Citation Nr: 19113236 Decision Date: 02/22/19 Archive Date: 02/22/19 DOCKET NO. 18-18 361 DATE: February 22, 2019 ORDER Entitlement to service connection for a blood disease, to include as due to herbicide exposure, is denied. Entitlement to an effective date prior to April 21, 2013 for the grant of service connection of coronary artery disease with stent is denied. Entitlement to an effective date prior to April 21, 2013 for the grant of service connection of bilateral hearing loss is denied. Entitlement to an initial disability evaluation of 30 percent for coronary artery disease with stent is grated. Entitlement to an initial compensable evaluation for bilateral hearing loss is denied. REMANDED Entitlement to service connection for chronic kidney disease, to include as due to herbicide exposure, is remanded. FINDINGS OF FACT 1. The preponderance of the evidence of record is against finding that the Veteran has had a diagnosis of a blood disease at any time during or approximate to the pendency of the claim. 2. In a Fully Developed Claim application received by VA on April 21, 2014, the Veteran informed VA he wished to file service connections claims for heart disease and hearing loss. No informal claim or other communication requesting service connection for heart disease or bilateral hearing loss was received by VA prior to April 21, 2014. 3. The Veteran’s coronary artery disease caused dyspnea, mild regurgitation, LVEF greater than 50 percent, a METs level of 5 to 7, and required continuous medication. 4. At worst, the Veteran has Level I hearing loss in the right ear and Level I hearing loss in the left ear. CONCLUSIONS OF LAW 1. The criteria for service connection for a blood disease, to include as due to herbicide exposure, are not met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2018). 2. The criteria for an effective date prior to April 21, 2013 for the grant of service connection of coronary artery disease with stent have not been met. 38 U.S.C. §§ 5103, 5103A, 5107, 5108, and 5110 (2012); 38 C.F.R. §§ 3.156, 3.157, 3.158, 3.160 and 3.400 (2018). 3. The criteria for an effective date prior to April 21, 2013 for the grant of service connection of bilateral hearing loss have not been met. 38 U.S.C. §§ 5103, 5103A, 5107, 5108, and 5110 (2012); 38 C.F.R. §§ 3.156, 3.157, 3.158, 3.160 and 3.400 (2018). 4. The criteria for an initial disability evaluation of 30 percent for coronary artery disease with stent have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 3.326(a), 4.1 - 4.14, 4.104, Diagnostic Code 7005 (2018). 5. The criteria for an initial compensable rating for bilateral hearing loss are not met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.159, 3.321, 4.1 - 4.14, 4.85, 4.86, Diagnostic Code (DC) 6100 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 1953 to February 1973. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a March 2015 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Fort Snelling, Minnesota. Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred or aggravated in active military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). 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). Generally, establishing service connection requires (1) evidence of a current disability; (2) medical, or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Additionally, a veteran who served in the Republic of Vietnam during active service from January 9, 1962 through on May 7, 1975, shall be presumed to have been exposed to an herbicide agent, unless there is affirmative evidence of non-exposure. 38 U.S.C. §§ 1116; 38 C.F.R. § 3.307. If a veteran was exposed to an herbicide agent (including Agent Orange) during active service and has contracted an enumerated disease to a degree of 10 percent or more at any time after service (except for chloracne and early-onset peripheral neuropathy, which must be manifested within a year of the last exposure to an herbicide agent during service), the veteran is entitled to a presumption of service connection even though there is no record of such disease during service. U.S.C. § 1112; 38 C.F.R. § 3.307, 3.309(e). The list of diseases that are deemed associated with herbicide exposure includes “ischemic heart disease,” which includes, but is not limited to: acute, sub-acute, and old myocardial infarction; atherosclerotic cardiovascular disease including coronary artery disease (including coronary spasm) and coronary bypass surgery; and stable, unstable, and Prinzmetal’s angina. 38 C.F.R. § 3.309 (e), Note (2). In contrast, “ischemic heart disease” does not include hypertension or any other condition that does not qualify within the generally accepted medical definition of ischemic heart disease. Id. The Secretary of Veterans Affairs has determined that there is no positive association between exposure to herbicides and any other condition for which the Secretary has not specifically determined that a presumption of service connection is warranted. 38 C.F.R. § 3.309 (e). 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. 1. Entitlement to service connection for a blood disease, to include as due to herbicides The Veteran contends he is entitled to service connection for a blood disease caused by herbicide exposure during service. The Veteran’s military personnel records show he had service in the Republic of Vietnam. The Board concludes that the Veteran does not have a current diagnosis of a blood disease 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’s service treatment records fail to show he was ever treated for or diagnosed with a blood disease. His reports of medical examination are normal and do not indicate he had any condition associated with a blood disease. Private medical records do not contain any treatment notes regarding a blood disease. The claims file does not contain any VA medical records. In February 2015, the Veteran was afforded a VA examination to assess whether he has any hematologic or lymphatic conditions. The VA examiner determined the Veteran did not have a diagnosis for any such condition. He noted that the Veteran reported developing fatigue after exertion, and that he did not take any medication for the claimed condition of a blood disease. The VA examiner concluded that based on lab results, the Veteran does not have a hematologic condition, and his fatigue is most likely attributed to his heart condition. While the Veteran believes he has a current diagnosis of a blood disease, he is not competent to provide a diagnosis in this case. The issue is medically complex, as it requires specialized medical education and 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 from the VA examiner. Accordingly, the claim of entitlement to service connection for a blood disease, to include as due to herbicide exposure, must be denied. Effective Dates Unless otherwise specifically provided in Chapter 51 of Title 38 of the United States Code, the effective date of an award based on an original claim shall be fixed in accordance with the facts found, but shall not be earlier than the date of application therefor. 38 U.S.C. § 5110(a) (2012). The effective date shall be the date of receipt of the Veteran’s claim or the date on which entitlement arose, whichever is later. 38 U.S.C. § 5110; 38 C.F.R. § 3.400 (b)(2)(i) (2018). Under VA’s Fully Developed Claim program, an effective date may be assigned up to one year prior to the date of claim under certain circumstances. See PL 112-154, Section 506; VBA Manual M21-1, III.i.3.B.4.a. Determining the Appropriate Effective Date for a Grant of Benefits Under the FDC Program. 2. Entitlement to an effective date prior to April 21, 2013 for the grant of service connection of coronary artery disease with stent and bilateral hearing loss On April 21, 2014, VA received a Fully Developed Claim disability application for service connection for heart disease and hearing loss. The date of the claim, therefore, is April 21, 2014, the date on which the Veteran informed VA he wished to file a claim. As the Veteran’s coronary artery disease and bilateral hearing loss were determined to have been caused by service, entitlement arose in service. However, the Veteran did not indicate that he wished to file a claim for service connection for these disabilities until April 21, 2014. No formal claim, informal claim, or other communication requesting service connection for a left knee disorder was received by VA prior to April 21, 2014. See 38 C.F.R. §§ 3.1(p), 3.155 (2018). The effective date of the grant of service connection is the date of receipt of the Veteran’s claim or the date on which entitlement arose, whichever is later. Entitlement arose in service but the date of receipt of the claim was April 21, 2014. However, based on the Veteran filing a Fully Developed Claim, the effective date is one year prior to the date of the claim, which in this instance would be April 21, 2013, as determined by the RO. Therefore, April 21, 2013 is the correct effective date, and the claims of earlier effective dates for coronary artery disease and bilateral hearing loss must be denied. Increased Rating Disability evaluations are determined by applying the criteria set forth in the Schedule for Rating Disabilities to the Veteran’s current symptomatology. 38 U.S.C. § 1155 (2012); 38 C.F.R. Part 4 (2017). Where there is a question as to which of two disability evaluations shall be applied, 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 Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as “staged ratings,” whether it is an initial rating case or not. Fenderson v. West, 12 Vet. App. 119, 126-27 (1999); Hart v. Mansfield, 21 Vet. App. 505, 519 (2007). VA is responsible for determining whether the evidence supports the claim, with the veteran prevailing, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b). 3. Entitlement to an initial disability evaluation in excess of 10 percent for coronary artery disease with stent Diagnostic code 7005 provides ratings for coronary artery disease (CAD). A 10 percent rating is warranted for documented CAD resulting in workload of greater than 7 metabolic equivalents (METs) but not greater than 10 METs results in dyspnea, fatigue, angina, dizziness, or syncope, or; continuous medication required. A 30 percent rating is warranted for 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 electro-cardiogram, echocardiogram, or X-ray. A 60 percent rating is warranted for 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 100 rating is warranted 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. 38 C.F.R. § 4.104, Diagnostic Code 7005 (2018). One MET (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 The Veteran was afforded a VA examination in February 2015. The examiner diagnosed CAD with stent. The examiner determined the Veteran does not have myocardial infarction, congestive heart failure, arrhythmia, infectious heart conditions, or pericardial adhesions. The Veteran requires continuous medication for his heart condition. An echocardiogram revealed left ventricular ejection fraction (LVEF) measured at 55 percent with mild regurgitation. An interview-based METs test indicated the Veteran’s METs level was between five and seven METS with dyspnea. The VA examiner stated the estimated METs level due solely to the Veteran’s heart condition is 5 METs. He also stated the objective evidence proving the Veteran’s LVEF better reflects the Veteran’s current cardiac functional status. The Board finds the Veteran is entitled to an initial disability rating of 30 percent for his service-connected CAD. The claims file does not contain any additional medical records that include METs testing or LVEF measurements. The February 2015 VA examiner provided separate conclusions that could result in different disability evaluations. Due to the VA examiner’s determination that the Veteran’s LVEF is more than 50 percent and that his current cardiac functioning is best explained by his LVEF, the RO found the Veteran was entitled to only a 10 percent disability rating. However, the VA examiner also determined the Veteran has a workload of five to seven METs, which would warrant a 30 percent rating. After resolving all doubt in favor of the Veteran, the Board finds the Veteran is entitled to a 30 percent evaluation due to having a workload of five to seven METs. The Board notes that in accordance with 38 C.F.R. 4.100, it must be ascertained whether there is evidence of hypertrophy of cardiac dilatation, and, if present, would warrant a 30 percent evaluation. The VA examiner failed to indicate whether there is evidence of hypertrophy of cardiac dilatation. However, given that a 30 percent disability rating has been awarded, a new VA examination is not required solely to determine if hypertrophy or cardiac dilatation is present. An even higher rating of 60 percent rating is not warranted because there is no evidence of 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 which has resulted in dyspnea, fatigue, angina, dizziness, or syncope, or; left ventricular dysfunction with an ejection fraction of 30 to 50 percent. Accordingly, an initial disability evaluation of 30 percent for coronary artery disease is granted. 4. Entitlement to an initial compensable evaluation for bilateral hearing loss Hearing loss is rated under 38 C.F.R. §§ 4.85, 4.86, DC 6100. Under DC 6100, hearing impairment evaluations are derived by a mechanical application of the ratings schedule to the numeric designations assigned resulting from audiometric evaluations. See Lendenmen v. Principi, 3 Vet. App. 345, 349 (1992). Hearing impairment evaluations will be conducted without the use of hearing aids. 38 C.F.R. § 4.85(a). Under DC 6100, Table VI assigns a Roman numeral designation (I through XI) for hearing impairment based on the pure tone threshold average and controlled speech discrimination (Maryland CNC) testing. Table VIa assigns a Roman numeral designation for hearing impairment based only on the pure tone threshold average, and is used when speech discrimination testing is not appropriate or when indicated under the provisions of 38 C.F.R. § 4.86 regarding exceptional patterns of hearing impairment. The “pure tone threshold average” is the sum of the pure tone thresholds at 1000, 2000, 3000, and 4000 Hertz, divided by four. 38 C.F.R. § 4.85 (d). Table VII is used to determine the rating assigned by combining the Roman numeral designations for hearing impairment of each ear. 38 C.F.R. § 4.85 (e). At the February 2015 VA audiological examination, the Veteran's pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 Avg. RIGHT 25 20 25 45 28.75 LEFT 25 55 65 65 52.5 Speech audiometry revealed speech recognition ability of 98 percent in the right ear and 94 percent in the left ear using the Maryland CNC speech discrimination test. The Veteran was assessed to have sensorineural hearing loss in both ears. The functional effect of the Veteran’s hearing loss was that he must ask others to repeat themselves during conversations. Applying the criteria for evaluating hearing loss to the findings of the February 2015 audiometric evaluation results in designation of Level I in both ears, which warrants a non-compensable rating. See 38 C.F.R. § 4.85, DC 6100, Tables VI and VII. The preponderance of the evidence is against finding the Veteran is entitled to a compensable rating for bilateral hearing loss at any point during the appellate period. The VA medical examination audiometric results are probative and valid for rating purposes. The results include both pure tone thresholds and speech discrimination testing using the Maryland CNC test. The results of the tests reflect the severity of the Veteran’s bilateral hearing loss at the time. The Veteran has not provided any additional medical records in support of his claim. Accordingly, the claim for an initial compensable rating for bilateral hearing loss is denied. REMANDED ISSUE 1. Entitlement to service connection for chronic kidney disease as due to exposure to herbicides is remanded. As noted above, the Veteran served in the Republic of Vietnam and is presumed to have been exposed to herbicide agents. 38 C.F.R. § 3.307 (a)(1)(6). The Veteran directly attributes his chronic kidney disease to his in-service exposure to herbicide agents, including Agent Orange. The Veteran has submitted private medical records showing he has a diagnosis of stage III chronic kidney disease. Chronic kidney disease is not a condition VA has determined is warranted for presumptive service connection based on exposure to herbicides. However, the Board notes that if a veteran is not entitled to presumptive service connection for a disability as due to herbicide exposure, service connection on a direct basis also must be considered. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). Accordingly, an opinion should be obtained regarding the nature and etiology of the Veteran’s chronic kidney disease, to include whether it was directly related to the Veteran’s conceded in-service exposure to herbicide agents. The matter is REMANDED for the following action: 1. Obtain all outstanding treatment records related to the Veteran’s chronic kidney disease from any government or non-government medical provider, and associate them with the claims file. 2. Provide the Veteran an examination to determine the etiology of chronic kidney disease. The entire claims file should be made available to and be reviewed by the examiner, and it should be confirmed that such records were available for review. Any indicated tests and studies must be accomplished and all clinical findings must be reported in detail and correlated to a specific diagnosis. The examiner must also consider the Veteran’s lay statements and contentions. Any explanation for all opinions expressed must be provided. 3. Based on the examination and review of the record, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that chronic kidney disease is related to the Veteran’s service, including his exposure to herbicide agents, such as Agent Orange. 4. After completion of the above and any other appropriate development deemed necessary, readjudicate the issue on appeal. If the benefit sought on appeal remains denied, the Veteran should be provided a supplemental statement of the case (SSOC). An appropriate period of time should be allowed for response before the case is returned to the Board. Cynthia M. Bruce Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD N. Miller, Associate Counsel