Citation Nr: 21077583 Decision Date: 12/30/21 Archive Date: 12/30/21 DOCKET NO. 20-12 953 DATE: December 30, 2021 ORDER An effective date prior to October 19, 2018, for the grant of service connection for chest scars is denied. An effective date prior to October 19, 2018, for the assignment of a 60 percent rating for coronary artery disease (CAD) is denied. A compensable rating for chest scars is denied. A rating in excess of 60 percent for CAD is denied. A 10 percent rating, but no more, for hypertension is granted. Service connection for tinnitus is granted. Service connection for a low back disorder is denied. Service connection for sinusitis is denied. FINDINGS OF FACT 1. The Veteran had active service from October 1967 to January 1990; he has been 100 percent disabled based on unemployability since February 2019. 2. The claim of service connection for chest scars was inferred from a claim for an increased rating for service-connected CAD that was received on October 19, 2018; he underwent coronary artery bypass surgery (CABG) and a mitral valve repair in April 2014. 3. There are no documents or communications prior to October 19, 2018, that constitute a claim of service connection for chest scars. 4. The Veteran was found to have congestive heart failure (CHF) with a left ventricular ejection fraction (LVEF) between 30 and 35 percent in a December 15, 2013, treatment note; the claim for an increased rating for CAD was received on October 19, 2018. 5. Resolving reasonable doubt in the Veteran's favor, it is factually ascertainable that the criteria for a 60 percent rating for CAD were met as of December 15, 2013, however there are no documents or communications within a year of December 15, 2013, that constitute a claim for an increased rating for CAD. 6. For the entire period on appeal, CAD has been characterized by subjective complaints of fatigue, dyspnea, dizziness, and shortness of breath; objective findings include no CHF, a workload of greater than 3 METs but not greater than 5 METs, and a LVEF of 60 percent. 7. For the entire period on appeal, hypertension has been characterized by subjective complaints of severe headaches, dizzy spells, drowsiness, double vision, chest pain, and difficulty breathing; objective findings include the use of continuous medication for control systolic pressure readings measuring predominantly in excess of 160. 8. For the entire period on appeal, the scars have been characterized by subjective complaints of keloids, itchiness, purulence, and slight elevation; objective findings include stable, non-painful scars with an approximate total affected area of 23.36 square centimeters (sq. cm.). 9. Tinnitus has been continuous since service. 10. Sinusitis was not diagnosed contemporaneous to the pendency of the claim. 11. A low back disorder has not been shown. CONCLUSIONS OF LAW 1. The criteria for an effective date prior to October 19, 2018, for the grant of service connection for chest scars have not been met. 38 U.S.C. §§ 1155, 5103(a), 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.157, 3.321, 3.340, 3.400 (2021). 2. The criteria for an effective date prior to October 19, 2018, for the grant of a 60 percent rating for CAD have not been met. 38 U.S.C. §§ 1155, 5103(a), 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.157, 3.321, 3.340, 3.400 (2021). 3. The criteria for a rating in excess of 60 percent for CAD have not been met. 38 U.S.C. §§ 1155, 5103(a), 5103A, 5107 (2012); 38 C.F.R. §§ 4.3, 4.7, 4.20, 4.59, 4.104, DCs 7000 7017 (2021). 4. The criteria for a compensable rating for chest scars have not been met. 38 U.S.C. §§ 1155, 5103(a), 5103A, 5107 (2012); 38 C.F.R. §§ 4.3, 4.7, 4.20, 4.59, 4.118, DCs 7801 7805 (2021). 5. The criteria for a 10 percent rating, but no more, for hypertension have been met, subject to the payment of monetary benefits. 38 U.S.C. §§ 1155, 5103(a), 5103A, 5107 (2012); 38 C.F.R. §§ 4.3, 4.7, 4.20, 4.59, 4.104, DC 7101 (2021). 6. Tinnitus was incurred in service. 38 U.S.C. §§ 1101, 1110, 1112, 1131, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2021). 7. Sinusitis was not incurred in service. 38 U.S.C. §§ 1101, 1110, 1112, 1131, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2021). 8. A low back disorder was not incurred in service. 38 U.S.C. §§ 1101, 1110, 1112, 1131, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2021). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS In July 2021, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A copy of the transcript has been associated with the claims file. Earlier Effective Date Claims Turning to the relevant laws and regulations, unless specifically provided otherwise in the statute, the effective date of an award based on an original claim for compensation benefits shall be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. The effective date of an award of disability compensation shall be the date following separation from service or the date entitlement arose if the claim is received within one year of separation from service; otherwise, the date of claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110(b); 38 C.F.R. § 3.400(o)(1). An effective date for increased rating may be assigned later than the date of receipt of the claim, if the evidence shows that the increase in disability actually occurred after the claim was filed, but never earlier than the date of receipt of the claim for increase. In general, "date of receipt" means the date on which a claim, information, or evidence was received in VA. 38 C.F.R. § 3.1(r). A claim is a "formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit." 38 C.F.R. § 3.1(p). Chest Scars The Veteran was assigned an effective date of October 19, 2018, for the grant of service connection for chest scars, the date VA received the increased rating claim for CAD from which the claim for this disorder was implied. As he separated in January 1990, he is not entitled to an effective date within one year of his discharge from service. As to the date entitlement arose, in July 2021 testimony, the Veteran asserted that his chest scars stemmed from procedures that he underwent to treat his heart disorders. A review of the record reveals that he underwent CABG and had a mitral valve repair in April 2014. Accordingly, April 2014 is the date entitlement arose. As to the date of claim, the record establishes that the Veteran filed an increased rating for CAD on October 19, 2018. In granting service connection for his chest scars, the RO determined that the claim of service connection for chest scars was related to the increased rating claims he submitted in October 2018. Moreover, no other communication may be reasonably construed as a formal or informal claim for chest scars, or as the basis for an inferred claim for the disorder, until the October 19, 2018 claim. This is the "date of claim." Effective dates are assigned based on the date of claim (October 19, 2018) or the date entitlement arose (April 2014), whichever is later. As the October 19, 2018, claim is later than the date entitlement to chest scars arose, the effective date has been properly established as October 19, 2018. Accordingly, the evidence does not support an effective date prior to October 19, 2018. CAD Generally, the effective date of an award based on original claim shall be fixed in accordance with the facts found but shall not be earlier than the date of receipt or application therefor. 38 U.S.C. § 5110(a); Rodriguez v. West, 139 F.3d 1351 (Fed. Cir. 1999). An effective date for increased rating may be earlier than the date of receipt of the application only where the evidence indicates that it is factually ascertainable that an increase in disability occurred prior to the date of claim and a claim is received within one year from such date. 38 U.S.C. § 5110(b)(2); 38 C.F.R. § 3.400(o)(2); Norris v. West, 12 Vet. App. 413, 420 (1999); see also Gaston v. Shinseki, 605 F.3d 979, 984 (Fed. Cir. 2010). The Veteran requested an effective date prior to October 19, 2018, for the assignment of a 60 percent rating for CAD. To that end, in October 2018, he submitted an increased rating claim for his service-connected CAD that was received by VA on October 19, 2018. A January 2019 rating decision assigned a 60 percent rating for CAD, effective October 19, 2018, the date of the increased rating claim. He timely appealed, asserting that the disorder was entitled to a higher rating and that he was not satisfied with the effective date of his 60 percent rating. Of note, a 60 percent rating is warranted for CAD when the evidence demonstrates either: (1) more than one episode of CHF in the past year; (2) a workload of greater than 3 METs but not greater than 5 METs resulting in dyspnea, fatigue, angina, dizziness, or syncope; or (3) left ventricular dysfunction with an ejection fraction of 30 to 50 percent. A review of the record reveals that a December 15, 2013, discharge summary documented that the Veteran was found to have CHF with a LVEF of 30 to 35 percent, likely CAD, and non-ST-elevation myocardial infarction. The December 15, 2013 discharge summary found CHF with a LVEF of 30 to 35 percent. Therefore, resolving reasonable doubt in his favor, it is factually ascertainable that the criteria for a 60 percent rating were met as of December 15, 2013. As noted above, effective dates earlier than the date of claim may be assigned if the increase occurs "within the one-year ("look back") period prior to the receipt of a claim, but not where the increase is shown prior to the one-year period preceding the receipt of the claim." Gaston v. Shinseki, 605 F.3d 979, 984 (Fed. Cir. 2010). To that end, the record contains no communication within a year of the December 2013 discharge summary that may reasonably be construed as a formal or informal claim for an increased rating for CAD. Rather, the Veteran's claim for increase was received by VA on October 19, 2018- almost five years after the date his entitlement to an increased rating arose. Based on the above, the record does not document a claim for an increased rating for CAD within a year of the date on which it was factually ascertainable that a 60 percent rating for the disorder was warranted (December 15, 2013). Accordingly, the evidence supports a finding that October 19, 2018, is appropriately. Increased Rating Claims Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. Chest Scars The Veteran's chest scars have been rated under DC 7802 for scars not of the head, face, or neck, that are superficial and non-linear. The Board will consider all relevant diagnostic codes. Under the relevant regulations, a compensable rating will be warranted when the evidence shows: A deep and nonlinear scar not of the head, face, or neck due to burns or other causes that has an area of at least 6 square inches (sq. in.) (39 sq. cm.), but less than 12 sq. in. (77 sq. cm.) (10 percent under DC 7801); A superficial and nonlinear scar not of the head, face, or neck due to burns or other causes that has an area or areas of 144 sq. in. (929 sq. cm.) or greater (10 percent under DC 7802); or One or two scars that are unstable or painful (10 percent under 7804). In a November 2018 VA examination, the examiner observed that the Veteran had chest scars related to the treatment of his service-connected heart disorder, measured as 28 cm. by 0.8 cm (calculated as 22.4 sq. cm.) and 1.2 cm by 0.8 cm. (calculated as 0.96 sq. cm.), respectively. The approximate total area of the scars was 23.36 sq. cm. The examiner found that the scars were not located on his head, face, or neck, were not painful or unstable, and did not have a total combined area of at least 39 sq. cm. In subsequent July 2021 testimony, the Veteran asserted that the disfigurement caused by his scar affected his self-esteem. He said that his scar was itchy and sometimes purulent. He further reported that he had keloids from top to bottom and that his scar was slightly elevated. While he used lotion to address his itchiness, he said his scar looked "pretty much the same all the time." Based on the above, a compensable rating is not warranted. In this regard, the November 2018 examiner found that the Veteran's chest scars did not have a total area greater than 39 sq. cm. Moreover, while the Veteran described slightly elevated, itchy, and purulent scars in his July 2021 testimony, neither the November 2018 VA exam nor the other medical records established that his chest scars were either painful or unstable. Accordingly, the medical evidence does not support a compensable rating for the chest scars. CAD CAD has been rated under DC 7005. The Board will consider all relevant diagnostic codes. Under the relevant regulations, an increased rating will be warranted when the evidence shows a heart disorder, to include a valvular heart disease, CAD, myocardial infarctions, heart valve replacement, and coronary bypass surgery, that results in: (1) chronic CHF; (2) a workload of 3 METs or less resulting in dyspnea, fatigue, dizziness, angina, or syncope; or (3) left ventricular dysfunction with an ejection fraction of less than 30 percent (100 percent under DCs 7000 7017). In a February 2018 VA examination, the Veteran reported that he had a heart attack in 2013 and an angioplasty in 2014. The examiner diagnosed an acute, subacute, or old myocardial infarction, CAD, a heart valve replacement, and a CAD bypass graft; however, the examiner did not note CHF. Upon examination, the Veteran was found to be capable of handling a workload in excess of 3 METs but not greater than 5 METs with symptoms of dyspnea, fatigue, and dizziness. The examiner further documented an ejection fraction of 60 percent. In a subsequent February 2020 VA examination, the Veteran reported that his heart disorders were stable with no recurrent myocardial infarctions or need for heart surgery. He reported that he walked 5 days a week for one hour and that he took breaks when he felt fatigued. He denied shortness of breath, chest pain, or dyspnea, but required continuous medication for treatment. Upon examination, the Veteran was found to have a myocardial infarction, a heart valve condition, and a cardiac arrhythmia; however, he did not have CHF, infectious heart conditions, or pericardial adhesions. The examiner further found that he was capable of handling a workload in excess of 3 METs but not greater than 5 METs with symptoms of fatigue. More recently, the Veteran testified in July 2021 that his CAD had a significant impact on his life. He explained that as a result of his CAD, he was unable to partake in activities that he normally enjoyed, such as playing golf and jogging. He reported that he had shortness of breath and fatigue and asserted that he had CHF. He said that he was really scared and nervous that something would happen to him as a result of his CAD, as his reflexes were "not that great anymore." Based on the above, a rating in excess of 60 percent is not warranted. To this end, the Veteran testified that he had CHF; however, while he is competent to report symptomatology, he is not competent to diagnose conditions such as CHF. Rather, the medical records documented no CHF, a workload of greater than 3 METs and less than 5 METs, and a LVEF of 60 percent. As such, the medical evidence does not support a rating in excess of 60 percent for CAD. Hypertension Hypertension has been rated under DC 7101 for hypertensive vascular diseases, to include hypertension. The Board will consider all relevant diagnostic codes. Under the relevant regulations, a compensable rating is warranted when the objective medical evidence shows: Diastolic pressure measured predominantly at 100 or more (10 percent under DC 7101); or Systolic pressure measured predominantly at 160 or more (10 percent under DC 7101); or A history of diastolic pressure measured predominantly at 100 or more who requires continuous medication for control (10 percent under DC 7101). Turning to the evidence, in a November 2018 VA examination, the Veteran reported that hypertension began in the 1970s while he was in service and that the condition had gotten worse. The examiner noted that the treatment plan included the use of continuous medication to treat hypertension but found that he did not have a history of diastolic blood pressure elevation to predominantly 100 or more. To this end, blood pressure readings were 146/90, 140/90, and 146/90, with an average blood pressure reading of 144/90. In subsequent medical treatment notes between November 2018 and February 2020, a private clinician documented blood pressure readings ranging from 130-175/85-90. Notably, systolic blood pressure readings were generally over 160. The clinician documented that the Veteran consistently used medication to treat hypertension. In a February 2020 VA examination, the examiner documented a blood pressure reading of 192/110. Medical treatment notes since that time revealed the Veteran's blood pressure readings ranged from 141-171/63-90, and that he continued to use Atenolol and Nifedipine to treat his hypertension. More recently in July 2021 testimony and an August 2021 lay statement, the Veteran reported that his hypertension resulted in severe headaches, dizzy spells, drowsiness, double vision, chest pain, and difficulty breathing. He said that as a result of the disorder, he had to frequently rest when walking. He recalled that he had been on medication for hypertension since 2014 and said that the medications, combined with a daily walking and exercise regimen helped to control the disorder. Based on the above, a 10 percent rating is warranted for hypertension. To this end, while the medical evidence does not reflect diastolic readings of predominantly 100 or more, the Veteran has required continuous medication to control his hypertension. Furthermore, the records demonstrate systolic pressure readings measured predominantly in excess of 160. As such, resolving reasonable doubt in his favor, a 10 percent rating is warranted for hypertension and the appeal is granted to this extent. Nonetheless, a 20 percent rating is not warranted. To this end, while a February 2020 VA examiner reported a diastolic pressure reading of 110, the medical records do not establish that the diastolic pressure was predominantly measured at 110 or more. Moreover, the highest systolic pressure reading documented in his records was measured at 192. Therefore, a rating in excess of 10 percent is not warranted. Consideration has been given to assigning staged ratings with respect to the disabilities discussed above. However, at no time during the periods in question have the disabilities warranted higher schedular ratings than those assigned. Hart v. Mansfield, 21 Vet. App. 505 (2007). Service Connection Claims Service connection may be granted on a direct basis as a result of disease or injury incurred in service based on nexus using a three-element test: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred in or aggravated by service. See 38 C.F.R. § 3.303(a), (d); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009). Tinnitus In addition to the above, tinnitus is recognized by VA as a "chronic disease" under 38 C.F.R. § 3.309(a); therefore, the presumptive provisions of 38 C.F.R. §§ 3.303(b), 3.307, and 3.309 apply. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013); Fountain v. McDonald, 27 Vet. App. 258 (2015). Turning to the medical evidence, a current disorder of tinnitus has been diagnosed. To this end, a November 2018 VA examination diagnosed recurrent tinnitus. Accordingly, a current disorder has been shown and the first element of service connection has been met. Next, the Veteran was exposed to loud noise while in service. He testified in July 2021 that while onboard the USS Ranger, his working space was directly on top of the flight deck and that, as a result, he was exposed to continuous jet engine noise. He recalled that the constant noise drove him and his fellow servicemembers crazy. The service treatment records do not document complaints, diagnoses, or treatment for recurrent tinnitus for purposes of eligibility for VA benefits. Nonetheless, as described above, in-service noise exposure is conceded. As to continuity, the Veteran reported in his July 2021 testimony that tinnitus was constant, noting that he had ringing in his ears ever since his separation from service. He is competent to assert that he has experienced the symptoms of tinnitus continuously since active service. Therefore, his competent and credible testimony establishes continuity of symptomatology. While there is an absence of complaints of or treatment for tinnitus for many years after separation from service, the Board has resolved reasonable doubt in the Veteran's favor and finds that he had continuous symptoms of tinnitus since his discharge from active service and therefore meets the requirements of presumptive service connection under 38 C.F.R. § 3.303(b). Although a November 2018 VA examiner opined that it was less likely than not that the Veteran's tinnitus was caused by military noise exposure, the Board does not need to reach the weight assignable to the VA opinion because service connection is granted on a presumptive basis under 38 C.F.R. § 3.303(b) for the "chronic" disease of tinnitus based on a finding of "continuous" symptoms since service. In sum, there is evidence of in-service acoustic trauma and continuous symptoms of tinnitus since service; therefore, tinnitus is presumed to have been incurred in service and the medical evidence supports service connection for the disorder. Because the Board is granting service connection on a presumptive basis based on continuous symptoms of tinnitus since separation, all other theories of service connection are rendered moot. Low Back Disorder In addition to the above, for a disability to be service connected, it must be present at the time a claim for VA disability compensation is filed or during or contemporary to the pendency of the appeal. McClain v. Nicholson, 21 Vet. App. 319 (2007); Romanowsky v. Shinseki, 26 Vet. App. 289 (2013). The record does not show that the Veteran had a confirmed diagnosis of a low back disorder at any time during or contemporaneous to the pendency of his appeal. To that end, he testified in July 2021 that he was required to do a lot of heavy lifting in service moving heavy aircraft parts from one ship to another. He reported that since separation, he had back pain when bending and required a picker to prevent him from doing so. The Veteran is competent to report his service history and symptomatology, but is not competent to diagnose conditions such as a low back disorder. Rather, the medical records do not reflect a diagnosis of a low back disorder. To this end, a clinician observed in multiple treatment notes since January 2019 that the Veteran reported no new musculoskeletal joint pains or muscle weaknesses and that his musculoskeletal examination was unremarkable. Service connection may only be granted for a current disability. Brammer v. Derwinski, 3 Vet. App. 223 (1992). As there is no confirmed current diagnosis of a low back disorder at any time during the pendency of the appeal, service connection is not warranted, and the appeal is denied to this extent. Sinusitis As previously discussed, service connection may only be granted for a current disability. Brammer v. Derwinski, 3 Vet. App. 223 (1992). The "current disability" requirement may be satisfied if the record contains a recent diagnosis of disability prior to filing a claim for benefits based on that disability. Romanowsky v. Shinseki, 26 Vet. App. 289 (2013). In a December 2013 treatment note, a clinician noted that the Veteran had sinusitis; however, he did not file a claim until October 2018, 5 years after the clinician's diagnosis. Accordingly, the December 2013 treatment note is not contemporary to the October 2018 claim and do not constitute a current diagnosis for purposes of service connection. The medical evidence does not otherwise reflect a diagnosis of sinusitis at any time during or contemporaneous to the pendency of the claim. Moreover, the Veteran testified in July 2021 that, while he had sinus problems in service, he did not recall whether his sinusitis bothered him continuously. He further testified that he did not have a then-current problem with or see a doctor for treatment for his sinuses. Service connection may only be granted for a current disability. As there was no confirmed diagnosis of sinusitis at the time of his October 2018 claim or at any other time during the pendency of the appeal, service connection for sinusitis is not warranted and the appeal is denied to this extent. The Board has considered the lay statements and testimony submitted by the Veteran regarding the etiology and current severity of the disabilities discussed above. The Veteran is competent to report symptoms and describe his observations because this requires only personal knowledge as it comes to him through his senses. However, he is not competent to offer opinions as to the etiology or specific level of disability according to the appropriate diagnostic code of any current disorder due to the medical complexity of the matters involved. Such competent evidence has been provided by the medical personnel who have examined the Veteran during the current appeal and who have rendered pertinent opinions in conjunction with the evaluations. The medical findings (as provided in the VA examinations and clinical records) directly address the criteria under which his disabilities are evaluated. As the clinicians have the requisite medical experience to render medical opinions regarding the degree of impairment caused by the disabilities and had sufficient facts and data on which to base the conclusions, the Board attaches greater probative weight to the clinical findings than to the lay statements and testimony that have been submitted. Based on the above, service connection for tinnitus and a rating of 10 percent, but no more, for hypertension are granted, and the appeals are otherwise denied. Finally, the Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record for the Board's consideration. See Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). L. HOWELL Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Spigelman, 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.