Citation Nr: 18146414 Decision Date: 11/01/18 Archive Date: 10/31/18 DOCKET NO. 16-15 357 DATE: November 1, 2018 ORDER Entitlement to an initial compensable rating for bilateral hearing loss is denied. Entitlement to an initial rating in excess of 10 percent disabling for ischemic heart disease (IHD) is denied. REMANDED Entitlement to service connection for a skin condition, to include chloracne as due to exposure to an herbicide agent, i.e., Agent Orange (AO), is remanded. FINDINGS OF FACT 1. For the entirety of the appeal period, the Veteran’s bilateral hearing loss is manifested by hearing impairment corresponding to no higher than an auditory acuity of Level III in the right ear and Level II in the left ear. 2. For the entirety of the appeal period, the Veteran’s IHD did not result in workload of less than 7 metabolic equivalents (METs) results in dyspnea, fatigue, angina, dizziness or syncope, nor was there evidence of cardiac hypertrophy or dilation. CONCLUSIONS OF LAW 1. The criteria for an initial compensable rating for bilateral hearing loss have not been met. 38 U.S.C. §§ 1155, 5103(a), 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 4.85, Diagnostic Code (DC) 6100 (2018). 2. The criteria for an initial disability rating in excess of 10 percent for IHD have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.159, 4.3, 4.7, 4.104, DC 7005 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1969 to September 1971, with approximately 1 year, 2 months prior service. He served in the Republic of Vietnam from November 1970 to September 1971. These matters come before the Board of Veterans’ Appeals (Board) on appeal from an April 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. Jurisdiction of the Veteran’s claims was subsequently transferred to the RO in Pittsburgh, Pennsylvania. In August 2016, the Veteran appeared with his representative for a Travel Board hearing before the undersigned. A transcript of that proceeding has been associated with the record. Increased Rating A disability rating is determined by the application of VA’s Schedule for Rating Disabilities (Rating Schedule). 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred in or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C. § 1155. 1. Entitlement to an initial compensable rating for bilateral hearing loss Legal Principles Disability ratings for service-connected hearing impairment are determined through a mechanical application of the Rating Schedule to the numeric designations assigned after audiometric evaluations are made. Bruce v. West, 11 Vet. App. 405 (1998); Lendenmann v. Principi, 3 Vet. App. 345 (1992). The regulations set forth eleven auditory acuity levels, designated from Roman numerals I to XI, in escalating order of hearing impairment. See 38 C.F.R. § 4.85. The appropriate auditory level is identified as the point where the percentage of speech discrimination and puretone threshold average intersect. Id. The regulations also provide that in cases of exceptional hearing loss, i.e., when the puretone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz (Hz)) is 55 decibels (dB) or more, the Roman numeral designation will be determined from either Table VI or Table VIA, whichever results in the higher numeral. Each ear will be evaluated separately. 38 C.F.R. § 4.86(a). Likewise, a Roman numeral designation will be determined from either Table VI or Table VIA, whichever results in the higher numeral, when the puretone threshold is 30 dB or less at 1000 Hz, and 70 dB or more at 2000 Hz. That numeral will then be elevated to the next higher Roman numeral. Each ear will be evaluated separately. 38 C.F.R. § 4.86(b). For speech recognition scores to be valid for VA disability rating purposes, an examiner must utilize the Maryland CNC word list in performing the examination. 38 C.F.R. § 4.85(a). Discussion Based upon a review of the evidence of record, the Board finds that an initial compensable rating for the Veteran’s service-connected bilateral hearing loss is not warranted. In making this finding, the Board applied the clinical findings of the June 2011 audiological examination to Table VII, i.e., Roman numeral III in the right ear and Roman numeral II in the left ear, respectively, and a noncompensable evaluation is assigned. On the authorized audiological evaluation in June 2011, pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 RIGHT 30 45 50 55 LEFT 30 35 40 50 Speech audiometry revealed speech recognition ability of 76 percent in the right ear and of 84 percent in the left ear. Considering that the Veteran’s right ear manifests an average puretone threshold of 45 with 76 percent speech discrimination, reference to 38 C.F.R. § 4.85, Table VI, shows his right ear hearing loss to be Level III impairment. Considering that the Veteran’s left ear manifest an average puretone threshold of 38.8, with 84 percent speech discrimination, reference to 38 C.F.R. § 4.85, Table VI, shows his left ear hearing loss to be Level II impairment. An exceptional pattern of hearing impairment is not shown. Applying the clinical findings of the June 2011 VA audiological examination to Table VII, a noncompensable evaluation is assigned. Specifically, the point where the Roman numeral designations for each ear, i.e., Roman numeral III in the right ear and Roman numeral II in the left ear intersect indicates a zero percent evaluation. Medical treatment records since the June 2011 VA examination reveal ongoing complaints and treatment for hearing impairment. However, these records are consistently negative for any change in hearing impairment. As indicated, the Veteran testified at a hearing in August 2016. At that time, the Veteran did not indicate any worsening of severity in his hearing impairment; rather, he simply expressed his belief that a compensable evaluation was warranted. As such, there is no indication or any actual worsening of severity discernable in any statement or medical report dated after June 2011. In the absence of evidence of worsening since the June 2011 VA examination, see Snuffer v. Gober, 10 Vet. App. 400, 403 (1997), the Board is satisfied that the medical evidence of record adequately addresses the Veteran’s current level of impairment, see generally Weggenmann v. Brown, 5 Vet. App. 281, 284 (1993). The Board has also considered the various lay statements from the Veteran attesting to the impact of his hearing loss, i.e. difficulty hearing in background noise. However, the Veteran, while competent to report symptoms associated with hearing loss, is not competent to report that his hearing acuity is of sufficient severity to warrant a higher evaluation under DC 6100 because such an opinion requires medical expertise, i.e., training in evaluating hearing impairment, which he has not been shown to have. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Charles v. Principi, 16 Vet. App. 370 (2002). As such, the Board finds the medical evidence of record to be more probative. The Board is sympathetic to the Veteran’s position that a compensable rating is warranted in this case. However, the audiometric examination results, as compared to the rating criteria, do not warrant a compensable rating. Accordingly, based on a review of the foregoing evidence, and the applicable laws and regulations, the Board finds that the preponderance of the evidence is against the Veteran’s claim for an initial compensable schedular rating for bilateral hearing loss; and therefore, the claim must be denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 2. Entitlement to an initial increased rating in excess of 10 percent disabling for IHD Legal Principles The Veteran’s disability is current rated as 10 percent disabling under DC 7005. Under DC 7005, a 10 percent rating is assigned where the evidence shows heart disease resulting in workload of greater than 7 METs but not greater than 10 METs results in dyspnea, fatigue, angina, dizziness, or syncope, or; when continuous medication is required. A next-higher 30 percent rating is assigned where the evidence shows heart disease resulting in workload of greater than 5 METs but not greater than 7 METs results in dyspnea, fatigue, angina, dizziness, or syncope, or; evidence of cardiac hypertrophy or dilatation on electrocardiogram, echocardiogram, or X-ray. A 60 percent rating is assigned where the evidence shows heart 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 results in dyspnea, fatigue, angina, dizziness, or syncope, or; left ventricular dysfunction with an ejection fraction of 30 to 50 percent. A highest 100 percent rating is assigned where the evidence shows heart 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. Discussion Based upon a review of the evidence, the Board finds that an initial increased rating in excess of 10 percent disabling for IHD is not warranted because the evidence does not reflect the Veteran satisfies the criteria for a higher rating. In making this finding, the Board notes that medical evidence of record overwhelmingly reflects the Veteran’s heart disease results in in workload of greater than 7 METs. Report of the November 2011 VA examination reflects, in pertinent part, a history of IHD diagnosed in 2006. The examiner referenced a stress test performed a few years prior at Ellwood City Hospital. Parenthetically, medical records dated in July 2007 from Ellwood City Hospital reflect, in pertinent part, stress test was negative for myocardial ischemia and the Veteran had “very good exercise tolerance.” Examiner noted no changes after that. At the November 2011 examination, the Veteran reported that he was a fulltime attorney, exercises approximately two days per week, and enjoys golfing. Based on the Veteran’s reported activity, the examiner noted that the Veteran’s heart disease results in workload of greater than 5 to 7 METs. The examiner also noted there is no evidence of cardiac hypertrophy or dilation. Chest x-rays were performed and found to be normal. An addendum opinion was obtained in December 2011. At that time, the examiner clarified that the Veteran’s heart disease results in workload of greater than 7 METs but not greater than 10 METs. In doing so, he indicated that this finding is consistent with the activity level described by the Veteran and the Veteran’s pertinent medical history, including his treatment plan. As indicated, the next-higher 30 percent rating is assigned where the evidence shows heart disease resulting in workload of greater than 5 METs but not greater than 7 METs results in dyspnea, fatigue, angina, dizziness, or syncope, or; evidence of cardiac hypertrophy or dilatation on electrocardiogram, echocardiogram, or X-ray. Based on a review of the evidence of record, the Board does not find the Veteran met these criteria at any point during the pendency of this appeal. Medical treatment records since the November 2011 VA examination reveal ongoing treatment for IHD. However, these records are consistently negative for any change in severity. The Board acknowledges a May 2012 statement by the Veteran wherein he indicated that his workload has substantially decreased and he refrains from physical activity. However, this is not supported by the record. Contemporaneous medical evidence dated in May 2012 reflects the Veteran denied any chest pain, shortness of breath, fatigue, or dizziness. Similar findings were noted in September 2013 and September 2014. Treatment records dated in September 2016 reflect the Veteran is still working and physically active. See Rucker v. Brown, 10 Vet. App. 67, 73 (1997) (lay statements found in medical records when medical treatment was being rendered may be afforded greater probative value; statements made to physicians for purposes of diagnosis and treatment are exceptionally trustworthy because the declarant has a strong motive to tell the truth in order to receive proper care). Of note, private treatment records dated in January 2016, from the Veteran’s cardiologist, reflect, in pertinent part, a negative stress test and that the Veteran was able to achieve a workload of 12.8 METs. As such, there is no indication or any actual worsening of severity discernable in any medical report dated after November 2011. In the absence of evidence of worsening since the November 2011 VA examination, see Snuffer, supra, the Board is satisfied that the medical evidence of record adequately addresses the Veteran’s current level of impairment, see generally Weggenmann, supra. Again, the Board has considered the Veteran’s statements. While the Veteran is competent to report symptoms associated with IHD, questions of the medical nature and severity of such disability is a matter suited to the realm of medical expertise. See Davidson, supra. Based on a review of the foregoing evidence, and the applicable laws and regulations, the Board finds that the preponderance of the evidence is against the Veteran’s claim for an initial rating in excess of 10 percent disabling for IHD at any point during the appeal; and therefore, the claim must be denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND Entitlement to service connection for a skin condition, to include chloracne as due to exposure to an herbicide agent, is remanded. Regrettably, review of the record reveals that the claim must again be remanded for additional development prior to appellate consideration. The Board notes that the RO did not provide the Veteran with an examination with respect to this claim. VA’s duty to assist includes providing a medical examination when such is necessary to make a decision on a claim. 38 U.S.C. § 5103A(d) (2012); 38 C.F.R. § 3.159(c)(4) (2018). Here, the Board notes the Veteran has consistently reported experiencing a skin condition in and since service, which he attributes to exposure to AO while serving in Vietnam. The Veteran has verified in-country service in Vietnam between November 1970 and September 1971. As such, exposure to AO is presumed. 38 C.F.R. § 3.307(a)(6)(iii). At his August 2015 hearing, when asked about his skin condition, the Veteran reiterated that he experienced a skin condition since service, albeit he may not have been formally diagnosed. This is further strengthened by a lay statement dated in August 2016 from the Veteran’s spouse wherein she indicated that she has been married to the Veteran since August 1977 (met the Veteran a year prior in 1976), and has observed an ongoing skin condition on the Veteran’s back since then. Post-service VA medical treatment records dated between November 2009 and November 2016 are negative for any clinical diagnosis of chloracne or any other skin condition. The primary record in support of the presence of a skin condition is a physician’s statement dated in August 2016, which reflects the Veteran has chloracne. However, the presence of strikeouts creates ambiguity as to who prepared this documentation. Nevertheless, the Board finds, at the very least, that this evidence triggers VA’s duty to assist. In light of the foregoing, the Board finds that a remand in order to obtain a medical examination and opinion commenting on the evidence of record is necessary in order to adjudicate the claim. See McLendon v. Nicholson, 20 Vet. App. 79, 83-86 (2006). Additionally, in a statement dated in March 2018, the Veteran’s spouse indicated that the Veteran has been receiving “treat[ment] with a dermatologist over the years.” Unfortunately, these records have not been associated with the record. Given that such records may have a bearing on the case, the Board finds an attempt to obtain these records is warranted. The matter is REMANDED for the following action: 1. Obtain all outstanding post-service medical treatment records from VA treatment facilities. 2. Contact the Veteran and afford him the opportunity to identify by name, address, and dates of treatment or examination any medical records relevant to his claims, including any treatment identified as receiving from a private dermatologist. After securing the necessary information and releases, attempt to obtain and associate those identified treatment records with the claims file. 3. Thereafter, schedule the Veteran for VA examination by an appropriate medical professional to determine the nature and etiology of the Veteran’s skin condition, including chloracne. The electronic claims file must be made accessible to the examiner for review. Following a review of the claims file and medical history and examination of the Veteran, the VA examiner must offer an opinion as to the following: Whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s skin condition is caused by, or otherwise etiologically related to military service, including exposure to AO. Any opinion should reflect consideration of the evidence of record regarding continuity of symptomatology since service. The examiner must provide a rationale for all opinions provided. If an opinion cannot be made without resort to speculation, the examiner should provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be made. BARBARA B. COPELAND Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD S. Kalolwala, Associate Counsel