Citation Nr: 18150484 Decision Date: 11/15/18 Archive Date: 11/15/18 DOCKET NO. 16-58 913 DATE: November 15, 2018 ORDER Entitlement to service connection for malaria is dismissed. Entitlement to service connection for dysentery is dismissed. Entitlement to service connection for burns on back is dismissed. Entitlement to an evaluation greater than 30 percent for coronary artery disease, status post myocardial infarction and coronary artery bypass graft surgery, is denied. REMANDED Entitlement to service connection for a bilateral hearing loss disability is remanded. Entitlement to service connection for trench foot is remanded. Entitlement to service connection for shrapnel wound to the chest is remanded. FINDINGS OF FACT 1. In an August 2018 statement, the Veteran’s attorney withdrew the appeal pertaining to the claims of entitlement to service connection for malaria, dysentery, and burns on the back. 2. Throughout the appeal period, the Veteran’s coronary artery disease, status post myocardial infarction and coronary artery bypass graft surgery, manifested in dyspnea, fatigue, and angina resulting from a workload of 5 to 7 METs, and the left ventricle ejection fraction was not lower than 50 percent. The Veteran’s coronary artery disease, status post myocardial infarction and coronary artery bypass graft surgery has not been manifested by congestive heart failure. CONCLUSIONS OF LAW 1. The criteria for withdrawal of the appeal pertaining to the claim of entitlement to service connection for malaria have been met. 38 U.S.C. § 7105(b)(2), (d)(5); 38 C.F.R. § 20.204. 2. The criteria for withdrawal of the appeal pertaining to the claim of entitlement to service connection for dysentery have been met. 38 U.S.C. § 7105(b)(2), (d)(5); 38 C.F.R. § 20.204. 3. The criteria for withdrawal of the appeal pertaining to the claim of entitlement to service connection for burns on the back have been met. 38 U.S.C. § 7105(b)(2), (d)(5); 38 C.F.R. § 20.204. 4. The criteria for establishing an evaluation greater than 30 percent for service-connected coronary artery disease, status post myocardial infarction and coronary artery bypass graft surgery, have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107(b); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.2, 4.3, 4.7, 4.10, 4.104, Diagnostic Codes 7017-7005. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1964 to October 1965 and from November 1966 to June 1968. These matters are on appeal from a May 2012 rating decision. The Board remanded the appeal for additional evidentiary development in March 2018. Withdrawal 1. Entitlement to service connection for malaria. 2. Entitlement to service connection for dysentery. 3. Entitlement to service connection for burns on back. The Board may dismiss any appeal that fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105. An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204. Withdrawal may be made by the Veteran or by his or her authorized representative. 38 C.F.R. § 20.204. In an August 2018 statement, the Veteran’s attorney withdrew the appeal pertaining to the claims of entitlement to service connection for malaria, dysentery, and burns on the back noting that the Veteran “wished to drop pursuit of” his appeal of the denial of service connection malaria, dysentery, and burns on his back. Hence, there remain no allegations of errors of fact or law for appellate consideration on these issues. Accordingly, the Board does not have jurisdiction to review these issues, and they are dismissed.   Increased Evaluation 4. Entitlement to an evaluation greater than 30 percent for coronary artery disease, status post myocardial infarction and coronary artery bypass graft surgery. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (rating schedule). 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. Other applicable, general policy considerations include interpreting reports of examination in light of the whole recorded history; reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability, 38 C.F.R. § 4.2; resolving any reasonable doubt regarding the degree of disability in favor of the claimant, 38 C.F.R. § 4.3; where there is a question as to which of two evaluations apply, assigning a higher of the two where the disability picture more nearly approximates the criteria for the next higher rating, 38 C.F.R. § 4.7; and evaluating functional impairment on the basis of lack of usefulness, and the effects of the disabilities upon the person’s ordinary activities, 38 C.F.R. § 4.10. See Schafarth v. Derwinski, 1 Vet. App. 589 (1991). Where the claimant has expressed dissatisfaction with the assignment of an initial evaluation following an award of service connection for that disability, separate ratings can be assigned for separate periods of time based on the facts found, a practice known as “staged” ratings. Fenderson v. West, 12 Vet. App. 119 (1999). The Veteran’s coronary artery disease, status post myocardial infarction and coronary artery bypass graft surgery, is currently rated as 30 percent disabling by analogy under Diagnostic Code 7005, effective August 31, 2010, the date of the Veteran’s claim for service connection. The Veteran is in receipt of a 100 percent evaluation from April 21, 2015, to June 30, 2015, and from October 7, 2015, to December 31, 2015. These evaluations were granted due to the Veteran’s treatment for myocardial infarction. The 100 percent periods are not on appeal before the Board. Under Diagnostic Code 7005, a 30 percent evaluation is assigned where a workload of greater than 5 METs but not greater than 7 METs results in dyspnea, fatigue, angina, dizziness, or syncope; or where there is evidence on an electrocardiogram, echocardiogram, or X-ray of cardiac hypertrophy or dilatation. 38 C.F.R. § 4.104, Diagnostic Code 7005. A 60 percent rating requires 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 resulting in dyspnea, fatigue, angina, dizziness, or syncope; or, left ventricular dysfunction with an ejection fraction of 30 to 50 percent. A 100 percent evaluation is warranted where there is chronic congestive heart failure; or, a workload of 3 METs or less resulting in dyspnea, fatigue, angina, dizziness, or syncope; or, left ventricular dysfunction with an ejection fraction of less than 30 percent. Id. One MET, or metabolic equivalent, is defined as 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 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. The Veteran was afforded a VA examination in April 2011. His left ventricular ejection fraction was between 55 percent and 60 percent. The Veteran did not have congestive heart failure. The Veteran reported cardiac symptoms when performing activities such as golfing without a cart, mowing the lawn with a push mower, or doing heavy yard work like digging, which the examiner estimated to be a workload of greater than 5 METs but not greater than 7 METs. In February 2012, the Veteran underwent another VA examination. The VA examiner diagnosed coronary artery disease. The Veteran did not have congestive heart failure. His left ventricular ejection fraction was greater than 55 percent. The Veteran participated in an interview-based METs test. He reported dyspnea, fatigue, and angina when performing activities such as walking up one flight of stairs, golfing without a cart, mowing the lawn with a push mower, or doing heavy yard work, which the examiner estimated to be a workload of greater than 5 METs but not greater than 7 METs. Finally, the Veteran underwent his most recent VA examination in August 2018. The VA examiner confirmed the Veteran’s diagnosis of coronary artery disease. The Veteran did not have congestive heart failure. His left ventricular ejection fraction was between 55 percent and 59 percent. The Veteran participated in an interview-based METs test. He reported dyspnea, fatigue, and angina when performing activities such as walking up one flight of stairs, golfing without a cart, mowing the lawn with a push mower, or doing heavy yard work, which the examiner estimated to be a workload of greater than 5 METs but not greater than 7 METs. The VA examiner commented that cardiac stress testing was medically contraindicated because the Veteran’s METs were easily estimated based on the known disease, level of physical activity, and reported symptoms. The examination findings are consistent with the Veteran’s VA treatment records. In August 2018, the Veteran’s attorney wrote that a remand was required to obtain the exact testimony given by the Veteran at the August 2018 VA examination and to obtain exercise-stress testing. However, the Board finds that the August 2018 VA examination is adequate. The VA examiner explained why exercise stress testing was not required and described the Veteran’s reported symptomology when performing activities such as climbing stairs, golfing without a cart, mowing the lawn with a push mower, or doing heavy yard work. The Board finds that the Veteran’s lay assertions regarding the severity of his coronary artery disease, status post myocardial infarction and coronary artery bypass graft surgery, are competent and credible. However, his lay statements are outweighed by the VA examination reports of record that were based on the Veteran’s lay statements. The VA examiners specifically considered the Veteran’s lay statements while providing his workload in METS. The VA examination reports were based on a review of the record, consideration of the Veteran’s lay statements, and the VA examiners’ medical expertise. As a result, the VA examination reports are highly probative. The Veteran’s attorney has not produced any evidence to support a finding that the most recent VA examiner is incompetent. Based on this evidence, the Board finds that an evaluation greater than 30 percent is not warranted. The VA examinations contain results best described by the criteria for a 30 percent evaluation. None of the evidence indicates a workload of 3 to 5 METs resulting in dyspnea, fatigue, angina, dizziness, or syncope, a left ventricular ejection fraction of less than 50 percent, or congestive heart failure – the requirements for higher ratings. The Board finds the evidence does not support an evaluation higher than 30 percent for the Veteran’s coronary artery disease, status post myocardial infarction and coronary artery bypass graft surgery, at any point during the appeal period. 38 C.F.R. § 4.104, Diagnostic Code 7005. REASONS FOR REMAND 1. Entitlement to service connection for a bilateral hearing loss disability is remanded. In March 2018, the Board remanded the Veteran’s claim of entitlement to service connection for a bilateral hearing loss disability to obtain an adequate medical opinion that determined whether there was clear and unmistakable evidence that the bilateral hearing loss did not undergo an increase during the Veteran’s active service. VA obtained an addendum medical opinion in July 2018. The VA examiner opined that it was less likely than not that the Veteran’s bilateral hearing loss disability was incurred in or caused by the claimed in-service injury, event or illness. She acknowledged that the Veteran’s entrance examination noted hearing loss at 4000 Hertz in both ears. However, the Veteran did not have a significant threshold shift at his separation examination. The examiner concluded that, based on the current knowledge of acoustic trauma and the instantaneous or rapid development of noise-induced hearing loss, there was no evidence of acoustic trauma or aggravation to the Veteran’s pre-existing hearing loss in either ear. This opinion is inadequate because it does not apply the correct evidentiary standard. In August 2018, the Veteran’s attorney submitted a study conducted by the National Institute of Health that discusses the delayed impact of noise exposure on auditory function. Based upon the forgoing, a remand required to obtain an adequate medical opinion that considers the study submitted by the Veteran’s attorney. 2. Entitlement to service connection for trench foot is remanded. The Veteran was afforded a VA skin disease examination in August 2018. The VA examiner diagnosed a fungal infection of the right great toe with secondary infection of the right great toe and partial nail removal in 1968 with no residuals. She indicated that there was subungual pigmentation of the great right toe and opined that it was less likely than not due to the Veteran’s in-service matrixectomy. The VA examiner explained that the record did not reveal evidence of complications related to the matrixectomy. The Veteran’s separation examination was normal. In August 2018, the Veteran’s attorney asserted that the August 2018 VA opinion is inadequate because the VA examiner did not provide rationale for her opinion that the Veteran’s subungual pigmentation of the great right toe is unrelated to his in-service matrixectomy. The Veteran’s attorney that the subungual pigmentation of the great right toe may be a symptom of tinea versicolor. He included a medical article for his assertion that the Veteran may have tinea versicolor. Based upon the forgoing, a remand is required to obtain an addendum opinion regarding the etiology of the Veteran’s subungual pigmentation of the great right toe. 3. Entitlement to service connection for shrapnel wound to the chest is remanded. In August 2018, the Veteran was afforded a VA examination to determine the etiology of his claimed shrapnel wound to the chest. The VA examiner identified a scar on the left upper chest. She indicated that she was unable to give an opinion regarding the etiology of this scar without resorting to speculation. She explained that the Veteran did not remember the origin of the scar. The examiner indicated that “it was a bit long” for a piece of shrapnel and that the scar could potentially be from the excision of a retention cyst during active duty. The Board finds that this opinion is inadequate because it implies that the evidence must be certain rather than “at least as likely as not.” Therefore, a remand is required to obtain an adequate VA medical opinion. The matters are REMANDED for the following actions: 1. Obtain an addendum opinion from an appropriate clinician regarding whether there is clear and unmistakable evidence that the Veteran’s bilateral hearing loss disability did not undergo an increase during active service, i.e., was not aggravated during service. In rendering his or her opinion the VA examiner should address the medical study submitted by the Veteran’s attorney in August 2018. 2. Obtain an addendum opinion from an appropriate clinician regarding whether the Veteran’s subungual pigmentation of the great right toe is at least as likely as not related to his in-service matrixectomy. The VA examiner is also asked to address the August 2018 assertion by the Veteran’s attorney that the Veteran’s subungual pigmentation of the great right toe is a symptom of his tinea versicolor. 3. Obtain an addendum opinion from an appropriate clinician regarding whether the Veteran’s scar on the left upper chest is at least as likely as not related to his in-service cyst excision or shrapnel wounds. The VA examiner is also asked to address the Veteran’s November 2011 statement that he removed small pieces of wire and metal from his chest for years after service and the May 1965 in-service treatment for an injury to the Veteran’s chest wall. 4. After the above development, and any additionally indicated development, has been completed, readjudicate the issues on appeal. If the benefits sought are not granted to the Veteran’s satisfaction, send the Veteran and his representative a Supplemental Statement of the Case and provide an opportunity to respond. If necessary, return the case to the Board for further appellate review. DAVID L. WIGHT Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD R. R. Watkins, Counsel