Citation Nr: 18144938 Decision Date: 10/25/18 Archive Date: 10/25/18 DOCKET NO. 16-28 208 DATE: October 25, 2018 ORDER Entitlement to service connection for bilateral hearing loss is denied. Entitlement to service connection for tinnitus is denied. Entitlement to an initial disability rating in excess of 60 percent for atherosclerotic coronary artery disease (CAD) is denied. REMANDED Entitlement to a rating in excess of 10 percent for the service-connected right knee disability of meniscal and medial collateral ligament tear status post right knee arthroscopy with degenerative joint disease (DJD) is remanded. FINDINGS OF FACT 1. The Veteran’s bilateral hearing loss and tinnitus are less likely than not related to in-service noise exposure. 2. Throughout the entire period on appeal, the Veteran’s atherosclerotic CAD has not been shown to be manifested by chronic congestive heart failure or left ventricular dysfunction with an ejection fraction of less than 30 percent. CONCLUSIONS OF LAW 1. The criteria for service connection for bilateral hearing loss have not been met. 38 U.S.C. § 1110, 1112, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303(a), 3.307, 3.309 (2017). 2. The criteria for service connection for tinnitus have not been met. 38 U.S.C. § 1110, 1112, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303(a), 3.307, 3.309 (2017). 3. The criteria for a rating in excess of 60 percent for atherosclerotic CAD are not met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.3, 4.7, 4.104, Diagnostic Code 7005 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1966 to March 1970. This matter is before the Board of Veterans’ Appeals (Board) from Department of Veterans Affairs (VA) Regional Office (RO) rating decisions of June 2014 and August 2016. Service Connection Bilateral Hearing Loss and Tinnitus The Veteran asserts that he has bilateral hearing loss and tinnitus that are related to service. Service connection may be established for a disability resulting from personal injury suffered or disease contracted in the line of duty or for aggravation of preexisting injury suffered or disease contracted in the line of duty. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Generally, to establish service connection, there must be lay or medical evidence of (1) a current disability, (2) incurrence or aggravation of a disease or injury in service, and (3) a nexus between the in-service injury or disease and the current disability. See 38 U.S.C. § 1110; Davidson v. Shinseki, 581 F.3d 1313, 1315-16 (Fed.Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed.Cir. 2004). Service connection may also be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Lay assertions may serve to support a claim for service connection by establishing the occurrence of observable events or the presence of disability or symptoms of disability subject to lay observation. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F. 3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). The United States Court of Appeals for the Federal Circuit (Federal Circuit) has clarified that lay evidence can be competent and sufficient to establish a diagnosis or etiology when (1) a lay person is competent to identify a medical condition; (2) the lay person is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). The credibility and weight of all the evidence, including the medical evidence, should be assessed to determine its probative value, and the evidence found to be persuasive or unpersuasive should be accounted for, and reasons should be provided for rejecting any evidence favorable to the claimant. See Masors v. Derwinski, 2 Vet. App. 181 (1992). Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. It is the Board's responsibility to determine whether a preponderance of the evidence supports the claim or whether the evidence is in relative equipoise, with the veteran prevailing in either event, or whether there is a preponderance of evidence against the claim, in which case the claim must be denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. By reasonable doubt is meant one which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. 38 C.F.R. § 3.102. Even though disabling hearing loss is not demonstrated at separation, a veteran may, nevertheless, establish service connection for a current hearing disability by submitting evidence that a current disability is related to service. Hensley v. Brown, 5 Vet. App. 155 (1993). The Veteran has a current hearing loss disability for VA purposes, and he currently reports tinnitus. However, the preponderance of the evidence is against a finding that the current hearing loss and tinnitus are related to in-service noise exposure. A June 2011 VA audiology consult shows that the Veteran was seen with complaints of hearing loss and left ear pain. The Veteran reported that his family complains about his hearing and he stated that he needs repetition. The examiner noted that the Veteran had a significant history of military explosions. The Veteran denied tinnitus, vertigo, otologic surgery, and prior hearing aid usage. He was diagnosed with mild to severe sensorineural hearing loss. The Veteran was afforded a VA examination in February 2014. He was diagnosed with bilateral hearing loss for VA purposes. See 38 C.F.R. § 3.385. The examiner opined that the Veteran’s bilateral hearing loss was not at least as likely caused by or a result of an event in military service. The examiner indicated that the Veteran reported 44 months of service as a boatswain’s mate with one tour in Vietnam exposed to the noise from naval vessels and deck guns providing naval gunfire support against shore positions. This service is supported by the Veteran’s DD-214. Noise levels associated with naval vessels and deck guns are known to exceed safe levels of noise exposure and can result in hearing loss. An examination of the Veteran’s enlistment and discharge physicals dated in February 1966 and February 1970 reveal normal hearing with no significant threshold shifts bilaterally. The Veteran also reports a 37-year post-service career as a mechanic on forklifts and other equipment, which is also associated with noise levels known to cause hearing loss. This evidence suggests that the [Veteran’s] hearing loss is less likely than not associated with in-service exposure and may be related to post-service factors, such as employment and aging. The Veteran also reported having recurrent tinnitus. He reported first noticing ringing in his ears 20 years ago and that it occurs three to four times a week and lasts for up to 15 minutes. The examiner opined that the Veteran’s tinnitus was not at least as likely as not due to military noise exposure. The examiner noted that the Veteran reported 44 months of service as a boatswain’s mate with one tour in Vietnam exposed to the noise from naval vessels and deck guns providing naval gunfire support against shore positions. This service is supported by the Veteran’s DD-214. Noise levels associated with naval vessels and deck guns are known to exceed safe levels of noise exposure and can result in tinnitus. The Veteran reports ringing in his ears did not begin until 20 years ago or about 24 years post service. The Veteran also reports a post service career in construction, which is also associated with noise levels known to cause tinnitus. The Veteran did not report tinnitus during his VA audiology consult in June 2011. This evidence suggests that the Veteran’s tinnitus is less likely than not associated with in-service noise exposure, and may be related to post-service factors, such as deteriorating hearing, industrial noise, and aging. In short, neither hearing loss nor tinnitus was shown during service or at the time of discharge from service. While the Board concedes in-service noise exposure, the VA examiner opined that the Veteran’s hearing loss and tinnitus were less likely than not related to that exposure. The examiner reasoned that the Veteran had many more years of post-service noise exposure and that such post-service noise exposure was more likely the cause of the hearing loss. Although the Veteran sincerely believes that his hearing loss was caused by in-service noise exposure, the Board places greater weight on the opinion of the VA examiner because the etiology of hearing loss requires medical expertise particularly where there is no hearing loss shown at the time of service or for many years thereafter. The Board is mindful that the VA examiner’s rationale relies in part on the assertion that the Veteran’s hearing was normal at separation; however, the examiner also relied on the fact that the Veteran’s post-service noise exposure exceeded the in-service noise exposure by several decades. Thus, the examiner did not rely solely on the absence of documented hearing loss while in service to support the opinion. There is no medical opinion to the contrary. In reaching the above conclusions, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claims, that doctrine is not applicable in the instant appeal. See 38 U.S.C. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). In light of the foregoing, service connection for hearing loss and tinnitus is not warranted. Increased Ratings Disability evaluations are determined by evaluating the extent to which a Veteran’s service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C.§ 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower evaluation will be assigned. 38 C.F.R. § 4.7. The Veteran’s entire history is to be considered when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). “Staged” ratings are appropriate for any rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). Atherosclerotic CAD The Veteran asserts that he is entitled to an initial disability rating in excess of 60 percent for his service-connected CAD. Service connection for CAD was granted pursuant to a June 2014 rating decision, and an initial 60 percent rating was assigned effective from June 19, 2012. The Veteran is currently in receipt of a 60 percent rating for atherosclerotic CAD, pursuant to 38 C.F.R. § 4.104, Diagnostic Code 7005. Under the applicable rating criteria, a 10 percent evaluation is assigned for a workload of greater than 7 METs but not greater than 10 METs that results in dyspnea, fatigue, angina, dizziness, or syncope, or; continuous medication required. A 30 percent evaluation is assigned for a workload of greater than 5 METs but not greater than 7 METs that results in dyspnea, fatigue, angina, dizziness, or syncope, or; evidence of cardiac hypertrophy or dilatation on electrocardiogram (ECG or EKG), echocardiogram (echo) or X-ray. A 60 percent evaluation is assigned for more than one episode of acute congestive heart failure in the past year, or; a workload of greater than 3 METs but not greater than 5 METs that results in dyspnea, fatigue, angina, dizziness, or syncope, or; when there is left ventricular dysfunction with an ejection fraction of 30 to 50 percent. A 100 percent evaluation is assigned for 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. One MET is 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 of METs by exercise testing 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). In addition, lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159 (a); Layno v. Brown, 6 Vet. App. 465, 470 (1994). The Board must assess the credibility and weigh all the evidence, including lay and medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). A July 2011 VA treatment record shows that a recent echocardiogram was unremarkable and ejection fraction was normal. A December 2013 VA medical treatment record reflects that the Veteran was seen for a myocardial perfusion imaging study. Results were negative for reversible ischemia and left ventricular ejection fraction was 64%. Echocardiogram also showed normal wall motions and ejection fraction was greater than 55%. The Veteran was afforded a VA examination in February 2014. He was diagnosed with atherosclerotic CAD. His treatment plan included taking continuous medications, to include simvastatin, carvedilol, and low dose asa. A diagnostic exercise test was not conducted. The Veteran did not undergo left ventricular ejection fraction testing, but the examiner determined, based on an interview-based METS test, the Veteran could not handle a workload of more than three to five METS without experiencing dyspnea, fatigue, and angina. There was no evidence of cardiac hypertrophy or dilatation. In February 2016, the Veteran underwent a cardiovascular stress test during VA treatment. The impression was no definitive scintigraphic evidence of Lexiscan induced myocardial ischemia. There is no definitive scintigraphic evidence of myocardial infarction/scar except for a mild fixed defect. There was a mild scar in the distal inferior wall. EKG gated imaging showed left ejection fraction of approximately 52%. Borderline transient ischemic dilatation was noted to be of uncertain significance in the absence of significant perfusion defect. An April 2016 letter from the VA medical center in Fayetteville, North Carolina explained the results of the Veteran’s February 2016 echocardiogram taken as part of his cardiovascular evaluation. It was noted that testing showed two valves with leakage, termed mild aortic insufficiency and mild mitral insufficiency. Upon review, the Board finds that a higher evaluation is not warranted. To merit the next higher, 100 percent rating, there must be evidence of chronic congestive heart failure; a workload of 3 METs or less; or left ventricular dysfunction with an ejection fraction of less than 30 percent. See 38 C.F.R. § 4.104, Diagnostic Code 7005. As none of these criteria have been shown at any time during the appeal, a 100 percent evaluation is not warranted in this case. REASONS FOR REMAND RIGHT KNEE DISABILITY is remanded. The Veteran was last afforded a VA examination to assess the current nature and severity of his service-connected right knee disability in May 2016. The Veteran has since expressed that his range of motion has been limited for a very long time and even more so today. See September 2016 VA Form 9. Furthermore, while the May 2016 VA examination report contains initial range of motion testing, it does not contain all of the range of motion findings necessary for the Board to competently determine the appropriate disability rating for the Veteran’s service-connected right knee disability. Specifically, the VA examination report does not provide the necessary active motion, passive motion, weight-bearing, and nonweight-bearing information as required by 38 C.F.R. § 4.59 (2017), which concerns painful motion of the musculoskeletal system. Because the May 2016 VA examiner did not conduct all such tests, the Board finds that the examination is inadequate under Correia v. McDonald, 28 Vet. App. 158 (2016). Accordingly, on remand, the joints involved should be tested for pain on both active and passive motion, in weight-bearing and nonweight-bearing. Consequently, the Board finds that a new VA examination is warranted to assess the current severity of the Veteran’s right knee disability. The matters are REMANDED for the following action: 1. Obtain any outstanding VA treatment records. 2. Schedule the Veteran for a VA examination to determine the current severity of his right knee disability. The claims file should be made available to and reviewed by the examiner and all necessary tests should be performed. All findings should be reported in detail. The examiner should identify all right knee pathology found to be present. The examiner should conduct all indicated tests and studies, to include range of motion studies. The joints involved should be tested in both active and passive motion, in weight-bearing and non weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint (in the case of the left knee). If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. The examiner should describe any pain, weakened movement, excess fatigability, instability of station and incoordination present. The examiner should also state whether the examination is taking place during a period of flare-up. If not, the examiner should ask the Veteran to describe the flare-ups he experiences, including: frequency, duration, characteristics, precipitating and alleviating factors, severity and/or extent of functional impairment he experiences during a flare-up of symptoms and/or after repeated use over time. (Continued on the next page)   Based on the Veteran’s lay statements and the other evidence of record, the examiner should provide an opinion estimating any additional degrees of limited motion caused by functional loss during a flare-up or after repeated use over time. If the examiner cannot estimate the degrees of additional range of motion loss during flare-ups or after repetitive use without resorting to speculation, the examiner should 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). L. B. CRYAN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD S. Gordon, Associate Counsel