Citation Nr: 21003477 Decision Date: 01/21/21 Archive Date: 01/21/21 DOCKET NO. 16-20 269 DATE: January 21, 2021 ORDER 1. Entitlement to a compensable rating for bilateral hearing loss is denied. 2. Entitlement to a rating in excess of 10 percent for coronary artery disease (CAD) is denied. FINDING OF FACT 1. The Veteran’s hearing acuity is not shown to at any time have been worse than Level I in either ear. 2. The Veteran’s CAD is not shown to have been manifested by a workload of seven METs or less, or by evidence of cardiac hypertrophy or dilatation on electrocardiogram (EKG), echocardiogram (ECG), or X-ray; left ventricular dysfunction with an ejection fraction of 50 percent or less is not shown. CONCLUSION OF LAW 1. A compensable rating for bilateral hearing loss is not warranted. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.85, 4.86 Diagnostic Code (Code) 6100. 2. A rating in excess of 10 percent for CAD is not warranted. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.10, 4.104, Code 7005. REASONS AND BASES FOR FINDING AND CONCLUSION The appellant is a Veteran who served on active duty from October 1967 to October 1971. These matters are before the Board of Veterans’ Appeals (Board) on appeal of November 2015 (which granted service connection for CAD, rated 10 percent, effective July 14, 2015) and April 2016 Department of Veterans Affairs (VA) rating decisions. In February 2020, a videoconference hearing was held before the undersigned; a transcript is in the record. In May 2020, the matters were remanded for additional development. At the outset, the Board finds there has been substantial compliance with its May 2020 remand directives pertaining to the matters on appeal. See D’Aries v. Peake, 22 Vet. App. 97, 105 (2008). 1. Entitlement to a compensable rating for bilateral hearing loss is denied. Ratings for hearing loss disability are derived from Table VII of 38 C.F.R. § 4.85 by a mechanical application of the rating schedule to numeric designations assigned after audiometric evaluations are performed. Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). The numeric designations correspond to eleven auditory acuity levels, indicated by Roman numerals, where Level I denotes essentially normal acuity and Level XI denotes profound deafness. The assignment of the appropriate numeric level of hearing acuity is based on the results of controlled speech discrimination tests in combination with average hearing (puretone) thresholds. The average threshold is obtained from puretone audiometry in the frequencies of 1000, 2000, 3000, and 4000 Hertz. 38 C.F.R. § 4.85. Rating specialists use either Table VI or VIA of 38 C.F.R. § 4.85 to determine the correct Roman numeral designation. Table VIA is used when speech discrimination tests are inappropriate due to language difficulties, inconsistent speech discrimination scores, etc., or where there is an exceptional pattern of hearing loss (as defined in 38 C.F.R. § 4.86). One such pattern occurs when puretone thresholds at each of the four specified frequencies is 55 decibels or more. Another occurs when the puretone threshold at 1000 Hertz is 30 decibels or less and the puretone threshold at 2000 Hertz is 70 decibels or more. 38 C.F.R. § 4.86. On March 2016 audiometry (reported by his VA treating provider), puretone thresholds, in decibels were: HERTZ 1000 2000 3000…4000 Average Right 10 10 35 50 26 Left 10 10 30 50 25 Speech audiometry with the Maryland CNC list was not conducted. Accordingly, that testing is inadequate for rating purposes. On April 2016 VA audiological examination, audiometry revealed that puretone thresholds were: HERTZ 1000 2000 3000 4000 Average Right 10 10 35 50 26 Left 15 15 30 45 26 Speech audiometry revealed speech recognition ability of 98 percent in each ear. The Veteran reported that using the telephone was challenging and loud noises are bothersome. He stated that he was self-conscious about wearing hearing aids. A February 2020 VA audiology treatment record notes the Veteran reported no subjective change to his hearing. Audiometry revealed that puretone thresholds were: HERTZ 1000 2000 3000 4000 Average Right 10 10 40 55 29 Left 10 20 40 60 33 Speech audiometry was not conducted with the Maryland CNC list, and that testing is inadequate for rating purposes. On July 2020 VA audiological examination audiometry, puretone thresholds were: HERTZ 1000 2000 3000 4000 Average Right 10 5 45 55 29 Left 10 25 40 55 33 Speech audiometry revealed speech recognition ability of 96 percent in the right ear and 98 percent in the left. The Veteran reported difficulty understanding speech when there were multiple speakers or with background noise, difficulty hearing without visual cues and from a distance, and that he avoids venues with loud noise (such as movies and sporting events). Applying the results of April 2016 VA examination to Table VI reveals that the Veteran had Level I hearing acuity in each ear. Under Table VII, such hearing acuity warrants a 0 percent rating. The findings do not reflect an exceptional pattern of hearing loss, nor did the examiner indicate that speech recognition scores were unreliable; therefore, Table VIA is not for application. Applying the results of July 2020 VA examination to Table VI reveals that the Veteran had Level I hearing acuity in each ear. Under Table VII, such hearing acuity warrants a 0 percent rating. The findings do not reflect an exceptional pattern of hearing loss, nor did the examiner indicate that speech recognition scores were unreliable; therefore, Table VIA is not for application. The Board finds that the April 2016 and July 2020 examinations are adequate for rating purposes, as they were conducted in accordance with regulatory guidelines, included the findings necessary for rating the hearing loss disability, and included notation of the Veteran’s reports of the functional impact that is due hearing loss disability (which were accepted at face value by the providers). There is no other audiometry in the record suitable for rating the Veteran’s hearing loss disability. As the assignment of a disability rating for hearing impairment is derived by mechanical application of the rating schedule to the numeric designations assigned after audiometry evaluations are rendered, there is no doubt as to the proper evaluation to be assigned. Lendenmann, 3 Vet. App. 345; 38 C.F.R. § 4.85, Tables VI-VII, Code 6100. The findings on official audiometry on April 2016 and July 2020 VA examinations fall squarely within the parameters for a 0 percent rating, and that rating encompasses the Veteran’s self-reported functional impairment (difficulty hearing in groups and from a distance), which the Board finds no reason to question. Accordingly, the preponderance of the evidence is against the claim for a compensable rating for bilateral hearing loss. 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). Therefore, the appeal in the matter must be denied. 2. Entitlement to a rating in excess of 10 percent for CAD is denied. Disability evaluations are determined by the application of a schedule of rating, which is based on the average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § Part 4. Separate diagnostic codes identify the various disabilities. Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. Where, as here, the appeal is from the initial rating decision assigned with an award of service connection, the severity of the disability during the entire period from the award of service connection to the present, and the possibility of “staged” ratings for distinct periods when varying degrees of disability were shown, must be considered. Fenderson v. West, 12 Vet. App. 119 (1999). Where there is a question as to which of two ratings shall be assigned, the higher criteria will be assigned if the disability more closely approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Reasonable doubt regarding the degree of disability is to be resolved in favor of the claimant. 38 C.F.R. § 4.3. A claim will be denied only if the preponderance of the evidence is against the claim. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 56. CAD is rated under 38 C.F.R. § 4.104, Code 7005. A 10 percent rating is warranted when workload greater than 7 METs but not greater than 10 METs results in dyspnea, fatigue, angina, dizziness, or syncope; or, with continuous medication required. A 30 percent rating is warranted when workload is greater than 5 METs but not greater than 7 METs; or, with evidence of cardiac hypertrophy or dilatation on EKG, ECG, or X-ray. A 60 percent rating is warranted where there is 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, with left ventricular dysfunction with an ejection fraction of 30 to 50 percent. A 100 percent rating requires chronic congestive heart failure; or, a 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. [Note (2) defines one MET 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 of METs by exercise testing 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 A July 2015 private treatment record (by Dr. T.K.) notes complaints of dyspnea on exertion and claudication; the Veteran denied chest pain, shortness of breath, dizziness, or palpitations. A Lexiscan stress test was planned. It was noted that he was could not participate in treadmill testing due to spinal stenosis. A July 24, 2015 private ECG found left ventricular ejection fraction was 60 to 65 percent. The left atrium was mildly dilated, and there was evidence of mild sclerosis of the aortic valve, mild mitral regurgitation, mild pulmonic regurgitation, and mild tricuspid regurgitation. A July 24, 2015 private disability benefits questionnaire (DBQ) report by Dr. T.K. notes an exercise stress test was to be completed in August 2015. The provider stated that the Veteran’s interview-based METs level was greater than 3 METs but not greater than 5 METs, with symptoms of dyspnea, fatigue, angina, dizziness, and syncope. He indicated there was evidence of cardiac hypertrophy or dilation and opined the Veteran was symptomatic (“chest pain, SOB, leg pain”). An August 10, 2015 private exercise stress test report found a 10.1 METs workload and that left ventricular fraction was 51 percent. The EKG response to exercise was nonischemic, he had good tolerance to exertion, the SPECT myocardial perfusion images demonstrated inferior wall diaphragmatic attenuation, and there was no transient ischemic dilatation. An August 2015 private treatment record notes Dr. T.K. the stress test was reported to be normal. On November 2015 VA heart examination, the Veteran reported mild fatigue with prolonged exertional activities but that he remains active physically and works out 6 days a week. It was noted that continuous medication was required for control of his heart condition; that he had not had congestive heart failure; and that he underwent a coronary artery bypass surgery in 2013. There was no evidence of cardiac hypertrophy or dilatation. Left ventricular ejection fraction was 51 percent. The examiner noted that an August 2015 exercise stress test found a METs activity of 10.1; did not show ischemia. and the test was terminated due to symptoms related to the cardiac condition. January 2016 and March 2018 private treatment records note the Veteran denied having chest pain, shortness of breath, dyspnea, dizziness, and palpitations. In the January 2016 treatment record, Dr. T.K’s assessment was CAD with no symptoms of angina. A March 2019 private treatment record notes the Veteran denied chest pain, shortness of breath, dizziness, or palpitations. A March 2019 VA treatment record also notes he denied chest pain, palpitation, orthopnea, shortness of breath, or dizziness; his CAD was found to be asymptomatic. A July 2019 private treatment record notes the Veteran underwent a carotid ultrasound to obtain cardiac clearance for hip replacement surgery and no significant elevation of flow was found. Dr. T.K. ordered a Lexiscan stress test to assess the progression of reversibility seen on a nuclear stress test two years prior, indicating if it is stable, he will clear him for surgery. An August 2019 private nuclear stress test found left ventricular ejection fraction was 54 percent. EKG response was nonischemic and SPECT myocardial perfusion images were normal (there was no evidence of ischemia, infarction, or transient ischemic dilatation). A September 2019 private treatment record notes the provider found the Veteran would be a moderate risk for surgery, but that it may proceed. A December 2019 private treatment record (following hip replacement surgery) notes the Veteran denied chest pain, shortness of breath, dizziness, and palpitations. In a February 2020 statement, Dr. T.K. stated the Lexiscan nuclear stress test on August 2019 demonstrated that the bypasses are patent and non-ischemic. On July 2020 VA heart examination, the Veteran denied having symptoms attributable to his cardiac diagnosis; he denied shortness of breath, chest pain, dizziness, and palpitations. It was noted that continuous medication was required for control of his heart condition; that he had not had congestive heart failure; and that there is no evidence of cardiac hypertrophy or cardiac dilatation. The VA examiner stated that the Veteran’s interview-based METs level was greater than 7 METs but not greater than 10 METs. At the outset, it is noteworthy that deciding this matter has been complicated by the Veteran’s failure to cooperate with VA attempts to obtain private treatment records, notably from his private cardiologist. The May 2020 Board remand noted private treatment records were outstanding. A May 2020 VA letter to the Veteran asked him to submit authorizations for VA to obtain records from his private providers of evaluations or treatment for CAD. While he submitted some private treatment records from the Ocean Heart Group, he has not submitted an updated VA 21-4142; it is assumed that either no additional records exist, or that any existing records do not support his claim. Regardless, VA cannot obtain private records without the Veteran’s identification of the records and authorization for VA to secure them. The Board finds that the preponderance of the evidence is against a finding that a rating in excess of 10 percent is warranted for the Veteran’s CAD. The Board notes the single estimated METs of less than 7 during the period on appeal, based on an interview by the Dr. T.K in July 2015. However, the regulatory guidelines provide (see note 2 under 38 C.F.R. § 4.104) that such estimation may be used when diagnostic testing cannot be completed, and the provider identifies by examples activities that are precluded). Here, it was noted that a stress test was scheduled in the near future, and one was conducted 17 days later (by that same provider) and established workload tolerance of 10.1 METs with good tolerance to exertion. Therefore, use of the estimated METS level found in July 2015 for rating purposes would be inappropriate. Notably, while the Veteran reported to a November 2015 examiner that he experiences mild fatigue with prolonged [emphasis added] exertional activities he also indicated that that he remains active physically and works out 6 days a week. The July 2020 VA examination found that continuous medication was required, and that the Veteran had a workload capacity greater than 7, but no greater than 10, METs, which is also consistent with the criteria for the 10 percent rating that has been assigned. While his private cardiologist found the Veteran’s left atrium was mildly dilated on July 24, 2015 echocardiogram, an August 10, 2015 exercise stress test (conducted and analyzed by the same private provider) and August 2019 nuclear stress test did not find any evidence of transient ischemic dilatation. The November 2015 and the July 2020 VA examiners reviewed the results of his past testing and found there was no evidence of cardiac dilatation. The Board that a distinct period of increased symptomology warranting a higher [30 percent] rating based on cardiac dilatation established by EKG, ECG, or X-ray is not shown. The July 2020 VA examiner specifically indicated none was found. The preponderance of the evidence is this claim. Therefore, the appeal seeking a rating in excess of 10 percent for CAD must be denied. GEORGE R. SENYK Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Naumovich, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.