Citation Nr: 18144377 Decision Date: 10/25/18 Archive Date: 10/24/18 DOCKET NO. 14-05 770 DATE: October 25, 2018 ORDER Entitlement to service connection for tinnitus is granted. Entitlement to an initial rating in excess of 10 percent prior to January 20, 2017 and in excess of 30 percent thereafter for coronary artery disease (CAD) is denied. REMANDED Entitlement to a total disability rating based on individual unemployability (TDIU) prior to December 12, 2012 is remanded. FINDINGS OF FACT 1. Affording the Veteran the benefit of the doubt, his tinnitus is associated with his service-connected bilateral hearing loss. 2. Prior to January 20, 2017, the Veteran’s CAD was manifested by a workload of greater that 5-7 METs resulting in dyspnea and angina and required continuous medication; it was not manifested by a workload of greater than 5 METs but not greater than 7 METs and there was no evidence of cardiac hypertrophy or dilatation. 3. From January 20, 2017, the Veteran’s CAD has been manifested by cardiac hypertrophy; there is no evidence of congestive heart failure, a workload greater than 3 METs but not greater than 5 METs, or left ventricular dysfunction with an ejection fraction of 30 percent to 50 percent. CONCLUSIONS OF LAW 1. The criteria for service connection for tinnitus have been met. 38 U.S.C. §§ 1110, 5107 (2014); 38 C.F.R. §§ 3.303, 3.310 (2017). 2. The criteria for an initial rating in excess of 10 percent prior to January 20, 2017 and 30 percent thereafter for CAD have not been met. 38 U.S.C. §§ 1155, 5107 (2014); 38 C.F.R. § 4.7, 4.104, Diagnostic Code 7005 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1967 to June 1969. These matters come before the Board of Veterans’ Appeals (Board) on appeal from January 2011 and May 2012 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) located in New York, New York. Jurisdiction has been transferred to the RO in Winston-Salem, North Carolina. This appeal was before the Board in October 2016 at which time it was remanded for additional evidentiary development. Most recently, this matter was remanded in November 2017. The Board observes that the issues of entitlement to service connection for bilateral hearing loss and erectile dysfunction were also remanded by the Board in the November 2017 decision. However, service connection for the above-mentioned disabilities was granted in a June 2018 rating decision. The grant of service connection constitutes a full award of the benefits sought on appeal with respect to these claims. See Grantham v. Brown, 114 F. 3d 1156, 1158 (Fed. Cir. 1997). The record currently available to the Board contains no indication that the Veteran has initiated an appeal with the initial ratings or effective dates assigned. Grantham, 114 F. 3d at 1158 (holding that a separate notice of disagreement must be filed to initiate appellate review of “downstream” elements such as the disability rating or effective date assigned). Thus, the issues are not in appellate status at this juncture. 1. Entitlement to service connection for tinnitus Service connection may be granted for disability resulting from personal injury suffered or disease contracted in the line of duty or for aggravation of a pre-existing injury or disease in the line of duty. 38 U.S.C. §§ 1110, 1131 (2014); 38 C.F.R. §§ 3.303, 3.304, 3.306 (2017). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d) (2017). Service connection for certain chronic diseases may also be established on a presumptive basis by showing that such a disease manifested itself to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C. §§ 1101, 1112, 1137 (2014); 38 C.F.R. §§ 3.307 (a)(3), 3.309(a) (2017). In such cases, the disease is presumed under the law to have had its onset in service even though there is no evidence of such disease during the period of service. 38 C.F.R. § 3.307 (a) (2017); see also Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. 38 C.F.R. § 3.303(b). A claimant can establish continuity of symptomatology with competent evidence showing: (1) that a condition was noted during service; (2) post-service continuity of the same symptomatology; and (3) a nexus between a current disability and the post-service symptomatology. Savage v. Gober, 10 Vet. App. 488, 495-96 (1997); 38 C.F.R. § 3.303(b). The standard of proof to be applied in decisions on claims for VA benefits is set forth in 38 U.S.C. § 5107(b). Under that provision, VA shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b) (2014); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Factual Background The Veteran asserts that service connection for tinnitus is warranted. Service treatment records are negative for complaints of tinnitus. Notably, at the time of the May 1969 military separation examination, clinical evaluation of the Veteran’s ears was normal and there was no finding of tinnitus or ringing in the ears. A review of the Veteran’s Certificate of Release or Discharge from Active Duty (DD Form 214) demonstrates that his military occupational specialty was rifleman. The Veteran was provided a VA examination in May 2011. At that time, he denied ever having tinnitus. The examiner opined that that given that the Veteran denied ever having tinnitus, an opinion regarding the etiology of tinnitus was not warranted. A subsequent VA post-service clinical record dated in August 2011 notes a diagnosis of tinnitus. In a December 2016 VA medical opinion, it was noted that there was no report of tinnitus found in the Veteran’s service treatment records. It was further noted that the Veteran denied tinnitus during the May 2011 V examination. The clinician reported that the Veteran’s military occupational specialty was rifleman, thus, service related noise exposure is conceded. While an etiological opinion was provided for the Veteran’s service-connected hearing loss disability, such opinion was not provided for tinnitus. A final VA examination was provided in February 2018. At that time, tinnitus was diagnosed. The Veteran reported that the onset of tinnitus was in the 1970s. The examiner opined that the Veteran’s tinnitus is less likely than not caused by or a result of military noise exposure. In so finding, she noted that in the May 2011 VA examination report, tinnitus was not reported. She indicated that since tinnitus began between June 2011 and August 2011, it would be less likely as not due to noise exposure since the Veteran left the military in 1969. Analysis After carefully considering the record on appeal, and affording the Veteran the benefit of the doubt, the Board finds that service connection for tinnitus is warranted. At the outset, the Board notes that tinnitus is a chronic disease and, as such, service connection may be warranted on the basis of continuity of symptoms or on a presumptive basis. However, the documented evidence of record does not indicate that the Veteran developed tinnitus during service or that there was continuity of tinnitus symptoms since service. As set forth above, service treatment records are negative for reports or findings of tinnitus. At the time of the February 2018 VA examination, the Veteran reported that the onset of tinnitus was in the 1970s. However, at the time of the May 2011 VA examination, the Veteran denied ever having tinnitus. Thus, in light of the contradictory statements regarding the onset of the claimed disability, the Board finds that the most probative evidence establishes that tinnitus was not present during active service and that continuity of symptomatology has not been established by the record. Additionally, the record contains no indication, lay or clinical, that tinnitus manifested to a compensable degree within one year of separation from active service. Although during the February 2018 VA examination the Veteran reported the onset of tinnitus was in the 1970s, during the May 2011 VA examination, the Veteran denied ever having tinnitus. As such, service connection for tinnitus on a presumptive basis is also not warranted. Although the most probative evidence establishes that tinnitus was not present during the Veteran’s period of active service or manifested to a compensable degree within one year of separation from such service, service connection may nonetheless be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. In this case, however, the record preponderates against finding that the Veteran’s current tinnitus is causally related to his active service. As set forth above, after examining the Veteran and reviewing the record, the February 2018 VA examiner concluded that the Veteran’s current tinnitus is less likely than not related to his active military service. The Board notes that the Veteran has not provided any medical evidence or opinions to contradict the examiner’s findings. Although the record does not support an award of service connection for tinnitus on a direct or presumptive basis, the Board finds that secondary service connection is warranted in light of the award of service connection for bilateral hearing loss in the February 2018 rating decision. The Board notes that it is medically well established that tinnitus may occur as a symptom of sensorineural or noise induced hearing loss. The Merck Manual, Sec. 7, Ch. 82, Approach to the Patient with Ear Problems. The medical evidence of record reflects that the Veteran’s service-connected bilateral hearing loss is a result of his exposure to acoustic trauma during service. The Board notes that “high frequency tinnitus usually accompanies [noise-induced] hearing loss.” The Merck Manual, Section 7, Cha. 85, Inner Ear. Accordingly, given the grant of service connection for bilateral hearing loss and The Merck Manual indicating that tinnitus may occur as a symptom of sensorineural hearing loss, and resolving all doubt in the Veteran’s favor, the Board finds that service connection for tinnitus is warranted. 38 U.S.C. § 5107 (2014); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 2. Entitlement to an initial rating in excess of 10 percent prior to January 20, 2017 and 30 percent thereafter for CAD Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Separate diagnostic codes identify the various disabilities. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. Evaluations are based upon lack of usefulness of the part or system affected, especially in self-support. 38 C.F.R. § 4.10 (2017). Where a claimant appeals the initial rating assigned for a disability when a claim for service connection for that disability has been granted, evidence contemporaneous with the claim for service connection and with the rating decision granting service connection would be most probative of the degree of disability existing at the time that the initial rating was assigned and should be the evidence “used to decide whether an [initial] rating on appeal was erroneous...” Fenderson v. West, 12 Vet. App. 119, 126 (1999). If later evidence obtained during the appeal period indicates that the degree of disability increased or decreased following the assignment of the initial rating, “staged” ratings may be assigned for separate periods of time based on facts found. Id. 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 (2017). Any reasonable doubt regarding the degree of disability is resolved in favor of the Veteran. 38 C.F.R. § 4.3 (2017). The Veteran’s service-connected heart disability has been rated under Diagnostic Code 7005, for arteriosclerotic heart disease (coronary artery disease). Under the rating criteria, a 10 percent rating is warranted for a workload of greater than 7 METs but not greater than 10 METs resulting in dyspnea, fatigue, angina, dizziness, or syncope, or continuous medication. 38 C.F.R. § 4.104, Diagnostic Code 7005 (2017). A 30 percent rating is warranted for a workload of greater than 5 METs but not greater than 7 METs resulting in dyspnea, fatigue, angina, dizziness, or syncope, or; evidence of cardiac hypertrophy or dilation on electro-cardiogram, echocardiogram, or x-ray. Id. A 60 percent rating is assigned when there is more than one episode of acute congestive heart failure in the past year, or when a workload of greater than 3 METs but not greater than 5 METs results in dyspnea, fatigue, angina, dizziness, or syncope, or; where there is left ventricular dysfunction with an ejection fraction of 30 percent to 50 percent. Id. A 100 percent rating is assigned where there is chronic congestive heart failure; or when there is a workload of 3 METs or less which results in dyspnea, fatigue, angina, dizziness, or syncope; or when there is left ventricular dysfunction with an ejection fraction of less than 30 percent. Id. Factual Background The Veteran was provided a VA examination in November 2010 at which time CAD was assessed. It was noted that the Veteran’s heart disability was treated with medication. Reported side effects of the medication included fatigue. It was noted that the Veteran was able to climb a flight of stairs quickly and jog, which placed him at a METs of approximately 9-10. The examiner documented that the Veteran was unemployed. Notwithstanding, the Veteran reported that his CAD had not affected his usual activities of daily living, however, he is not able to do things he used to do such as lifting heavy items. On physical examination, it was noted that, with regards to the cardiovascular system, S1 and S2 were audible. The Veteran had regular rate and rhythm and there were no murmurs, rubs, heaves, or gallops. Distal pulses were intact, bilaterally. Additionally, the Veteran’s heart size was normal. With regard to diagnostic and clinical tests, the examiner noted that the Veteran underwent myocardial perfusion imaging with thallium SPECT at rest and rest after exercise in August 2008, which showed the left ventricle was normal in size. There were myocardial perfusion defects and small-size reversible inferior wall defects with mild severity. Diaphragmatic attenuation was present. Left ventricular ejection fraction was calculated at 58%. Regional wall motion/thickening was abnormal. The inferior wall was mildly hypokinetic. Mildly myocardial perfusion thalium-201 SPECT imaging submaximal exercise showed a small amount of inferior wall ischemia without infarction. It was noted that the Veteran exercised on a treadmill for a total of 10 minutes and 36 seconds reaching stage 4 of the Bruce protocol, achieving estimated workload of 10.1 METS. The examiner also noted that a stress thallium test conducted in September 2009 showed normal perfusion; mildly abnormal study with inferior ischemia without infarct. Abnormal wall motion and hypokinesis were present. A small area of mild hypokinesis was present in the wall. No attenuation defects were noted and there was good exercise tolerance with an exercise arrhythmia. Gated imaging demonstrated normal function with an estimated ejection fraction of 71%. The workload achieved was 11.4 METS. Subsequent post-service private treatment records reveal treatment for CAD. Reported symptoms included chest pain and dyspnea. A February 2011 medical record documented ejection fraction of 66% and an April medical record noted an ejection fraction of 60%. The Veteran underwent a V examination in January 2013. CAD and acute, subacute, or old myocardial infarction were assessed. At that time, the Veteran reported that he had dyspnea with one flight of stairs, concurrent with COPD. He also reported chest pain with no particular trigger at times of rest, but more often with exertion. Chest pain was also triggered by climbing stairs, walking a mild incline and carrying groceries. It was noted that continuous medication is required to control the Veteran’s heart disability. There was no evidence of congestive heart failure, arrhythmia, heart valves, infectious heart conditions, or pericardial adhesions. On physical examination, the Veteran’s heart rate was 80 and had a regular rhythm and normal sound. The point of maximal impact was the 4th intercostal space. There was no jugular-venous distension and auscultation of the lungs was clear. Peripheral pulses were normal and there was no peripheral edema. There was no evidence of cardiac hypertrophy or dilatation. The examiner noted that an EKG in February 2012 and an echocardiogram in May 2011 revealed normal findings. An interview-based METs test noted METS level greater than 5-7 METs, consistent with activities such as walking 1 flight of stairs, golfing without a cart, mowing the lawn using a push mower, and heavy yard work such as digging. Symptoms during activity included dyspnea and angina. The METs level limitation due solely to the heart disability was 50% and 50% was attributed to the Veteran’s nonservice-connected COPD. With regards to functional limitation, the Veteran reported the he retired early due to his heart condition. A final VA examination was provided in December 2016. CAD and acute, subacute, or old myocardial infarction were again assessed. It was noted that in 2012, the Veteran underwent another angioplasty which was remarkable for mild stenosis at the RCA and ostial OM. However, stent placement was not required. The examiner reported that continuous medication was required to control the Veteran’s heart disability. Additionally, he documented that the Veteran had a myocardial infarction in July 2005, however, he did not have congestive heart failure, cardiac arrhythmia, a heart valve condition, infections heart condition, or pericardial adhesions. On physical examination, the Veteran’s heart rate was 78 and had a regular rhythm and sound. The point of maximal impact was at that 5th intercostal space. There was no jugular-venous distension and auscultation was clear. Peripheral pulses were normal and there was no peripheral edema. On diagnostic testing, there was no evidence of cardiac hypertrophy or dilatation. The examiner noted that an EKG conducted in January 2016 and an x-ray in June 2016 revealed normal findings. Additionally, a cardiac SPECT showed no ST and T changes or arrhythmias. The final impression was negative pharmacologic stress test. He noted that there was an old myocardial infarct in the inferior wall without reversible ischemia. The examiner indicated that this is consistent with the Veteran’s cardiac history. LVEF was 69-70%. An interview-based METs test noted METS level greater than 5-7 METs consistent with activities such as walking 1 flight of stairs, golfing without a cart, mowing a lawn using a push mower, and heavy yard work such as digging. Symptoms during activity included dyspnea. The examiner opined that the Veteran’s CAD impacted his ability to work. In so finding, he noted that the Veteran retired secondary to his heart and COPD. A January 2017 clinical record noted that there is a mild concentric left ventricular hypertrophy. The left ventricular is normal and ejection fraction ins greater than 55%. In a February 2018 medical opinion, the clinician noted that an echo report dated in May 2011 did not show evidence of dilatation or hypertrophy. A January 2013 VA examination revealed a diagnosis of CAD and myocardial infarction with no evidence of dilatation or hypertrophy on echo, which was dated in May 2011. A procedure noted for echo dated in January 2017 revealed mild concentric left ventricular hypertrophy, but no dilatation. The clinician opined that it is at least as likely as not that there is cardiac hypertrophy based on a procedure note for echo dated in January 2017 that revealed mild concentric left ventricular hypertrophy. The examiner noted that in the November 2010 VA examination report, myocardial perfusion scan dated in August 2008 and a stress thallium test dated in 2009 were referenced. However, the referenced records did not include an echocardiogram which would have determined if dilatation or hypertrophy were present. Analysis Based on the record, the Board finds that the preponderance of the evidence is against the assignment of an initial rating in excess of 10 percent prior to January 20, 2017 and 30 percent thereafter for the Veteran’s heart disability. At the outset, the Board observes that the record contains some indication that some of the Veteran’s symptoms are due to his nonservice-connected COPD. For example, at the January 2013 VA medical examination, the examiner estimated that the Veteran’s METs level limitation due solely to the heart disability was 50% while 50% was attributed to his nonservice-connected COPD. However, the other clinical evidence of record does not clearly distinguish the symptoms of the service-connected heart disability from the nonservice connected COPD; thus, affording the Veteran the benefit of the doubt, all the manifestations will be considered part of the service-connected coronary artery disease for the purposes of assessing the severity of that disability. Mittleider v. West, 11 Vet. App. 181, 182 (1998). Prior to January 20, 2017, the Veteran had a workload of greater than 5 to 7 METs that resulted in dyspnea and fatigue. As detailed herein, at the time of the November 2010 VA examination, the Veteran had METs of approximately 9-10. An interview based stress test conducted at the January 2013 and December 2016 VA examinations revealed METs levels greater than 5 to7. Additionally, the condition required continuous medication. Such findings are considered in the current 10 percent rating. 38 C.F.R. § 4.104, Diagnostic Code 7005 (2017). However, the evidence does not show METs greater than 5 but not greater than 7 or cardiac hypertrophy or cardiac dilatation on electrocardiogram, echocardiogram, or X-ray. As such, the next-higher 30 percent rating is not warranted during this stage of the appeal. From January 20, 2017, the evidence shows cardiac hypertrophy on echocardiogram. Such finding is considered in the current 30 percent rating. 38 C.F.R. § 4.104, Diagnostic Code 7005 (2017). However, the evidence does not show congestive heart failure, a workload of greater than 3 METs but not greater than 5 METs, or left ventricular dysfunction with an ejection fraction of 30 percent to 50 percent. As such, the next-higher 60 percent rating is not warranted. The Board has considered whether a higher rating is available under any other potentially applicable provision of the rating schedule. However, as the Veteran’s service connected coronary artery disease is rated under Diagnostic Code 7005, applicable to such disability, rating by analogy to an alternative diagnostic code is not appropriate. See Copeland v. McDonald, 27 Vet. App. 333, 337 (2015). In addition, the symptoms associated with the Veteran’s service-connected CAD have been considered in assigning the current rating. He has not contended otherwise. Accordingly, the Board finds that the preponderance of the evidence is against the assignment of an initial rating in excess of 10 percent prior to January 20, 2017 and 30 percent thereafter Veteran’s service-connected heart disability, and the claim must be denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C. § 5107 (2014); 38 C.F.R. § 3.102 (2017). REASONS FOR REMAND 1. Entitlement to a total disability rating based on individual unemployability (TDIU) prior to June 12, 2012. The Veteran asserts that entitlement to a TDIU is warranted. Specifically, he contends that he retired in August 2009 due to his service-connected CAD, posttraumatic stress disorder, and back disability. The Board observes that from June 12, 2012, the Veteran is in receipt of a 100 percent disability rating, plus special monthly compensation under 38 U.S.C. § 1114(s); 38 C.F.R. § 3.350(i). In correspondence from the Veteran’s former employer received in March 2013, it was noted that the Veteran had retired from the United States Postal Service (USPS). The RO was informed to request any information directly from the Office of Personnel Management (OPM). There is not indication the efforts to obtain the Veteran’s employment records were made. As the Veteran has indicated that he retired due to his service-connected disabilities, the Board finds that the OPM retirement records are relevant to the TDIU claim before the Board. On remand, the AOJ should undertake appropriate efforts to obtain the Veteran’s OPM records. The matter is REMANDED for the following action: 1. Undertake appropriate development to obtain the Veteran’s OPM records regarding his retirement from the USPS. All records obtained should be associated with the claims file. K. Conner Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD C. Jones, Counsel