wife of 16 years and some of his children; he stated that he was close with some Vietnam veterans and participated in the American Legion, and that he went to church weekly. Otherwise, he preferred to stay at home to avoid crowds. He said that he could not stand going to stores. The Veteran’s PTSD was marked with symptoms of depressed mood, anxiety, chronic sleep impairment, mild memory loss, flattened affect, disturbance of motivation and mood, and suicidal ideation. The examiner concluded that the Veteran presented with occupational and social impairment with reduced reliability and productivity. Based on the foregoing evidence, the Board finds that prior to October 24, 2015, the Veteran’s symptomatology does not approximate a rating in excess of 30 percent. During this portion of the appeal period, the evidence reflects that the Veteran’s symptomatology comprised depressed mood, hypervigilance, irritability, chronic sleep impairment, and some social impairment. His thought processes and speech were unremarkable, there was no evidence of psychosis or homicidal or suicidal ideation. However, during the October 2015 VA examination, the examiner noted some increases in symptoms such as flattened affect, disturbance of motivation, and suicidal ideation that impacted the veteran’s occupational and social functioning. Therefore, the Board finds that a 50 percent rating is appropriate beginning October 24, 2015. Higher schedular ratings of 70 or 100 percent are not warranted during the appeal period. The Veteran’s symptoms do not comprise illogical speech, spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances, inability to establish and maintain effective relationships, persistent delusions or hallucinations, or persistent danger of hurting self or others. In conclusion, prior to October 24, 2015, increased rating for PTSD, in excess of 30 percent is denied; increase rating for PTSD, in excess of 50 percent, is denied thereafter. REASONS FOR REMAND Service connection for pulmonary disability to include COPD Entitlement to service connection for a pulmonary disability to include COPD, also claimed as due to Agent Orange exposure, is remanded. Initially, the Board notes that the Veteran filed a claim for entitlement to service connection for lung cancer with pulmonary module. The Veteran’s VA treatment records show diagnoses of COPD and lung nodule. Therefore, the Board has restyled the issue to include any potentially relevant pulmonary claims raised in the record. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). The Veteran claims that his disability is related to his exposure to Agent Orange in service. As the Veteran’s personnel records show that he served in the Republic of Vietnam (Vietnam) during the Vietnam era, exposure to Agent Orange during service has been conceded. As mentioned previously, the Veteran has current pulmonary related diagnoses. Given that the Veteran may have a present disability related to service, the Board finds that the Veteran should be afforded a VA examination to further develop his claim. See McLendon v. Nicholson, 20 Vet. App. 79, 81-83 (2006). TDIU The record indicates that the Veteran’s non-service connected COPD may be related to his TDIU claim. Since, at this time, the Board is remanding the issue of service connection for a pulmonary disability, the Board finds it is appropriate to remand the issue of TDIU as well. The two claims are inextricably intertwined. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) The matters are REMANDED for the following action: 1. Offer the Veteran and his representative the opportunity to submit additional evidence and/or argument in support of the claim for service connection for a pulmonary disability. 2. Obtain and associate with the file any outstanding VA treatment records. 3. Schedule the Veteran for a VA examination to determine if he has a pulmonary disability that is related to service to include exposure to herbicides in service. Access to the electronic claims files must be made available to the examiner for review. After examination and review of the record, the examiner must opine whether it is at least as likely as not, i.e., is there a 50/50 chance that any current pulmonary disability had its onset in service or was caused by service including herbicide exposure. 4. Following completion of the Veteran’s pulmonary disability claim, the AOJ should review the record and readjudicate the Veteran’s TDIU claim. If the TDIU remains denied, the AOJ should issue an appropriate supplemental statement of the case, afford the Veteran and his representative an opportunity to respond, and return the case to the Board. The Veteran has the right to submit additional evidence and argument on the matter 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. §§ 5109B , 7112. N. RIPPEL Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Sami, Arooj