Citation Nr: 21074997 Decision Date: 12/17/21 Archive Date: 12/17/21 DOCKET NO. 17-14 605 DATE: December 17, 2021 ORDER Entitlement to service connection for a chronic psychiatric disorder, currently diagnosed as depressive disorder, is granted. Entitlement to a disability rating in excess of 10 percent prior to October 10, 2020 and in excess of 60 percent thereafter for coronary artery disease (CAD) is denied. Entitlement to a disability rating in excess of 50 percent prior to October 17, 2020 and in excess of 90 percent thereafter for bilateral hearing loss is denied. REMANDED Entitlement to total disability rating based on individual unemployability (TDIU) prior to October 17, 2020 is remanded. FINDINGS OF FACT 1. The Veteran's depressive disorder began during active service. 2. The Veteran does not have a diagnosis of posttraumatic stress disorder (PTSD). 3. Prior to October 10, 2020, interview based metabolic equivalent (MET) testing did not show that the Veteran developed symptoms at a workload of 7 METs or less, and there was no evidence of cardiac hypertrophy or dilation on electro-cardiogram, echocardiogram, or X-ray. 4. Beginning October 10, 2020, MET testing shows the Veteran did not develop symptoms at a workload of 3 METs or less, and the evidence did not show chronic congestive heart failure or left ventricular dysfunction with an ejection fraction of less than 30 percent. 4. Prior to October 17, 2020, the Veteran's bilateral hearing loss was manifested by hearing acuity of no worse than Level VIII in the right ear and no worse than Level VII in the left ear. 5. Beginning October 17, 2020, the Veteran's bilateral hearing loss has been manifested by hearing acuity of no worse than Level XI in the right ear and no worse than Level X in the left ear. CONCLUSIONS OF LAW 1. The criteria for service connection for depressive disorder are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. Prior to October 10, 2020, the criteria for rating in excess of 10 percent for arteriosclerotic heart disease were not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.100, 4.104, Diagnostic Code 7005. 3. Beginning October 10, 2020, the criteria for a rating in excess of 60 percent for arteriosclerotic heart disease are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.100, 4.104, Diagnostic Code 7005. 4. Prior to October 17, 2020, the criteria for a rating in excess of 50 percent for bilateral hearing loss were not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.85, 4.86, Diagnostic Code 6100. 5. Beginning October 17, 2020, the criteria for a rating in excess of 90 percent for bilateral hearing loss are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.85, 4.86, Diagnostic Code 6100. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from September 1972 to August 1975. These matters come before the Board of Veterans' Appeals (Board) on appeal from an October 2014 rating decision of a VA regional office (RO). The Veteran's claims were previously before the Board in February 2019 wherein they were remanded for additional development. Included in that remand was the claim for entitlement to service connection for diverticulitis (claimed as colon condition). This claim was granted through an April 2021 rating decision. Thus, the claim is no longer on appeal as it has been granted in full. Service Connection Psychiatric Disability The Veteran contends that he has PTSD or another psychiatric disorder that is related to service or is secondary to his service-connected disabilities. The Board concludes that the Veteran has a current psychiatric disability that began during active service. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). There are four opinions of record that address a current diagnosis. October 2014 and November 2020 VA examiners determined that the Veteran did not meet the criteria for a diagnosis of PTSD. Under the Diagnostic and Statistical Manual, Fifth Edition (DSM-5), there are several criteria (A through I) that must be met for a diagnosis of PTSD. The Board previously remanded this issue in part to verify the Veteran's stressors to determine whether they met Criterion A for a diagnosis of PTSD. While the VA examinations accepted his stressor reports and found that his stressors were sufficient for Criterion A, (adequate to support the diagnosis of PTSD), the Veteran did not meet the remaining criteria for a diagnosis, including that he did not exhibit intrusion symptoms, avoidance symptoms, or negative alterations in cognition and mood or arousal and reactivity due to his stressors. As the determination that the Veteran does not have a diagnosis of PTSD is based on criteria other than his stressor events, the Board finds that additional development to corroborate a stressor would serve only to delay the claim, with no likely benefit flowing to the Veteran. Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991). As such, the evidence of record is sufficient to determine that the Veteran does not have a diagnosis of PTSD. These examiners did diagnose the Veteran with alcohol use disorder and antisocial personality disorder. The Veteran submitted a September 2016 mental disorders disability benefits questionnaire (DBQ) reflecting a diagnosis persistent depressive disorder with PTSD and intermittent explosive disorder, aggravated by medical conditions. The Veteran submitted another mental disorders DBQ completed by a private psychologist in June 2021. The provider noted the previous diagnoses of antisocial personality disorder but found that persistent depressive disorder was a more appropriate diagnosis. While the VA examiners recognized that his symptoms did start during service, the private provider found that the conclusion that a personality disorder could be the root cause for these symptoms was erroneous. The Veteran had no history of legal or behavioral problems prior to joining the military. While he had significant antisocial behavior as an adult, the private psychologist found that he did not have the developmental history required to make a diagnosis of antisocial personality disorder. Instead, the private psychologist opined that it was more likely that the Veteran suffered from a mood disorder and symptoms related to traumatic experiences from the military, which impacted the development of antisocial attitudes and values in adulthood, manifesting in violent behaviors due to his inability to trust others and tolerate interpersonal interactions. The Board finds that the June 2021 private opinion is highly probative and persuasive, as it is based on a review of the evidence of record and supported with a reasoned medical explanation that is consistent with the Veteran's history. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008). The question then becomes whether the current disability is related to service. The VA examiners did not provide a nexus opinion, as they did not find that the Veteran had an acquired psychiatric disorder for service connection. The September 2016 examiner opined that his psychiatric disorders were aggravated by medical conditions, to include bilateral hearing loss, tinnitus, and coronary artery disease. The June 2021 examiner, however, linked the Veteran's current psychiatric disability directly to service. She noted that, prior to his service, the Veteran had no mental health symptoms, per lay person statements, records, an entrance examination which did not endorse any mental health symptomology, and personal report. While in the Navy, he witnessed traumatic deaths and endured daily stressors that impacted his mental health. She opined that it was more likely than not that his mental health disorder started while he was in the service. This opinion is supported by a rationale based on the evidence of record and, as such, is probative and persuasive. Id. In this case, the evidence supports service connection for a psychiatric disorder on a direct basis, because the Board finds the evidence to at least be in equipoise as to whether the Veteran's current psychiatric disability arose in service. Accordingly, after resolving all doubt in favor of the Veteran, the Board finds that service connection for a depressive disorder is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Increased Rating Disability evaluations are determined by evaluating the extent to which a Veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. If two evaluations are potentially applicable, 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. In view of the number of atypical instances it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified. Findings sufficiently characteristic to identify the disease and the disability therefrom, and above all, coordination of rating with impairment of function will, however, be expected in all instances. 38 C.F.R. § 4.21. Increased Rating CAD The Veteran contends that he is entitled to a higher rating for CAD. Neither he nor his representative have offered any reasons as to why. Effective February 6, 2013, the Veteran's CAD is rated at 10 percent under Diagnostic Code 7005, pertaining to arteriosclerotic heart disease (coronary artery disease). In an April 2021 rating decision, his rating was increased to 60 percent effective October 10, 2020. The regulation states that Diagnostic Code 7005 is to be rated under the General Rating Formula for Diseases of the Heart. 38 C.F.R. § 4.104, Diagnostic Code 7005. Under the General Formula, a 10 percent rating is warranted for documented CAD resulting in a workload of greater than 7 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 where a 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 dilation on electrocardiogram, echocardiogram, or X-ray. A 60 percent rating is warranted when there is more than one episode of acute congestive heart failure in the past year; a workload of greater than 3 METs, but not greater than 5 METs, resulting in dyspnea, fatigue, angina, dizziness, or syncope; or for left ventricular dysfunction with an ejection fraction of 30 to 50 percent. A 100 percent rating is warranted when there is chronic congestive heart failure; a workload of 3 METs or less resulting in dyspnea, fatigue, angina, dizziness, or syncope; or left ventricular dysfunction with an ejection fraction of less than 30 percent. Id. One metabolic equivalent (MET) is the energy cost of standing quietly at rest and represents an oxygen uptake of 3.5 milliliters per kilogram of body weight per minute. 38 C.F.R. § 4.104, Note (2). 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. Id. CAD rating Prior to October 10, 2020 For the period from February 6, 2013 to October 10, 2020, the Veteran's service-connected CAD did not meet the criteria for a rating greater than 10 percent. The Veteran was provided with a VA examination in October 2014 examination. The Veteran reported chest pain the year prior, but his doctor told him that there was nothing to worry about. The examiner noted that March 2014 testing, including an electrocardiogram (EKG) echocardiogram, reflected normal results. There was no evidence of cardiac hypertrophy or cardiac dilatation. The Veteran's examination was almost completely normal. The examiner noted that the Veteran's interview based METS testing reflected that a workload of greater than 7 METS resulted in dyspnea, fatigue, and angina. The METs level limitation was due solely to the heart condition. July 2019 VA medical record reflecting treatment for his cardiac disability shows that he denied any symptoms and had no other significant issues. He was able to climb a flight of stairs without stopping. In August 2019, the Veteran denied chest pain, shortness of breath, and dizziness. The Veteran is competent to report his readily observable symptoms. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). In addition, the Board considers his reports to be credible. Based on the evidence of record, the Board concludes that, for the period prior to October 10, 2020, the Veteran's CAD did not result in symptoms including dyspnea, fatigue, angina, dizziness, or syncope, or, at a workload of 7 METS or less. In addition, there was no evidence of cardiac hypertrophy or dilation on electrocardiogram, echocardiogram, or X-ray. Thus, the Board concludes that the Veteran's arteriosclerotic heart disease did not meet the criteria corresponding to a higher 30 percent rating prior to October 10, 2020. In reaching the conclusion above, the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the Veteran's claim, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). CAD rating Beginning October 10, 2020 Since October 10, 2020, the Veteran's CAD did not meet the criteria for a rating in excess of 60 percent. As explained above, a 60 percent rating is warranted when there is more than one episode of acute congestive heart failure in the past year; a workload of greater than 3 METs, but not greater than 5 METs, resulting in dyspnea, fatigue, angina, dizziness, or syncope; or for left ventricular dysfunction with an ejection fraction of 30 to 50 percent. A 100 percent rating is warranted when there is chronic congestive heart failure; a workload of 3 METs or less resulting in dyspnea, fatigue, angina, dizziness, or syncope; or left ventricular dysfunction with an ejection fraction of less than 30 percent. Id. For the purposes of a 100 percent evaluation, the rating criteria do not require a separate showing of left ventricular dysfunction in addition to an ejection fraction of less than 30 percent. See id. at 382. The Veteran was provided with a VA examination in October 2020. He did not have congestive heart failure. Echocardiogram showed left ventricular ejection fraction (LVEF) of 60-65 percent. The Veteran's interview based METS testing reflected that a workload of greater than 3 METS resulted in dyspnea, fatigue, angina, and dizziness. While medical records show ongoing treatment for the Veteran's service-connected CAD, they do not indicate a more severe disability than is shown on VA examination. A 100 percent rating is not warranted unless there is 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. In this case, there is no evidence that the Veteran has had congestive heart failure or left ventricular dysfunction with an ejection fraction that is 30 percent or greater. Symptoms appear at greater than 3 METs, The Veteran is competent to report his readily observable symptoms. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The Veteran's reports are considered credible. Considering all relevant evidence of record, the Board finds that the Veteran's CAD has not met the criteria for a disability rating in excess of 60 percent since October 20, 2020. In reaching the conclusion above, the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the Veteran's claim, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Increased Rating - Bilateral Hearing Loss The Board must determine whether prior rating decisions pertaining to an increased rating claim on appeal have become final. In this case, entitlement to service connection for bilateral hearing loss was initially granted in a March 1976 rating decision, which assigned a noncompensable disability rating effective August 30, 1975. No additional evidence was added to the record in the year following this rating decision, and the Veteran did not file a notice of disagreement with the decision. As such, this decision became final. In an August 2009 rating decision, the RO assigned a disability rating of 40 percent effective October 19, 2006 and a 50 percent disability rating effective May 12, 2009. No additional evidence was added to the record in the year following this rating decision, and the Veteran did not file a notice of disagreement with the decision. As such, this decision became final. The Veteran filed his claim currently on appeal for an increased rating for bilateral hearing loss on February 6, 2014. As such, this is the start of the current appeals period. In the October 2014 rating decision on appeal here, the RO continued a 50 percent disability rating for the Veteran's service-connected hearing loss. In an April 2021 rating decision, his disability rating was increased to 90 percent, effective October 17, 2020. He contends that his hearing loss warrants higher ratings. Evaluations of defective hearing range from 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). 38 C.F.R. § 4.85, Diagnostic Code 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). Bilateral Hearing Loss Rating Prior to October 17, 2020 The Veteran was provided with a VA examination in October 2014. He reported that he had a hard time with word association. 38 C.F.R. § 4.10; Martinak v. Nicholson, 21 Vet. App. 447 (2007). The Veteran's pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 Avg RIGHT 50 85 105 105+ 86 LEFT 40 90 95 105+ 83 With regard to word discrimination scores, the examiner found that the use of the word recognition scores was not appropriate for this Veteran because of language difficulties, cognitive problems, inconsistent word recognition scores, that made combined use of pure tone average and word recognition scores inappropriate. As such, utilizing Table VI is not possible. However, consideration has been given as to whether the Veteran's service-connected hearing loss warranted a higher rating when his Hertz decibel readings are applied to Table VIA. See generally 38 C.F.R. § 4.85(a) (if there is an exceptional pattern of hearing loss, the requirements of § 4.85(a) regarding examination adequacy for rating purposes still apply.) Under Table VIA, a pure tone average of 86 is given a numeric value of VIII, and a pure tone average of 83 is given a numeric value of VII. Entering these numeric designations into 38 C.F.R. § 4.85, Table VII, equates to a 40 percent disability rating under Diagnostic Code 6100. Based on the evidence above, a rating in excess of 50 percent for the Veteran's bilateral hearing loss was not warranted for the period from February 6, 2014 to October 17, 2020. During this period, the Board cannot locate any treatment for the Veteran's hearing loss. The Board expressly acknowledges its consideration of the lay evidence of record when adjudicating this claim, including his assertions that he has difficulty understanding some words. The Veteran is competent to report difficulty with his hearing; however, disability ratings for hearing loss are derived from a mechanical 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. Doucette v. Shulkin, 28 Vet. App. 366 (2017). The Veteran's 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). Accordingly, the preponderance of the most probative evidence is against the claim of entitlement to a rating in excess of 50 percent for hearing loss for the period from February 6, 2014 to October 17, 2020. In reaching the conclusion above, the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the Veteran's claim, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Bilateral Hearing Loss Rating Beginning October 17, 2020 An October 17, 2020 VA examination reveals that the Veteran reported that he could not hear well to communicate with others but noted that he did not wear his hearing aids as he felt that they did not help. 38 C.F.R. § 4.10; Martinak v. Nicholson, 21 Vet. App. 447 (2007). The Veteran's Maryland CNC Word List speech recognition score and pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 Avg CNC RIGHT 50 95 105 100+ 87.5 24 LEFT 50 100 100 100_ 87.5 36 Applying the results to Table VI, the findings yield a numeric designation of Level XI in the right ear and Level X in the left ear. Entering these numeric designations into 38 C.F.R. § 4.85, Table VII, equates to a 90 percent disability rating under Diagnostic Code 6100. An exceptional pattern of hearing impairment under 38 C.F.R. § 4.86 was not shown. Based on the evidence above, a rating in excess of 90 percent for the Veteran's bilateral hearing loss beginning October 17, 2020 is not warranted. The Board expressly acknowledges its consideration of the lay evidence of record when adjudicating this claim, including his contentions of difficulty hearing well enough to communicate. The Veteran is competent to report difficulty with his hearing; however, disability ratings for hearing loss are derived from a mechanical 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. Doucette v. Shulkin, 28 Vet. App. 366 (2017). The Veteran's 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). Accordingly, the preponderance of the most probative evidence is against the claim of entitlement to a rating in excess of 90 percent for hearing loss beginning October 17, 2020. In reaching the conclusion above, the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the Veteran's claim, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). (Continued on the next page) REASONS FOR REMAND TDIU In this decision, the Board has granted service connection for a psychiatric disorder. As the rating and effective date assigned for this disability will significantly impact a decision on the issue of issue of entitlement to TDIU, the issues are inextricably intertwined. A remand of the claim for entitlement to a TDIU prior to October 17, 2020 is required. Following the assignment of an effective date and disability rating for the Veteran's service-connected psychiatric disability, readjudicate the Veteran's claim for entitlement to TDIU prior to October 17, 2020. I. M. Hitchcock Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Harrigan Smith 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.