Citation Nr: 18145694 Decision Date: 10/30/18 Archive Date: 10/29/18 DOCKET NO. 16-19 261 DATE: October 30, 2018 ORDER Entitlement to service connection for right ear hearing loss is denied. Entitlement to an initial compensable disability evaluation for service-connected left ear hearing loss is denied. REMANDED Entitlement to service connection for tinnitus is remanded. Entitlement to service connection for chronic left foot pain and dysfunction is remanded. Entitlement to service connection for chronic right foot pain and dysfunction is remanded. Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD) is remanded. Entitlement to an initial disability rating in excess of 60 percent for service-connected coronary artery disease is remanded. Entitlement to a total disability rating based on individual unemployability dut to service-connected disabilities (TDIU) is remanded. FINDINGS OF FACT 1. The preponderance of the evidence of record is against finding that the Veteran has, or has had at any time during the appeal, a current diagnosis of right ear hearing loss pursuant to VA regulations. 2. The Veteran’s left ear hearing loss disability has been manifested by no more than an average puretone threshold, at the frequencies of 1000, 2000, 3000, and 4000 Hertz (Hz), of 26.25 decibels (dB) and speech recognition scores of no lower than 100 percent. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for right ear hearing loss have not been met. 38 U.S.C. §§ 1101, 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a), 3.307, 3.309, 3.385. 2. The criteria for a compensable disability rating for left ear hearing loss disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.85, Diagnostic Code (DC) 6100. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran has active duty service from September 1970 to March 1972. Regarding the claim for TDIU, in an April 2018 statement, the Veteran enclosed updated medical records concerning his heart disability and stated that with the installation of his pacemaker, he was “severely limited to any form of employment. The United States Court of Appeals for Veterans Claims (Court) has held that a claim for a TDIU rating is part of an increased rating claim when such claim is raised by the record. See Rice v. Shinseki, 22 Vet. App. 447, 453 (2009). Accordingly, the Board finds that the issue of entitlement to TDIU is raised by the record, and is part and parcel of the increased rating claims pending before the Board. Id. Service Connection Service connection may be established for a disease or injury incurred in or aggravated during service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. To prevail on the issue of service connection, there must be (1) evidence of a current disability; (2) evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the present disability. Hickson v. West, 12 Vet. App. 247 (1999). Certain chronic diseases, such as organic diseases of the nervous system are subject to presumptive service connection if they manifest to a compensable degree within one year from separation from service even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C. §§ 1112, 1113; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). Sensorineural hearing loss is considered an organic disease of the nervous system and is subject to presumptive service connection under 38 C.F.R. § 3.309(a). For the showing of a chronic disease in service, there must be a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time of service. If chronicity in service is not established, evidence of continuity of symptoms after discharge is required to support the claim. 38 C.F.R. § 3.303(b). However, the use of continuity of symptoms to establish service connection is limited only to those diseases listed at 38 C.F.R. § 3.309(a) and does not apply to other disabilities which might be considered chronic from a medical standpoint. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Regulations also provide that service connection may be granted for a disability diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability is due to disease or injury which was incurred in or aggravated by service. 38 C.F.R. § 3.303(d). Hearing loss disability is defined by regulation. For the purpose 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 absence of in-service evidence of a hearing disability during service (i.e., one meeting the requirements of 38 C.F.R. § 3.385) is not always fatal to a service connection claim. Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Evidence of a current hearing loss disability and a medically sound basis for attributing that disability to service may serve as a basis for a grant of service connection for hearing loss where there is credible evidence of acoustic trauma due to significant noise exposure in service, post-service audiometric findings meeting the regulatory requirements for a hearing loss disability for VA purposes, and a medically sound basis upon which to attribute the post-service findings to the injury in service (as opposed to intercurrent causes). See Hensley v. Brown, 5 Vet. App. 155, 157 (1993). After considering all information including the lay and medical evidence of record in a case 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 benefit of the doubt will be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. The benefit of the doubt rule is inapplicable when the evidence preponderates against the claim. Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001). The Board has reviewed all the evidence in the Veteran’s claims file, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (holding that VA must review the entire record, but does not have to discuss each piece of evidence). Hence, the Board will summarize the relevant evidence where appropriate and the Board’s analysis below will focus specifically on what the evidence shows, or fails to show, as to the claims. 1. Entitlement to service connection for right ear hearing loss The Veteran seeks service connection for right ear hearing loss, which he asserts is related to his exposure to loud noises in service. The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that the Veteran does not have a current diagnosis of right ear hearing loss and has not had one at any time during the pendency of the claim or recent to the filing of the claim. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007); 38 C.F.R. § 3.303(a), (d). The Veteran was provided a March 2015 VA audiological evaluation wherein the puretone threshold findings and the speech discrimination score for his right ear did not meet the definition of a hearing loss disability as defined by 38 C.F.R. § 3.385. The March 2015 VA examiner also evaluated the Veteran and determined that, while he experienced clinical hearing loss in both ears, the right ear hearing loss did not meet the criteria to be considered a disability for VA purposes. Significantly, the Veteran has not presented or identified existing audiometric testing results that meet the requirements of that regulation. In so finding, the Board acknowledges the report from a private examination conducted in October 2014, which was received by VA in November 2014. In that report, the Veteran’s chiropractic physician, P.J.Y., stated that the Veteran had “30% hearing loss of the right ear which is more likely than not directly and causally related to [the Veteran’s] military service.” The Veteran’s chiropractic physician also noted that the Veteran had been tested in a very quiet room, then again in a room where normal day-to-day noise was introduced to test functional hearing under those conditions. This description of the Veteran’s hearing test does not appear to comport with the requirements of 38 C.F.R. § 4.85, which states that an examination for hearing impairment for VA purposes must be conducted by a state-licensed audiologist and must include a controlled speech discrimination test (Maryland CNC) and a puretone audiometry test. In fact, the chiropractic physician also added that the Veteran was to obtain a “confirmatory pure tone audiogram,” and that an “addendum” to the report would be made after that was received. However, no addendum was ever prepared and it does not appear that the Veteran underwent a separate audiogram. Therefore, the findings from this report may not serve to establish that the Veteran has a right ear hearing loss disability as defined by 38 C.F.R. § 3.385. While the Veteran is competent to report symptoms such as hearing loss, he is not competent to provide a diagnosis of right ear hearing loss per 38 C.F.R. § 3.385 in this case. The issue is medically complex, as it requires clinical testing as well as specialized medical education/knowledge of the interaction between multiple organ systems in the body/the ability to interpret complicated diagnostic medical testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Consequently, the Board gives more probative weight to the competent medical evidence. Increased Rating 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; 38 C.F.R. § 4.1. 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. 38 C.F.R. § 4.10. In determining the severity of a disability, the Board is required to consider the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the veteran, as well as the entire history of the veteran’s disability. 38 C.F.R. §§ 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). If the disability more closely approximates the criteria for the higher of two ratings, the higher rating will be assigned; otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21. In deciding this appeal, the Board has considered whether separate ratings for different periods of time, based on the facts found, are warranted, a practice of assigning ratings referred to as “staging the ratings.” See Hart v. Mansfield, 21 Vet. App. 505 (2007) (noting that staged ratings are appropriate whenever the factual findings show distinct time periods in which a disability exhibits symptoms that warrant different ratings). 2. Entitlement to an initial compensable disability evaluation for service-connected left ear hearing loss. The assignment of a disability rating for hearing impairment is “derived by a mechanical application of the rating schedule to the numeric designations assigned after audiometry evaluations are rendered.” Lendenmann v. Principi, 3 Vet. App. 345, 349 (1993). Specifically, organic impairment of hearing acuity is rated by using audiological test results, obtained by a state-licensed audiologist, and the basic rating method involves using both the results of controlled speech discrimination tests (Maryland CNC) and the average decibel threshold level as measured by pure tone audiometry tests at the frequencies of 1000, 2000, 3000, and 4000 Hertz. 38 C.F.R. § 4.85(a). Tests are conducted without hearing aids. The rating schedule establishes eleven auditory acuity levels ranging from numeric level I through numeric level XI, obtained by applying the findings to Table VI or VIa. 38 C.F.R. §§ 4.85, 4.86. The numeric designations for both ears are then applied to Table VII to derive the percentage evaluation, under Diagnostic Code 6100. In addition, 38 C.F.R. § 4.86 applies to exceptional patterns of hearing impairment. Under its provisions, when the pure tone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hz ) is 55 decibels (dB) or more, the rating specialist will determine the Roman Numeral designation for hearing impairment from either Table VI or Table VIa, whichever results in the higher numeral. Each ear will be evaluated separately. When the puretone threshold is 30 dB or less at 1000 Hz, and 70 dB or more at 2000 Hz, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or Table VIa, whichever results in the higher numeral. That numeral will then be elevated to the next higher numeral. 38 C.F.R. § 4.86. As noted above, the Veteran underwent a VA audiological examination in March 2015. Audiological testing at the time revealed puretone thresholds in dB for the left ear at 1000, 2000, 3000 and 4000 Hz of 10 dB, 20 dB, 35 dB, and 40 dB respectively, with an average over those frequencies of 26.25 dB. The speech recognition score was 100 percent in the left ear. Applying the results of the VA audiological examinations to Table VI yields a Roman number value of I in the left ear. See 38 C.F.R. § 4.85. Applying that value to Table VII, the Veteran’s left ear hearing loss disability was correctly evaluated as noncompensably disabling. Id. Exceptional patterns discussed in § 4.86 have not been demonstrated either. With respect to the VA audiology examinations, the audiologist must describe the functional effects caused by a hearing disability in the final report. Martinak v. Nicholson, 21 Vet. App. 447, 455-456 (2007). The Veteran informed the March 2015 examiner that he has difficulty hearing and understanding people in certain situations. These complaints are contemplated by the schedular criteria and do not provide a basis for any rating higher than what is assigned based on application of 38 C.F.R. § 4.85. The audiometric examination of record does not support a compensable disability rating for bilateral hearing loss disability. Although the Veteran submitted in November 2014, a private report from his chiropractic physician who states that the Veteran has “30% hearing loss of the left ear,” as previously discussed above, it does not appear that this hearing test was conducted according to the requirements of 38 C.F.R. § 4.85. Therefore, the findings reported by the chiropractic physician are not competent medical evidence and may not be used to rate the Veteran’s level of left ear hearing loss. Similarly, although the Veteran asserts that his left ear hearing loss disability warrants compensation, the medical evidence prepared by a skilled neutral professional is more probative. The criteria for rating hearing loss are based on March 2015 VA audiological evaluation results, as described. The Veteran offers no information that goes to those criteria. As such, his unsupported assertion that a compensable rating is warranted is not probative evidence. In this case, the numeric designations produce a noncompensable disability evaluation. REASONS FOR REMAND 1. Entitlement to service connection for tinnitus is remanded. The medical record reflects conflicting evidence regarding whether the Veteran has a present diagnosis of tinnitus. In particular, the November 2014 private report from the Veteran’s chiropractic physician includes a diagnosis of tinnitus in both ears. However, at the March 2015 VA audiological evaluation, the Veteran reported that he did not have any tinnitus or ringing in the ears. Therefore, no etiological opinion was provided. In light of the conflicting evidence, the Board finds another VA examination is necessary to determine whether a present diagnosis of tinnitus exists and if so, whether the tinnitus is caused by or related to in-service noise exposure. 2. Entitlement to service connection for chronic left foot pain and dysfunction and chronic right foot pain and dysfunction are remanded. The medical evidence of record includes the November 2014 report from the Veteran’s chiropractic physician. In that examination report, the Veteran was given a diagnosis of chronic right foot pain and chronic left foot pain complicated by left heel spur. Further, the chiropractic physician opined the conditions were permanent and progressive and began in service. This opinion is, however, not supported by evidence and rationale. Nevertheless, the Board finds the duty to obtain a VA examination is at least triggered by the medical diagnoses provided. As such, a remand is necessary prior to adjudicating these claims. 3. Entitlement to service connection for an acquired psychiatric disorder, to include PTSD is remanded. Pertaining to the Veteran’s claim for entitlement to service connection for PTSD, the Board finds there are again conflicting medical diagnoses. While the March 2015 VA examination found the Veteran did not have PTSD, the November 2014 private report by the Veteran’s chiropractic physician indicated the Veteran had a provisional diagnosis of PTSD. However, the chiropractic physician does not provide thorough reasons and bases for his findings. Therefore, probative weight to the diagnosis is unable to be given at this time. Importantly, in his April 2016 VA Form 9, the Veteran also contends further development is necessary to substantiate his alleged stressors. The Veteran provides a date range and location for where his stressors occurred. In light of the conflicting medical diagnoses as well as the potentially outstanding evidence which may substantiate his stressors and impact his diagnoses, a remand is necessary. Additionally, the record reflects another psychiatric diagnosis of anxiety disorder, not otherwise specified. See March 2015 VA examination. However, no medical opinion regarding the causation of his anxiety disorder was provided in the examination. A medical opinion is also needed on examination prior to the Board’s adjudication of the claim. 4. Entitlement to an initial disability rating in excess of 60 percent for service-connected coronary artery disease is remanded. The Veteran asserts that his coronary artery disease has increased in severity and now warrants a rating of 100 percent. The Veteran was last examined by VA in March 2015. Medical records since the examination show continued treatment as well as the installation of a pacemaker. As such, the Veteran should be provided an opportunity to report for a VA examination to ascertain the current severity and manifestations of his coronary artery disease. 5. Entitlement to a TDIU is remanded Lastly, the Board finds that the inferred claim of entitlement to a TDIU is inextricably intertwined with the issue of entitlement to a disability rating in excess of 60 percent for service-connected coronary artery disease because a decision on the latter claim may have an impact on the former claim. Consequently, the claim of entitlement to TDIU must be remanded for contemporaneous adjudication. Harris v. Derwinski, 1 Vet. App. 180 (1991). The Board also notes the record does not reflect the Veteran’s submission of a VA Form 21-8940 which should be obtained to assist with adjudication of this issue. The matters are REMANDED for the following action: 1. Provide the Veteran with notice of the laws and regulations governing a TDIU and request that he complete and return a VA Form 21-8940. 2. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any tinnitus and bilateral foot pain and dysfunction. The examiner must opine whether the Veteran has a diagnosis of each of the claimed disabilities and, if so, whether it is at least as likely as not related to an in-service injury, event, or disease, including in-service medical treatment. 3. After the Veteran’s reported stressors have been developed, schedule him for a psychiatric examination to determine the nature and etiology of any acquired psychiatric disorder, to include PTSD. If PTSD is diagnosed, the examiner must explain how the diagnostic criteria are met and opine whether it is at least as likely as not related to a verified in-service stressor. If any other acquired psychiatric disorders are diagnosed, such as an anxiety disorder, the examiner must opine whether each diagnosed disorder is at least as likely as not related to an in-service injury, event, or disease. 4. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected coronary artery disease. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. The examiner must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. To the extent possible, the examiner should identify any symptoms and functional impairments due to coronary artery disease alone and discuss the effect of the Veteran’s coronary artery disease on any occupational functioning and activities of daily living. If it is not possible to provide a specific measurement, or an opinion regarding flare-ups, symptoms, or functional impairment without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). A. ISHIZAWAR Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD K. Churchwell, Counsel