Citation Nr: 21066167 Decision Date: 10/28/21 Archive Date: 10/28/21 DOCKET NO. 16-08 189 DATE: October 28, 2021 ORDER The claims of entitlement to service connection for a right shoulder condition, a back condition (including intervertebral disc syndrome (IVDS)), and Hepatitis B are reopened since there is new and material evidence. But entitlement to service connection for Hepatitis B is denied. Entitlement to service connection for a heart condition (including coronary artery disease (CAD)) is denied. Entitlement to a compensable, separate rating for bilateral hearing loss is denied. REMANDED Entitlement to service connection for a right shoulder condition (including osteoarthritis) is remanded. Entitlement to service connection for a left shoulder condition is remanded. Entitlement to service connection for a back condition (including IVDS) is remanded. Entitlement to service connection for gastroesophageal reflux disease (GERD) is remanded. FINDINGS OF FACT 1. In an unappealed May 1995 rating decision the local regional office (RO), which is the Agency of Original Jurisdiction (AOJ), denied service connection for a right shoulder condition, a back condition (including IVDS), and Hepatitis B, but some of the additional evidence since submitted or otherwise obtained is neither cumulative nor redundant of the evidence of record at the time of that earlier decision and raises a reasonable possibility of substantiating these claims. 2. Still, however, the preponderance of the evidence is against finding that the Veteran's Hepatitis B originated during his active military service or is otherwise related or attributable to his service. 3. The preponderance of the evidence of record is against finding that he has had a heart condition at any time during or approximate to the pendency of this claim. 4. At worst, he has Level I hearing loss in each ear, so bilaterally. CONCLUSIONS OF LAW 1. There is new and material evidence to reopen the claims of entitlement to service connection for a right shoulder condition, back condition (including IVDS), and Hepatitis B. 38 U.S.C. §§ 5107, 5108, 7105; 38 C.F.R. §§ 3.104(a), 3.156. 3.160(d), 20.200, 20.1103 (2018). 2. But the criteria are not met for entitlement to service connection for Hepatitis B. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. 3. The criteria are not met for entitlement to service connection for a heart condition, including CAD. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. 4. The criteria are not met for entitlement to a separate, compensable rating for bilateral hearing loss. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.85, 4.86, Diagnostic Code (DC/Code) 6100. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served honorably in the U. S. Army from July 1970 to February 1972. He recently testified in support of these claims during a "virtual" teleconference hearing in June 2021 before the undersigned Veterans Law Judge (VLJ) of the Board. A transcript of the hearing is of record. This appeal has been advanced on the docket pursuant to 38 C.F.R. § 20.900(c). 38 U.S.C. § 7107(a)(2). 1. The claims of entitlement to service connection for a right shoulder condition, a back condition (including IVDS), and Hepatitis B are reopened. These claims previously were denied in a May 1995 rating decision. In response, the Veteran submitted a statement in August 1995 that, according to the RO's subsequent December 1995 notification letter, did not specify the determination that he was disagreeing with, so the RO did not consider his statement as a valid Notice of Disagreement (NOD) with that May 1995 rating decision and, thus, concluded there was not an appeal of that decision. Notably, however, prior to March 24, 2015, a NOD did not have to be submitted on a prescribed form. See 38 79 Fed. Reg. 57660. Instead, under the version of 38 C.F.R. § 20.201 in effect at the time of the May 1995 rating decision at issue, so long as the claimant submitted a timely "written communication [] expressing dissatisfaction or disagreement with an adjudicative determination by the [AOJ] and a desire to contest the result," such communication would constitute a valid NOD. See also Palmer v. Nicholson, 21 Vet. App. 434, 437 (2007) ("VA has always been, and will continue to be, liberal in determining what constitutes a [NOD]."). So, special wording was not required. This is significant because, here, the Veteran's written communication to the RO was labeled "Re: NOD" and indicated that he disagreed with the RO's May 1995 rating decision. It was, nonetheless, determined by the RO at the time to not specifically identify which adjudicative determination the Veteran was expressing disagreement with. Moreover, it does not appear that he appealed or contested that determination. Consequently, the May 1995 rating decision is considered final and binding. A claimant may reopen a finally adjudicated claim, however, by submitting new and material evidence. New evidence means existing evidence not previously submitted to agency decision makers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156. Here, the Veteran's claims originally were denied because there was no evidence that they had been incurred during his active military service. But he since has submitted written testimony and testified before the undersigned VLJ that he believes his right shoulder and back disabilities are related to an incident during his service when he fell off a ladder during a dizzy spell resulting from his now service-connected Meniere's syndrome. He also testified that, as a part of his job as a paramedic during service, he was exposed to bodily fluids, resulting in his Hepatitis B infection. This is new and material evidence and, therefore, reason to reopen his claims since there now at least is the required suggestion of potentially relevant disease, injury or events during his service. See Shade v. Shinseki, 24 Vet. App. 110, 118 (2010). Service Connection Service connection is granted for disability resulting from disease or injury incurred in or aggravated by active military service in the line of duty. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or an injury; and (3) a causal relationship ("nexus") between the current disability and the disease or injury in service. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). 2. Entitlement to service connection for Hepatitis B is denied. The Veteran contends that he contracted Hepatitis B during his time in service. Specifically, he reports being exposed to bodily fluids while working as a paramedic and performing cardiopulmonary resuscitation (CPR) during his service. During his hearing before this Board, he said he was notified in 1974 or thereabouts by the American Red Cross that he had a positive Hepatitis B antigen after donating blood (so, after his service), but he added that he was a blood donor both during and after his service. The Veteran is competent to report his personal belief of contracting Hepatitis B during his service, given his military occupational specialty (MOS), as opposed to after his service, and, indeed, this is especially true when accepting that he was a paramedic and, therefore, has some medical training. But the fact also remains there is no credible indication he had Hepatitis B during his service at least no confirmation of this disease based on the results of empirical testing specifically done to detect it. To this end, to assist in determining whether he did, the Veteran was provided VA examinations in December 1994 and August 2016. VA treatment records show he was not diagnosed with Hepatitis B until approximately two months prior to that December 1994 VA examination, so well over two decades after his separation from service. The origin of his Hepatitis B was considered at the time of that December 1994 VA examination to be unknown, so not necessarily attributed to anything that had occurred during his time in service. In August 2016, the Veteran reported to the VA examiner that he had been diagnosed with Hepatitis B in 1972 (so, the year of his separation from service) and had been under observation ever since. But this recollection conflicts with his VA treatment records indicating an initial diagnosis did not occur until 1994. This recollection also conflicts with statements he made during his hearing before this Board, when he said his initial diagnosis was in 1974, so some 2 years after conclusion of his service, though nonetheless contemporaneous to it. Ultimately, the August 2016 VA examiner opined that it is less likely than not the Veteran's Hepatitis B was incurred during his service because his service treatment records (STRs) do not contain any mention of a Hepatitis B infection or testing. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (holding that it is proper to consider the Veteran's entire medical history, including the lengthy period of absence of complaint with respect to the condition raised). Given the medical expertise of the examiners, in combination with available treatment records indicating the Veteran was not initially diagnosed with Hepatitis B until much more recently, in 1994, the Board gives more probative weight to the December 1994 and August 2016 VA examinations and opinions than to the Veteran's contentions his Hepatitis B infection occurring during his service. Thus, the preponderance of the evidence is against this claim, so the benefit of the doubt doctrine is inapplicable. See generally Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F.3d 1361 (Fed Cir. 2001). Consequently, the appeal of this claim must be denied. 3. Entitlement to service connection for a heart condition (including CAD) is denied The Veteran contends that he has a heart condition, including CAD, which also was incurred during his service. He testified during his hearing that he was treated for low blood pressure, and his STRs confirm that he was noted to have a history of static hypotension, meaning a type of low blood pressure that happens when an individual is standing up from sitting or lying down. But there is not the required attribution of any current heart condition to his service including to the static hypotension noted during his service. See Watson v. Brown, 4 Vet. App. 309, 314(1993) ("A determination of service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or a disease incurred in service."). To assist in making this important determination, the Veteran was afforded a VA examination in August 2015 during which time the examiner discovered there was no evidence of a then current heart condition. Specifically, the examiner wrote the following: "The [V]eteran reports that . . . he has been told about low pulse. He has [had] multiple cardiac evaluations but no cardiac etiology or pathology found. There is no evidence of cardiac surgeries, angioplasties, pacemakers or revascularization procedures. By year 2010, he underwent evaluations by VA cardiologist, and no cardiac disease found." The examiner also noted that the Veteran had reported episodes of dizziness and imbalances that were ultimately found to be related to his diagnosis of vertigo and not related to any cardiac disease. The examiner, in reviewing his treatment notes, also noted there was no history of hypertension, myocardial infarctions, CAD, congestive heart failure, angina or arrhythmias. The Veteran was not noted to be taking heart medications. He also reported a routine of exercises that consisted of running, stationary bicycle during fifteen or twenty minutes, at least twice weekly, with good tolerability. The Board therefore concludes that the Veteran does not have a current diagnosis of CAD or of any other heart condition and has not had one at any time during the pendency of this claim or recent to the filing of this claim. Simply put, he has not established that he has this claimed condition. Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). Showing he has this claimed condition is the most fundamental element of this claim and, absent satisfaction of this most fundamental element, there necessarily is no present heart disability to in turn relate or attribute to his military service, including to his static hypotension in service. In the absence of proof of present disability there can be no valid claim." Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). A current disability means a disability shown by competent and credible (i.e., probative) evidence to exist. Chelte v. Brown, 10 Vet. App. 268 (1997). While the Veteran believes he has a heart condition related to his service, his contentions concerning this are outweighed by the more probative evidence of record tending to refute this notion. To reiterate, most fundamental to this claim is the Veteran first establishing he has this claimed disability else, for all intents and purposes, there is no disability to, in turn, relate or attribute to his military service. While the Board acknowledges his statements and hearing testimony regarding his belief that he has a heart condition because of his military service, he simply has not established any current heart directly that may be directly, presumptively, or secondarily attributable to his service. The existence of a current disability is the cornerstone of a claim for VA disability compensation. Degmetich v. Brown, 104 F.3d 1328 (1997). Because there is no heart condition upon which benefits could be granted, the appeal for compensation for this disability is denied. See 38 U.S.C. §§ 1101, 1110, 1112, 1113; 38 C.F.R. §§ 3.303, 3.307, 3.309(a). 4. Entitlement to a compensable, separate rating for bilateral hearing loss is denied. The Veteran contends he is entitled to a higher evaluation for his bilateral hearing loss. He had a 0 percent (noncompensable) evaluation for his bilateral sensorineural hearing loss from September 20, 2012 to July 1, 2018, but also concurrently a 10 percent rating for his associated tinnitus (ringing in his ears), which, incidentally, is the highest permissible schedular rating for tinnitus. See Smith v. Nicholson, 451 F.3d 1344 (Fed. Cir. 2006), citing 38 C.F.R. § 4.87, DC 6260. As well, he had an additional 30 percent rating from September 20, 2012 for Meniere's syndrome or endolymphatic hydrops and since March 29, 2019 has had a 100 percent schedular rating for this collective disability under DC 6205. He was duly apprised of that change in an April 2018 rating decision. Because the Veteran's hearing loss has been considered in conjunction with his Meniere's syndromewhich ultimately results in a higher rating for him, indeed, the maximum permissible schedular rating of 100 percentthe Board does not find that a separate, compensable rating is warranted during the review period for his bilateral sensorineural hearing loss, alone. Notably, the Veteran was granted service connection for Meniere's syndrome to include his symptoms associated with hearing loss. Therefore, while he had a separate, noncompensable rating for his bilateral hearing loss under DC 6100 from September 20, 2012 to July 1, 2018, his hearing loss symptoms have been accounted for in the context of his rating for Meniere's syndrome under DC 6205. The evaluation of the same disability (such as hearing loss in this case) under several DCs, known as pyramiding, must be avoided. See 38 C.F.R. § 4.14. Separate ratings may be assigned for distinct disabilities resulting from the same injury only where the symptomatology for one condition is not duplicative or overlapping with the symptomatology of the other condition. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). This is not the situation, here. Moreover, the note following DC 6205 indicates Meniere's syndrome is to be evaluated either under DC 6205 criteria or separately evaluated for a vestibular disorder (DC 6204), hearing impairment and tinnitus, whichever produces an overall higher rating. As discussed below, the Veteran receives an overall higher rating under DC 6205 rather than separately under DC 6100, therefore, has been evaluated under DC 6205. 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. Part 4. Ratings are assigned based on the average impairment of earning capacity resulting from a service-connected disability. 38 C.F.R. § 4.1. Where two disability ratings are potentially applicable, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. All reasonable doubt material to the determination is resolved in the Veteran's favor. 38 C.F.R. § 4.3. In deciding this appeal, the Board has considered whether separate ratings are warranted for different periods of time, based on the facts found, a practice known as "staged" ratings that is employed irrespective of whether an initial or established rating. See Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2008). Evaluations of defective hearing range from 0 percent (noncompensable) to 100 percent based on organic impairment of hearing acuity as measured by the results of a controlled Maryland CNC speech discrimination test together with the average hearing threshold level measured by pure tone audiometry tests in the frequencies of 1000, 2000, 3000, and 4000 cycles per second (Hertz (Hz)). 38 C.F.R. § 4.85, DC 6100. To evaluate the degree of disability from bilateral service-connected hearing loss, the schedule establishes 11 auditory hearing acuity levels designated from Level I for essentially normal hearing acuity through Level XI for profound deafness. 38 C.F.R. § 4.85, Tables VI and VII. An exceptional pattern of hearing impairment occurs when the pure tone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) is 55 decibels or more. 38 C.F.R. § 4.86(a). In that situation, 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. Further, when the average pure tone threshold is 30 decibels or less at 1000 Hertz, and 70 decibels or more at 2000 Hertz, 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, and that numeral will then be elevated to the next higher numeral. 38 C.F.R. § 4.86(b). The Veteran had hearing evaluations in March 2013, April 2015, and October 2015, all of which have yielded noncompensable ratings, i.e., at worst, Level I hearing loss in each ear, so bilaterally. During the March 2013 evaluation, the Veteran reported having difficulty tolerating noisy situations. He did not indicate his hearing affected his occupational functioning. 38 C.F.R. § 4.10; Martinak v. Nicholson, 21 Vet. App. 447 (2007). His Maryland CNC Word List speech recognition score and pure tone thresholds, in decibels, were as follows: March 2013 HERTZ 1000 2000 3000 4000 Avg CNC RIGHT 15 20 65 90 48 100% LEFT 15 15 25 40 24 100% Applying the results to Table VI, the findings yield a numeric designation of Level I in the right ear and Level I in the left ear. Entering the resulting bilateral numeric designation of Level I for the right ear and Level I for the left ear to 38 C.F.R. § 4.85, Table VII, equates to a noncompensable disability rating under DC 6100. An exceptional pattern of hearing impairment under 38 C.F.R. § 4.86 was not shown. In April 2015 and October 2015, the examining audiologists observed no significant increases in the Veteran's hearing thresholds when compared to his prior audiological testing. He again had Level I hearing loss in each ear. Thus, none of the testing has shown a compensable level of hearing loss, meaning sufficient hearing loss in either ear to warrant anything greater than a 0 percent rating. So, a separate compensable rating for his bilateral hearing loss is not warranted. The Board expressly acknowledges its consideration of the lay evidence of record when adjudicating this claim, including the Veteran's statements regarding his difficulty hearing in noisy situations. He is competent to report difficulty with his hearing; however, disability ratings for hearing loss are derived from a "mechanical" (meaning nondiscretionary) application of the Rating Schedule to the numeric designations resulting from audiometric testing. See Lendenmann v. Principi, 3 Vet. App. 345 (1992). The rating criteria contemplate speech reception thresholds and ability to hear spoken words on Maryland CNC testing. The functional impact that the Veteran describes is contemplated by the rating criteria. See Doucette v. Shulkin, 28 Vet. App. 366 (2017). His main complaint is reduced hearing acuity and clarity, which is what is contemplated in the rating assigned. See Rossy v. Shulkin, 29 Vet. App. 142, 145 (2017). Moreover, as explained, the Veteran benefits more from a hearing loss evaluation that is combined with his symptoms of Meniere's disease under DC 6205. In reaching this conclusion, the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against this claim, this doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND 1. Entitlement to service connection for a right shoulder condition (including osteoarthritis) is remanded. 2. Entitlement to service connection for a left shoulder condition is remanded. 3. Entitlement to service connection for a back condition (including IVDS) is remanded. The Veteran testified during his hearing that he believes he sustained relevant injuries to his shoulders and back while in service when he fell off a ladder because of his vertigo. Service connection since has been established for his Meniere's syndrome, so by extension for his vertigo since an associated symptom. But a VA compensation examiner has not yet addressed this contention of the posited correlation between that injury in service and service-connected disability and these additionally claimed conditions. Therefore, an addendum opinion is needed before deciding the appeal of these claims. 4. Entitlement to service connection for GERD also is remanded. The Veteran has indicated that he experiences heartburn and an upset stomach because of medications prescribed for treatment of his service-connected disabilities. While a VA examiner opined in September 2015 that the Veteran had not been diagnosed with GERD, clarification in the way of an addendum opinion is needed to address whether the Veteran may have had, at any point during the appeal period under review, a stomach condition caused by medication prescribed for treatment of a service-connected disability. Accordingly, these claims are REMANDED for the following action: 1. Obtain an addendum opinion from an appropriate clinician regarding whether it is at least as likely as not (50 percent or greater probability) that the Veteran's claimed left and right shoulder and back conditions are related or attributable to his military service including especially when considering his hearing testimony that he injured his shoulders and back when he fell from a ladder that, in turn, was owing to his vertigo? The examiner should consider that service connection since has been established for Meniere's syndrome, so the Veteran may have vertigo as an associated symptom. 2. Also obtain an addendum opinion from an appropriate clinician regarding whether the Veteran's complaints of stomach pain and heartburn even absent a diagnosis of GERD, are at least as likely as not caused or aggravated by medication he takes to treat his service-connected disabilities. NOTE: Whether the Veteran actually needs to be re-examined (meaning undergo another in-person examination) to provide this additional medical comment on this determinative issue of causation is left to the discretion of the clinician designated to provide these addendum opinions. To assist in making these important determinations, the claims file, including a complete copy of this decision and remand, must be made available to the examiner for review and consideration of the relevant history. When responding, whether favorably or unfavorably, it is essential the examiner provide explanatory rationale preferably citing to evidence in the file supporting conclusions and/or accepted medical authority. KEITH W. ALLEN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. B. Kucera 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.