Citation Nr: 18151948 Decision Date: 11/21/18 Archive Date: 11/20/18 DOCKET NO. 16-29 902 DATE: November 21, 2018 ORDER Entitlement to a compensable rating for bilateral hearing loss is denied. Entitlement to an evaluation in excess of 10 percent for tinnitus is denied. REMANDED Entitlement to an evaluation in excess of 10 percent for coronary artery disease status post coronary artery bypass grafting is remanded. Entitlement to an evaluation in excess of 50 percent for posttraumatic stress disorder (PTSD) is remanded. Entitlement to a total disability rating based upon individual unemployability due to service-connected disabilities (TDIU) is remanded. FINDINGS OF FACT 1. At worst, the Veteran has Level II hearing loss in the right ear and Level I hearing loss in the left ear. 2. The Veteran’s service-connected tinnitus is assigned a 10 percent rating, which is the maximum rating authorized for tinnitus under Diagnostic Code 6260, for either a unilateral or bilateral condition. CONCLUSIONS OF LAW 1. The criteria for a compensable evaluation for bilateral hearing loss have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 3.102, 3.159, 4.1-4.14, 4.21, 4.85, 4.86, Diagnostic Code 6100 (2017). 2. The criteria for an evaluation in excess of 10 percent for tinnitus have not been met. 38 U.S.C. §§ 1155 (2012); 38 C.F.R. §§ 3.102, 3.159, 4.1-4.14, 4.21, 4.87, Diagnostic Code 6260 (2017); Smith v. Nicholson, 451 F.3d 1344 (Fed. Cir. 2006). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1965 to August 1969. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from October 2013, September 2014, and June 2016 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. Law and Analysis Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist with regard to the issues decided herein. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board.”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. 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 for that rating. 38 C.F.R. § 4.7. In considering the severity of a disability, it is essential to trace the medical history of the veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41. Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). While the regulations require review of the recorded history of a disability by the adjudicator to ensure a more accurate evaluation, the regulations do not give past medical reports precedence over the current medical findings. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, where the question for consideration is the propriety of the initial rating assigned, evaluation of the evidence since the effective date of the grant of service connection is required. Fenderson v. West, 12 Vet. App. 119, 125-26 (1999). Where VA’s adjudication of the claim for increase is lengthy and factual findings show distinct time periods where the service-connected disability exhibits symptoms which would warrant different ratings, different or “staged” ratings may be assigned for such different periods of time. Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007); Fenderson, 12 Vet. App. at 126-27. Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits. VA shall consider all information and lay and medical evidence of record in a case and when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the weight of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). Bilateral Hearing Loss The Veteran’s bilateral hearing loss is currently assigned a noncompensable evaluation pursuant to 38 C.F.R. § 4.85, Diagnostic Code 6100. In evaluating service-connected hearing loss, disability ratings are derived by a mechanical application of the rating schedule to the numeric designations assigned after audiometric evaluations are performed. Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). Evaluations of bilateral hearing loss range from noncompensable to 100 percent based on an organic impairment of hearing acuity, as measured by controlled speech discrimination tests in conjunction with the average hearing threshold, as measured by pure tone audiometric tests in the frequencies of 1000, 2000, 3000 and 4000 cycles per second. The rating schedule establishes 11 auditory acuity Levels designated from Level I for essentially normal hearing acuity through Level XI for profound deafness. VA audiological evaluations are conducted using a controlled speech discrimination test together with the results of pure tone audiometry tests. The vertical line in Table VI (printed in 38 C.F.R. § 4.85) represents nine categories of the percentage of discrimination based on a controlled speech discrimination test. The horizontal columns in Table VI represent nine categories of decibel loss based on the pure tone audiometry test. The numeric designation of impaired hearing (Levels I through XI) is determined for each ear by intersecting the vertical row appropriate for the percentage of discrimination and the horizontal column appropriate to the pure tone decibel loss. The percentage evaluation is found from Table VII (in 38 C.F.R. § 4.85 and the statement of the case) by intersecting the vertical column appropriate for the numeric designation for the ear having the better hearing acuity and the horizontal row appropriate for the numeric designation for the level for the ear having the poorer hearing acuity. For example, if the better ear had a numeric designation of Level “V” and the poorer ear had a numeric designation of Level “VII” the percentage evaluation is 30 percent. See 38 C. F. R. § 4.85. Regulations also provide that in cases of exceptional hearing loss, i.e., when the pure tone threshold at each of the four specified frequencies (1,000, 2,000, 3,000 and 4,000 hertz) is 55 decibels 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. 38 C.F.R. § 4.86 (a). The provisions of 38 C.F.R. § 4.86 (b) further provide that when the pure tone threshold is 30 decibels or less at 1,000 Hertz and 70 decibels or more at 2,000 Hertz, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or VIa, whichever results in the higher numeral. That numeral will then be evaluated to the next higher Roman numeral. In considering the evidence of record under the laws and regulations as set forth above, the Board concludes that the Veteran is not entitled to a compensable evaluation for bilateral hearing loss. During the August 2013 VA examination, an audiogram revealed pure tone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 20 20 25 95 90 LEFT 20 15 25 90 90 The Maryland CNC controlled speech discrimination test revealed speech recognition of 94 percent in both ears. These audiometric findings equate to Level II hearing loss in the right ear and Level I hearing loss in the left ear. See 38 C.F.R. § 4.85, Table VI. When those values are applied to Table VII, it is apparent that the currently assigned noncompensable evaluation for the Veteran’s bilateral hearing loss is warranted under the provisions of 38 C.F.R. § 4.85. The Board has also considered the provisions of 38 C.F.R. § 4.86 governing exceptional patterns of hearing impairment. However, the audiological report does not demonstrate that each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) in either ear is 55 decibels or more or that the pure tone threshold is 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hertz in either ear. Therefore, the provisions of 38 C.F.R. § 4.86 are not applicable. See 38 C.F.R. § 4.86 (a), (b). Thus, the August 2013 VA audiological evaluation has resulted in findings corresponding to a noncompensable evaluation. During the September 2014 VA examination, an audiogram revealed pure tone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 15 20 30 90 90 LEFT 15 15 25 90 85 The Maryland CNC controlled speech discrimination test revealed speech recognition of 94 percent in the right ear and 96 percent in the left ear. These audiometric findings equate to Level II hearing loss in the right ear and Level I hearing loss in the left ear. See 38 C.F.R. § 4.85, Table VI. When those values are applied to Table VII, a noncompensable evaluation for the Veteran’s bilateral hearing loss is warranted under the provisions of 38 C.F.R. § 4.85. The Board has also considered the provisions of 38 C.F.R. § 4.86 governing exceptional patterns of hearing impairment. However, the audiological report does not demonstrate that each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) in either ear is 55 decibels or more or that the pure tone threshold is 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hertz in either ear. Therefore, the provisions of 38 C.F.R. § 4.86 are not applicable. See 38 C.F.R. § 4.86 (a), (b). Thus, the September 2014 VA audiological evaluation has resulted in findings corresponding to a noncompensable evaluation. Based on the foregoing, the audiological examinations do not show that the Veteran is entitled to a compensable evaluation. The Board has considered the Veteran’s lay assertions regarding his diminished hearing. However, the assignment of disability ratings for hearing impairment are derived by a mechanical application of the Rating Schedule to the numeric designations based on the audiology examination results. See Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). It is clear from the Rating Schedule that a higher rating can be awarded only when loss of hearing has reached a specified measurable level. As such, an increased evaluation is not warranted. See also Doucette v. Shulkin, 28 Vet. App. 366 (2017) (the rating criteria for hearing loss contemplate the functional effects of decreased hearing and difficulty understanding speech in an everyday work environment, as these are the effects that VA’s audiometric tests are designed to measure). For these reasons, the Board finds that the weight of the evidence is against a compensable evaluation for hearing loss. As such, the benefit-of-the-doubt rule does not apply, and the claim is denied in this regard. Gilbert, 1 Vet. App. 49 (1990). Tinnitus The Veteran’s tinnitus is currently assigned a 10 percent evaluation pursuant to 38 C.F.R. § 4.87, Diagnostic Code 6260 for recurrent tinnitus. The resolution of this claim is wholly dependent on the application of the law. See Dela Cruz v. Principi, 15 Vet. App. 143, 149 (2001); Mason v. Principi, 16 Vet. App. 129 (2002). Tinnitus is defined as “a noise in the ears such as ringing, buzzing, roaring, or clicking.” Smith v. Principi, 17 Vet. App. 168, 170 (2003) (quoting Dorland’s Illustrated Medical Dictionary 1714 (28th ed. 1994)). The Court has specifically held that tinnitus is a type of disorder capable of lay observation and description. Charles v. Principi, 16 Vet. App. 370, 374 (2002). Tinnitus is evaluated under Diagnostic Code 6260, which was revised effective June 13, 2003, to clarify existing VA practice that only a single 10 percent evaluation is assigned for “recurrent” tinnitus, whether the sound is perceived as being in one ear, both ears, or in the head. 38 C.F.R. § 4.87, Diagnostic Code 6260, Note (2) (2017). In Smith v. Nicholson, 19 Vet. App. 63, 78 (2005), the Court held that the pre-1999 and pre-June 13, 2003, versions of Diagnostic Code 6260 required the assignment of dual ratings for bilateral tinnitus. VA appealed this decision to the Federal Circuit and stayed the adjudication of tinnitus rating cases affected by the Smith decision. In Smith v. Nicholson, 451 F.3d 1344 (Fed. Cir. 2006), the Federal Circuit concluded that the Court erred in not deferring to the VA’s interpretation of its own regulations, 38 C.F.R. § 4.25 and Diagnostic Code 6260, which limits a veteran to a single 10 percent maximum rating for tinnitus, regardless of whether the tinnitus is unilateral or bilateral. Subsequently, the stay of adjudication of tinnitus rating cases was lifted. With regard to the evaluation assigned for tinnitus, the Veteran has been assigned the maximum schedular rating available for tinnitus of 10 percent under 38 C.F.R. §4.87, Diagnostic Code 6260. As there is no legal basis upon which to award separate schedular evaluations for tinnitus in each ear, the Veteran’s appeal must be denied. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). There is also no basis to “stage” the Veteran’s 10 percent rating for his tinnitus, as his symptoms have remained consistent throughout the entire appeal period and he has been in receipt of the maximum 10 percent during the entire appeal period. Fenderson, 12 Vet. App. at 126. Based on the foregoing, as a matter of law, entitlement to an evaluation in excess of 10 percent for service-connected tinnitus must be denied. The Veteran and his representative have not raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 368 (2017) (the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). REASONS FOR REMAND Coronary Artery Disease The Veteran has contended that he should be entitled to an evaluation in excess of 10 percent for his coronary artery disease status post coronary artery bypass grafting. His coronary artery disease has been evaluated under Diagnostic Codes 7005-7017 for coronary bypass surgery, which is based in part on the level of METs (metabolic equivalent) that a veteran can perform. 38 C.F.R. § 4.104, Diagnostic Code 7005. Even if the requirement for a 10 percent evaluation (based on need for continuous medication) or 30 percent evaluation (based on presence of cardiac hypertrophy or dilatation) is met, METs testing is required, except when there is a medical contraindication; when the left ventricular ejection fraction has been measured and is 50 percent or less; when chronic congestive heart failure is present or there has been more than one episode of congestive heart failure within the past year; and when a 100 percent evaluation can be assigned on another basis. During the most recent September 2014 VA examination, an interview-based METs test was performed during which the Veteran reported having dyspnea, fatigue, and angina at a workload of 5 to 7 METs. An exercise stress test was not performed. The examiner noted that accurate METs could not be obtained by the subjective history provided because it is limited by the Veteran’s comorbid conditions. Instead, the examiner explained that left ventricular ejection fraction is a more accurate and objective representation of cardiac METs. The examiner concluded that, because the Veteran had a left ventricular ejection fraction of 55 percent, a METs capacity limitation would not be expected. Nevertheless, the September 2014 VA examiner also noted that there was no medical contraindication for not performing the METs testing, and there were no episodes of congestive heart failure noted. Given the September 2014 VA examiner’s statement that the interview-based METs test conducted was subjective, and given that there was no medical reason for not performing an exercised based METs test, a remand is necessary to obtain an additional VA examination to ascertain the severity and manifestations of the Veteran’s service-connected coronary artery disease. PTSD The Veteran is currently assigned a 50 percent evaluation for his service-connected PTSD pursuant to 38 C.F.R. §§ 4.130, Diagnostic Code 9411. During the July 2013 and September 2014 VA examinations, the Veteran reported that he had a good relationship with his wife and children and that he was working part-time in a real estate position. However, in a March 2017 evaluation issued by R.B. (initials used to protect privacy), a vocational disability expert, the Veteran reported that he was separated from his wife and had minimal relationships with his children. He also reported that he was having a harder time communicating with others and often has difficulty completing a full workday. Given the report of the Veteran’s worsening symptomatology, the Board finds that additional VA examinations are needed to ascertain the current severity and manifestations of the Veteran’s service-connected PTSD. See Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994); VAOPGCPREC 11-95 (1995). TDIU The Board notes that the claim for TDIU is inextricably intertwined with the issues being remanded. As such, the disposition of the TDIU claim must be deferred pending the resolution of those claims. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). The matters are REMANDED for the following action: 1. The Agency of Original Jurisdiction (AOJ) should request that the Veteran provide the names and addresses of any and all health care providers who have provided treatment for his service-connected coronary artery disease and PTSD. After acquiring this information and obtaining any necessary authorization, the AOJ should obtain and associate these records with the claims file. The AOJ should also obtain any outstanding VA treatment records. 2. After completing the foregoing development, the Veteran should be afforded a VA examination to ascertain the current severity and manifestations of his service-connected coronary artery disease. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the claims file, including any more recent treatment records obtained on remand. It should be noted that the Veteran is competent to attest to matters of which he has first-hand knowledge, including observable symptomatology. If there is a clinical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. The examiner should report all signs and symptoms necessary for rating the Veteran’s coronary artery disease under the rating criteria. In particular, the examiner should state the number of workload METs resulting in dyspnea, fatigue, angina, dizziness, or syncope. He or she should also indicate whether the Veteran has had chronic congestive heart failure or more than one episode of acute congestive heart failure in the past year. The examiner should further state whether the Veteran has left ventricular dysfunction, and if so, the percent of ejection fraction. In addition, the examiner should address whether there is evidence of cardiac hypertrophy or dilatation on electrocardiogram, echocardiogram, or x-ray. A clear rationale for all opinions would be helpful, and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. Because it is important “that each disability be viewed in relation to its history[,]” 38 C.F.R. § 4.1 (2015), copies of all pertinent records in the Veteran’s claims file, or in the alternative, the claims file, must be made available to the examiner for review. 3. After completing the foregoing development, the Veteran should be afforded a VA examination to ascertain the current severity and manifestations of his service-connected PTSD. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the claims file. It should be noted that the Veteran is competent to attest to observable symptomatology. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. The examiner should report all signs and symptoms necessary for rating the Veteran’s disability under the General Rating Formula for Mental Disorders. The findings of the examiner should address the level of social and occupational impairment attributable to the Veteran’s PTSD. A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. Because it is important “that each disability be viewed in relation to its history[,]”38 C.F.R. § 4.1, copies of all pertinent records in the Veteran’s claims file, or in the alternative, the claim file, must be made available to the examiner for review. 4. After completing the foregoing development, the AOJ should schedule the Veteran for a VA examination to determine the combined effects of his service-connected disabilities and any resulting impairment. The examiner should address how the Veteran’s service-connected disabilities alone result in functional impairment and comment on the Veteran’s ability to function in an occupational environment. If possible, he or she should also indicate if there is any form of employment that the Veteran could perform, and if so, what type. A written copy of the report should be associated with the electronic claims folder. 5. The AOJ should review the examination reports to ensure that they are in compliance with this remand. If the reports are deficient in any manner, the AOJ should implement corrective procedures. 6. After completing these actions, the AOJ should conduct any other development as may be indicated by a response received as a consequence of the actions taken in the preceding paragraphs. J.W. ZISSIMOS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Saikh, Associate Counsel