Citation Nr: 21067193 Decision Date: 11/03/21 Archive Date: 11/03/21 DOCKET NO. 18-27 260 DATE: November 3, 2021 ORDER Entitlement to service connection for a bilateral hearing loss disability is denied. Entitlement to an initial 30 percent rating for coronary artery disease is granted. REMANDED Entitlement to service connection for an acquired psychiatric disorder is remanded. Entitlement to an initial rating in excess of 30 percent for coronary artery disease is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. FINDINGS OF FACT 1. The Veteran does not have a bilateral hearing loss disability related to acoustic trauma sustained in active service. 2. The Veteran's heart disability was manifested by a workload of 5 METs but not greater than 7 METs resulting in dyspnea, fatigue, and angina throughout the period on appeal. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for bilateral hearing loss disability have not been met. 38 U.S.C. §§ 1101, 1112, 1131 (2018); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.385 (2020). 2. The criteria for an initial rating of 30 percent for a heart disability have been met. 38 U.S.C. § 1155 (2018); 38 C.F.R. §§ 4.7, 4.104, Diagnostic Codes 7005, 7017 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active air service from March 1966 to January 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from November 2016, December 2017, and August 2018 rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). In May 2017, the RO issued a rating decision which granted a temporary total evaluation of 100 percent for surgical treatment necessitating convalescence for the Veteran's heart disability, effective from April 17, 2017 through May 31, 2017, with a return to a 10 percent evaluation effective June 1, 2017. The RO also characterized the Veteran's heart disability as coronary artery bypass graft rather than ischemic heart disease as it was previously rated. Subsequently, in a March 2018 rating decision, the RO granted the Veteran's temporary total evaluation through July 31, 2017, the maximum three-month period allowed under 38 C.F.R. § 4.30(a)(1). Thus, the Board has limited its consideration accordingly. In July 2019, the Board denied, in pertinent part, the Veteran's claims for service connection for bilateral hearing loss, an increased rating for his heart disability, and a TDIU. The Veteran appealed the decision to the United States Court of Appeals for Veterans Claims (Court). In a May 2020 Order, pursuant to an April 2020 Joint Motion for Partial Remand (JMPR), the Court vacated the Board's July 2019 decision and remanded the claims for action consistent with the terms of the parties' JMPR. The Board previously remanded the case for further development in October 2020. The case has since been returned to the Board for appellate review. This decision bifurcates the issue of entitlement to a higher rating for a coronary artery disability into two separate issues, which permits a grant of 30 percent for a coronary artery disability throughout the appeal period. This bifurcation prevents a delay of this grant of benefits while awaiting additional development relating to whether the Veteran is entitled to a rating in excess of 30 percent for a coronary artery disability at any point during the appeal period. See Locklear v. Shinseki, 24 Vet. App. 311 (2011) (bifurcation of a claim generally is within VA's discretion); see also Tyrues v. Shinseki, 23 Vet. App. 166, 178-79 (2009), aff'd 631 F.3d 1380 (Fed. Cir. 2011) (holding that it is permissible to bifurcate a claim and to adjudicate the distinct theories of entitlement separately). This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.902(c). Service Connection 1. Hearing loss The Veteran asserts that he has a bilateral hearing loss disability as a result of active service. Given the Veteran's military occupational specialty (MOS) of electronic warfare repairman, the Board concedes that the Veteran sustained acoustic trauma during active service. Service treatment records (STRs) do not show that the Veteran had a bilateral hearing loss disability for VA purposes at any time during his active service. In December 1969, he was afforded a physical examination shortly before separation. There is no indication from the examination report that he reported symptoms that could be associated with hearing loss at that time. In fact, upon clinical evaluation his ears were normal, and he specifically responded "no" on his Report of Medical History to the questions of whether he experienced hearing loss. Further, his December 1969 separation audiogram does not show hearing loss for VA purposes. Moreover, on his November 1971 Report of Medical History conducted during his time in the Reserves, approximately two years after active service, the Veteran also reported "no" to hearing loss. Examination showed normal ears as well. The Veteran underwent a VA audiological examination in November 2016. During the examination, the Veteran reported that he was exposed to noise on the flight line. He also described recreational noise exposure to include guns and chain saws, but he reported that he used hearing protection. He also reported to the examiner that he heard a constant high pitch "hiss" in both ears that began during military service. The examiner opined that the Veteran's hearing loss was less likely than not related to his military service. The examiner explained that there was no permanent positive threshold shift that was noted when comparing the Veteran's induction December 1965 examination to his November 1971 examination. The Board also acknowledges the representative's contention that the examination is inadequate because the examiner did not note or explain the changes in the Veteran's hearing during service, specifically the threshold shift between 1967 and 1969. However, the November 2016 examiner reported that there was no "permanent" threshold shift. Thus, while there may have been in-service threshold shifts, the examiner did not consider them to be permanent and thus indicative of hearing loss. The examiner is not required to explain each change in the Veteran's pure-tone thresholds, unless such change is indicative of hearing loss in service. The Board further notes that all of the pure-tone thresholds recorded in service are either at or below 20 decibels and thus, are not indicative of any degree of hearing loss. As discussed above, in a May 2020 JMPR the Court vacated the Board's July 2019 decision and remanded the claims for action consistent with the terms of the parties' JMPR. In this case, the Court found that the Board did not adequately address the apparent threshold shift at 3000 hertz from the Veteran's December 1965 entrance examination to his December 1969 separation examination. Subsequently, VA obtained another opinion in February 2021. The examiner noted that she reviewed the Veteran's records. Specifically, she noted the Veteran's December 1965 entrance examination, August 1967 in-service examination, and December 1969 separation examination. The examiner opined that the Veteran's claimed condition was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. In that regard, the examiner stated that there was no significant permanent shift in hearing thresholds beyond test variability from entrance to separation, which is objective evidence of no permanent auditory damage on active duty from conceded noise. The examiner noted that the Veteran's entrance examination in December 1965 showed a 0-decibel reading at 3000 hertz, and a 10 decibel reading at 3000 hertz at his 1969 separation examination. However, the examiner explained that when converted to International Standards Organization-American National Standards Institute (ISO-ANSI) units, the threshold was 10 decibels at 3000 hertz at entrance, thus there was no shift from entrance to separation. Further, the examiner stated that there were no complaints for hearing decrease in the Veteran's STRs or at separation, and that the evidence is against a nexus in this case. The Board finds that the October 2016 and February 2021 medical examinations, when taken together, are the most probative evidence of record. The examiners examined the Veteran and reviewed the Veteran's medical and service records. They discussed the relevant evidence, considered the contentions of the Veteran, and provided a thorough supporting rationale for the conclusions reached. Further they relied on their own expertise, knowledge, and training when drafting their reports. Barr v. Nicholson, 21 Vet. App. 303 (2007); Stefl v. Nicholson, 21 Vet. App. 120 (2007); Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The Board also has considered whether service connection is warranted based on a continuity of symptomatology framework. 38 C.F.R. §3.303(b). To the extent the Veteran has reported experiencing hearing loss in and since service during his October 2016 VA examination, he is competent to relate experiencing a decrease in hearing acuity during service because it is a readily observable symptom. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). However, the Board finds that the evidence contemporaneous to his service and following active service is more reliable in regard to the state of his health. Specifically, the Veteran's discharge examination noted that his ears were normal after a clinical evaluation, and pure tone threshold testing showed hearing within normal limits. Additionally, on his December 1969 Report of Medical History he reported he was in "very good" health and reported "no" to any ear trouble, including hearing loss. Additionally, on his November 1971 Report of Medical History, completed approximately two years after active service, the Veteran again reported "no" to any ear trouble, including hearing loss. Contemporaneous evidence as to his then-existing physical condition, such as his medical examination report at discharge (as opposed to his later statements of memory or belief to prove the fact remembered or believed) is particularly probative. See Fed. R. Evid. 803(3); Rucker v. Brown, 10 Vet. App. 67, 73 (1997) (providing that although formal rules of evidence do not apply before the Board, recourse to the Federal Rules of Evidence may be appropriate). Moreover, the competent and probative VA opinion outweighs any lay assertion in this case that any current hearing loss is related to military noise exposure. Thus, the continuity of symptomatology framework is not sufficient to grant this claim. Accordingly, the preponderance of the evidence is against the claim and entitlement to service connection for bilateral hearing loss disability is not warranted. 38 U.S.C. § 5107 (b) (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 2. IR heart The Veteran seeks an increased rating for his heart disability. Specifically, the Veteran, through his representative, contends that he is entitled to a 100 percent rating due to shortness of breath after walking only 50 yards or less, which is slow walking and equivalent to one to three METs. See August 2021 Remarks to Supplemental Statement of the Case. The Veteran is currently assigned staged ratings for coronary artery bypass graft under DC 7017. From August 24, 2015 until April 17, 2017, he was assigned a 10 percent rating. He then was assigned a 100 percent rating from April 17, 2017 until July 31, 2017. He was also assigned a 10 percent rating from August 1, 2017 until February 14, 2021. Finally, beginning on February 15, 2021, he is assigned a 30 percent rating. Upon thorough review of the record, the Board finds that a disability rating in of 30 percent for the entire appeal period for the Veteran's service-connected coronary artery disease is warranted. The Veteran initially underwent a VA examination for his heart disability in October 2016. The examiner noted the diagnosis of ischemic heart disease (coronary artery disease). The examiner noted that continuous medication was required to control the Veteran's heart condition. The examiner noted that the Veteran did not have congestive heart failure. The examination report shows there was no evidence of cardiac hypertrophy or dilatation. Based on a June 2008 echocardiogram, the examiner noted the Veteran's left ventricular ejection fraction (LVEF) at 60 percent. The examiner assigned an METs level of 7 to 10, which is consistent with activities such as climbing stairs quickly, moderate bicycling, sawing wood, and jogging. The examiner reported that at this activity level, the Veteran experienced dyspnea. The examiner also noted a March 2016 VA treatment record indicating the Veteran was very active gardening and building a chicken coop. Notably, the examiner indicated that the examination was based on a review of the available records (without an in-person or video telehealth examination). A March 2017 echocardiogram reported that the Veteran's LVEF was 54 percent. The Veteran underwent coronary artery bypass surgery in April 2017. Shortly thereafter, the Veteran underwent another VA examination for his heart disability in September 2017. The examiner reported that the Veteran did not have any complications from his surgery and that he was asymptomatic post-op. The examination report shows that the Veteran required continuous medication to control his heart disability, he does not have congestive heart failure, and there is no evidence of cardiac hypertrophy or dilatation. The examiner reported that the Veteran denied experiencing any symptoms attributable to his heart disability with any level of physical activity. However, the examiner noted that the Veteran received an exercise stress test in March 2017, at that time the Veteran's METs level was 7. Additionally, the examiner noted an April 2017 interview-based METs test prior to his surgery. At that time, the Veteran's METs level was also a 7. This METs level has been found to be consistent with activities such as walking 1 flight of stairs, golfing (without cart), mowing lawn (push mower), heavy yard work (digging). The examiner noted that the Veteran denied experiencing symptoms attributable to a cardiac condition with any level of physical activity. The examiner stated that the Veteran should avoid most strenuous activities, and that the Veteran's METs achieved prior to having a coronary artery bypass was 7. Further, the examiner stated that the Veteran was able to perform sedentary occupational duties, and that he was able to perform light to moderate physical occupational activities. Shortly after the Veteran's coronary artery bypass, the Veteran's wife submitted a November 2017 statement that the Veteran was frequently out of breath after a short duration of physical activity, such as a 50-yard walk. She reported that this was more pronounced if the Veteran talked while he walked. Moreover, a June 2018 VA treatment record does reflect that the Veteran had stable angina, with clinical evidence of chest pain with walking. Further, the Veteran underwent another VA examination for his heart disability in February 2021. The examination report shows that the Veteran requires continuous medication to control his heart disability, he does not have congestive heart failure, and there is no evidence of cardiac hypertrophy or dilatation. The Veteran reported symptoms of dyspnea, fatigue, angina, dizziness, and nausea. METs exercise testing was not performed, but interview based METs testing revealed the Veteran's METs workload to be greater than 3, but less than 5; which would be consistent with activities such as light yard work, mowing the lawn, and brisk walking. The examiner noted that the Veteran's left ventricular ejection fracture was found to be 54 percent in March 2017. The examiner noted that the above interview METs testing was not solely due to the Veteran's heart condition, and noted that the estimated METs level due solely to the Veteran's cardiac condition was greater than 5, but not greater than 7; which would be consistent with activities such as walking 1 flight of stairs, golfing (without cart) mowing the lawn, and heavy yard work. The examiner noted that the Veteran's heart condition impacted his ability to work. She stated that the Veteran had functional loss due to his heart disability, and that the Veteran would benefit from a job that does not require physical work but a sedentary lifestyle. A private treatment record from the Veteran's heart specialist reflects that the Veteran's left ventricle has normal cavity size, wall thickness, and systolic function. The estimated left ventricular ejection fraction was 65 percent. The Board finds that the Veteran is entitled to a 30 percent rating for his heart disability during the entire period on appeal. In that regard, the record reflects that when resolving the benefit of the doubt in favor of the Veteran, the Veteran's coronary artery disease resulted in a workload of at-most, greater than 5 METs but not greater than 7 METs resulting in fatigue, dyspnea, and angina. The Board notes that at the October 2016 VA examination, the examiner assigned a METs level of greater than 7 but less than 10, which is consistent with activities such as climbing stairs quickly, moderate bicycling, sawing wood, and jogging. However, that examination is not consistent with the other evidence of record. Specifically, an exercise stress test shortly after the October 2016 VA examination indicated that the Veteran's METs level was found to be 7, which is found to be consistent with activities such as walking 1 flight of stair, golfing (without cart), mowing lawn (push mower), and heavy yard work (digging). Thus, the October 2016 VA examination is afforded limited probative value. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Thus, the Board finds that the Veteran is entitled to at least a 30 percent rating for his heart disability, as the Veteran's METs testing revealed his METs workload to be greater than 5, but not greater than 7. REASONS FOR REMAND 1. Entitlement to an initial rating in excess of 30 percent for coronary artery disease. As discussed above, the Board finds that the Veteran is entitled to at least a 30 percent rating for his heart disability for the entire period on appeal. However, the Board finds that an addendum opinion should be obtained to adequately address the Veteran's wife lay statements. In that regard, in a November 2017 statement, the Veteran's wife indicated that the Veteran becomes out of breath after a 50-yard walk. The Veteran's representative contends this "slow walking is equivalent to one to three METs." To date, none of the VA examinations of record adequately address this statement, to include to what METs level this equates. Moreover, in a February 2021 VA examination an interview-based METs test noted symptoms of dyspnea, fatigue, angina, dizziness, and nausea at greater than 3 but not greater than 5 METs. The VA examiner then noted the Veteran's METs level was not due solely to the Veteran's cardiac condition. In the next section, where asked to provide a METs based solely on the cardiac condition, the examiner estimated greater than 5 METs but not greater than 7 METs. In so finding, the examiner stated that the Veteran had nitro and used it as needed. However, the examiner did not explain what other disabilities caused the Veteran's decreased METs level, nor did the examiner indicate which symptoms are attributable to the Veteran's other disabilities. Additionally, the Board notes that the examiner indicated that the Veteran would become short of air, dizzy, and have angina when he performed any physical activity that caused those symptoms but does not identify what this physical activity includes. On remand, a new VA examination should be obtained. Moreover, retrospective supplemental findings should be requested from the examiner on remand. 2. Service connection for an acquired psychiatric disability. 3. Entitlement to a TDIU. In February 2021, VA obtained an addendum medical opinion regarding the Veteran's acquired psychiatric disability. The examiner noted that the Veteran had various mental health diagnoses including unspecified bipolar disorder, anxiety, and depression. The examiner noted that the Veteran was diagnosed with anxiety by a social worker, but that given proximity to the diagnosis of unspecified bipolar disorder, that it appears that the unspecified bipolar disorder diagnosis was more reliable. Moreover, the examiner noted that the Veteran's diagnoses of anxiety and depression were within months of his diagnosis for unspecified bipolar disorder, and that those diagnoses were given by a general practitioner instead of a mental health professional. The examiner stated that the Veteran's symptoms of depression and anxiety are more accurately described by and subsumed under the diagnosis of unspecified bipolar disorder. Importantly, the examiner noted that the Veteran's bipolar disorder were attributed to biological factors, and not any in-service stressors. Specifically, the examiner cited the Veteran's doctor who identified possible biological factors as the etiology of the Veteran's bipolar disorder. The Board notes that service connection may not be granted for congenital or developmental defects, as they are not considered a disease or injury for the purpose of service connection. 38 C.F.R. §§ 3.303 (c), 4.9 (2020). However, service connection may be granted for a congenital or hereditary disease, as opposed to a defect, where the disease first manifested during service, or where it preexisted service but was aggravated or worsened beyond its normal progression as a result of service. VAOPGCPREC 82-90 (July 18, 1990); VAOPGCPREC 67-90 (July 18, 1990). Moreover, although VA regulations specifically prohibit service connection for congenital defects, if a defect is subject to a superimposed disease or injury, service connection may be warranted for the resultant disability. See VAOPGCPREC 82-90. While the February 2021 VA medical opinion appeared to indicate that the Veteran's bipolar disorder was a result of biological factors, the examiner did not address whether the bipolar disorder was a defect or a disease. Thus, additional medical comment is needed clearly addressing the nature of the Veteran's bipolar disorder including whether the disability is a congenital disease versus defect since this determination governs the method of analysis. Moreover, when considering secondary service connection, the examiner concluded there was no mental health diagnosis aggravated by the Veteran's service-connected disabilities. Interestingly, the examiner's rationale stated that the Veteran did not have any mental health diagnoses, yet then concluded the diagnosis of unspecified bipolar disorder from 2018 which did not make mention of any service-connected disabilities. The Board finds this opinion on secondary service connection inadequate as it is contradictory and without any clear supporting rationale. Even if the 2018 assessment did not mention the Veteran's service-connected disabilities, the Board's prior remand directives requested this examiner discussed secondary service connection. As the February 2021 VA medical opinion failed to adequately address service connection as it pertains to congenital defects and did not adequately address secondary service connection, the Board finds that the opinion is not adequate for adjudication purposes. Therefore, a new opinion should be obtained. The Board notes that the Veteran is seeking entitlement to a TDIU. A review of the record shows that the Veteran does not meet the schedular criteria for assignment of a TDIU. However, in the decision above, the Board remanded entitlement to service connection for an acquired psychiatric disability, and entitlement to a rating in excess of 30 percent for a coronary artery disability. Therefore, TDIU cannot be decided until the other pending claims are decided. The appropriate remedy where a pending claim is inextricably intertwined with a claim currently on appeal is to remand the claim on appeal pending the adjudication of the inextricably intertwined claim. Harris v. Derwinski, 1 Vet. App. 180 (1991). The matters are REMANDED for the following action: 1. Identify and obtain any pertinent, outstanding VA and private treatment records and associate them with the claims file. 2. Then, schedule the Veteran for a VA examination to determine the nature and etiology of any currently present acquired psychiatric disability, to include a bipolar disability and/or anxiety. The claims file must be made available to and reviewed by the examiner. Any indicated studies should be performed. Based on the examination results and the review of the record, the examiner should opine as to the following: a. Identify all acquired psychiatric disabilities, to include bipolar disorder and/or anxiety, present during the pendency of the appeal, or proximate thereto and make a determination as to whether each identified disability is a defect, disease, or the result of injury. b. Then, does the Veteran have an acquired psychiatric disability that clearly and unmistakably existed prior to his active service? If so, was any pre-existing acquired psychiatric disability clearly and unmistakably NOT aggravated during active service? c. For any identified defect, is it at least as likely as not (50 percent or better probability) that the Veteran developed superimposed pathology as a result of active service? d. For any diagnosed acquired psychiatric disability NOT found to clearly and unmistakably exist prior to the Veteran's service, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent or better probability) that the disability had its onset during the Veteran's active service, or is otherwise etiologically related to such service. e. For any diagnosed acquired psychiatric disability NOT found to clearly and unmistakably exist prior to the Veteran's service, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent or better probability) is caused by any of the Veteran's service-connected disabilities? f. For any diagnosed acquired psychiatric disability NOT found to clearly and unmistakably exist prior to the Veteran's service, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent or better probability) is aggravated by any of the Veteran's service-connected disabilities? The term "aggravation" means a worsening of a disability beyond its natural progression. If aggravation is found, then, to the extent possible, the examiner should establish a baseline level of severity of the psychiatric disorder prior to aggravation by the service-connected disability. In forming the opinions, the examiner must consider the Veteran's lay statements regarding the onset and continuity of the Veteran's symptoms. The rationale for all opinions expressed must be provided. 3. Then, schedule the Veteran for a VA examination by an examiner with sufficient expertise to determine the current level of severity of all impairment resulting from his service-connected coronary disability. The claims file must be made available to, and reviewed by, the examiner. All indicated tests and studies must be performed. The examiner must provide all information required for rating purposes. (Continued on the next page) Following a review of the record, the clinician should provide retrospective findings. The examiner should address the Veteran's wife's November 2017 statement that the Veteran becomes out of breath after a 50-yard walk and specifically indicate to what METs level this type of activity equates. Further, the examiner should discuss the February 2021 VA examiner's finding regarding the different METs levels. In that regard, the examiner should fully discuss what other disabilities caused a decrease in the Veteran's METs level and which symptoms are attributable to the Veteran's other disabilities. The examiner is reminded that if it is not possible to separate the effects of service-connected and nonservice-connected conditions, all such symptoms must be attributed to the Veteran's service-connected coronary disability. See Mittleider v. West, 11 Vet. App. 181, 182 (1998) ("[W]hen it is not possible to separate the effects of the [service-connected condition and the non-service-connected condition], VA regulations... clearly dictate that such signs and symptoms be attributed to the service-connected condition.") Tiffany Dawson Veterans Law Judge Board of Veterans' Appeals Attorney for the Board I. Cannaday, 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.