Citation Nr: 21007195 Decision Date: 02/08/21 Archive Date: 02/08/21 DOCKET NO. 16-53 289A DATE: February 8, 2021 ORDER Entitlement to service connection for a heart disorder is denied. Entitlement to a 10 percent rating, and no higher, for bilateral hearing loss from July 28, 2014, is granted. FINDINGS OF FACT 1. The most probative evidence does not reach the level of equipoise as to whether the Veteran’s heart disorder had its onset during or is otherwise etiologically related to military service. 2. With resolution of reasonable doubt in the Veteran’s favor, his bilateral hearing loss has manifested functional impairment to the extent that a 10 percent rating, and no higher, should be assigned for the entirety of the appeal period. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a heart disorder have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for entitlement to a restoration of the 10 percent rating from July 28, 2014, but no higher ratings, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.385, 4.85, Diagnostic Code (DC) 6100. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from August 1965 to August 1967. These matters come before the Board of Veterans’ Appeals (Board) on appeal of a rating decision issued by the Department of Veterans Affairs (VA), and have been advanced on the Board’s docket pursuant to 38 U.S.C. § 7107. The Veteran testified before the undersigned Veterans Law Judge during a hearing in May 2019. A transcript of the hearing is associated with the claims file. In April 2020, the Board remanded these matters for further development. The agency of original jurisdiction (AOJ) was asked to obtain a VA examination regarding the nature and etiology of the Veteran’s heart disorder and the current severity of his bilateral hearing loss. The record reflects that the Veteran appeared for VA examinations in December 2020. Review of the examination reports show that they substantially comply with the prior remand directives. As neither the Veteran nor the record has raised any other issues, the Board will proceed with a decision on the merits. See Doucette v. Shulkin, 38 Vet. App. 366, 369-70 (2017). Legal Criteria – Service Connection Service connection may be granted for a disability resulting from disease or injury incurred coincident with or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Establishing direct service connection generally requires competent evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). 1. Entitlement to service connection for a heart disorder The Board finds that the most probative evidence does not reach the level of equipoise in the claim of service connection for a heart disorder, to include coronary artery disease. Therefore, the claim must be denied. The record reflects that the Veteran has a diagnosis of coronary artery disease and heart valve replacement. See C & P Exam, December 2020. Thus, the questions for the Board are: (1) whether there exists an in-service event, injury, or disease relevant to a heart disorder, and (2) whether there is a medical nexus between any current heart disorder and the in-service occurrence. 38 C.F.R. § 3.303. Service treatment records do not show any reports, symptoms, treatment, or diagnoses of a heart disorder. The separation examination revealed a normal heart, and the Veteran explicitly denied any shortness of breath, palpitation or pounding heart, or pain or pressure in the chest in his separation report of medical history. During the Veteran’s hearing in May 2019, he testified, among other things, that he began to experience a rapid heartrate during military service. He indicated that his rapid heartrate usually began after running, but he did not seek medical treatment for this symptom while in the military. The Veteran underwent a VA examination in December 2020. After reviewing the claims file, the examiner opined that it is less likely than not that any heart disorder had its onset during or is etiologically related to military service. He considered the Veteran’s lay reports of having a fluttering-type sensation in his heart while in the military, usually occurring with running, but observed that the separation medical examination did not show a heart disorder. He also noted that the claims file is silent for treatment of a heart disorder for more than four decades after military service, and that there was no chronicity or continuity of care for a heart disorder. The examiner concluded that due to the large gap of time between active duty and the Veteran’s chronic heart condition, it is less likely than not that a chronic heart condition is due to military service. The Board has reviewed the VA and private medical records, including from Dr. N.P. However, such records do not show evidence of an incurrence of coronary artery disease or another heart disorder during military service, or a nexus between any current heart disorder and military service. See 38 C.F.R. § 3.303. After careful review of the record, the Board concludes that the most probative evidence does not reach the level of equipoise in the claim of service connection for a heart disorder. In reaching this finding, the Board has considered the medical evidence. The December 2020 VA examiner determined that it is less likely than not that a current heart disorder had its onset during or is related to military service. As the examiner rendered a persuasive medical opinion consistent with her professional expertise and her review of the Veteran’s medical history and claims file, the Board finds her conclusions to be of significant probative weight. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The Board has considered the Veteran’s lay statements. However, he has not been shown to have the complex medical knowledge necessary to opine as to a nexus between his current heart disorder and remote military service. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). Additionally, the Board notes that the Veteran explicitly denied having heart palpitations or pounding heart, shortness of breath, or pain or pressure in the chest in his report of medical history at separation from service, which undermines the credibility of his testimony. See Caluza v. Brown, 7 Vet. App. 496, 511 (1995) (holding that the Board may properly consider internal consistency and consistency with other evidence of record when determining the credibility of lay evidence); Curry v. Brown, 7 Vet. App. 59, 68 (1994) (holding that contemporaneous evidence has greater probative value than history as reported by a Veteran). Therefore, the Board affords higher probative weight to the competent medical evidence of record. In sum, the most probative evidence does not support the claim of entitlement to service connection for a heart disorder, and, thus, the claim must be denied. See 38 U.S.C. § 5107(a); Fagan v. Shinseki, 573 F.3d 1282, 1286 (Fed. Cir. 2009) (noting that the benefit of the doubt standard in section 5107(b) is not applicable based on pure speculation or remote possibility). 2. Entitlement to higher staged ratings for bilateral hearing loss The Board finds that the most probative evidence is at least in relative equipoise as to whether the Veteran’s bilateral hearing loss manifested functional impairment to the extent that a 10 percent rating should be assigned from July 28, 2014. However, no higher ratings are appropriate during the appeal period. Disability ratings for hearing loss are determined by mechanically applying the rating criteria to certified audiometric testing results. Evaluations are based on organic impairment of hearing acuity as measured by the results of controlled speech discrimination tests, together with the average hearing threshold level as measured by puretone audiometry tests in the frequencies of 1000, 2000, 3000, and 4000 Hertz. The rating criteria establish eleven auditory acuity levels designated from I to XI. As set forth in the regulations, Tables VI, VIa, and VII are used to calculate the rating to be assigned. See 38 C.F.R. § 4.85, DC 6100. Speech discrimination scores must be obtained using the Maryland CNC test. Id. Turning to the evidence of record, the Veteran submitted a report of a private audiological evaluation performed in June 2014. Audiometric testing revealed pure tone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 15 20 40 55 75 LEFT 10 15 35 60 75 Speech audiometry revealed speech recognition ability of 68 percent in the right ear at 60 decibels (72 percent at 85 decibels) and of 68 percent in the left ear at 65 and 85 decibels. Since there are two listed values for Maryland CNC speech recognition in the right ear, the Board will resolve reasonable doubt in the Veteran’s favor and select the more severe value of 68 percent. The pure tone threshold averages were 47.5 in the right ear and 46.25 in the left ear. When applied to Table VI, the result is a value of IV for both ears, which indicates that a 10 percent rating is warranted under Table VII. The Veteran underwent a private audiological evaluation with E.M., Au.d., in May 2019. Audiometric testing showed pure tone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 25 25 55 75 75 LEFT 20 25 70 75 80 Speech audiometry revealed speech recognition ability of 72 percent in the right ear and of 76 percent in the left ear. Pure tone threshold averages were 57.5 in the right ear and 62.5 in the left ear. When applied to Table VI, the result is a value of IV for both ears and, thus, a 10 percent rating is indicated under Table VII. The Veteran underwent a VA examination in December 2020. Audiometric testing showed pure tone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 25 30 50 55 60 LEFT 25 30 60 70 80 Speech audiometry revealed speech recognition ability of 80 percent in the right ear and of 76 percent in the left ear. Pure tone threshold averages were 48.75 in the right ear and 60 in the left ear. When applied to Table VI, the result is a value of III in the right ear and IV in the left ear, which yields a 10 percent rating. During his hearing before the Board, the Veteran testified, among other things, that his hearing loss had not improved during the period when VA reduced his rating. He stated that he is unable to pick up conversations without his hearing device, and did not notice any improvement at all prior to VA reducing his rating. After careful review of the record, the Board finds that the most probative evidence is at least in relative equipoise as to whether a 10 percent rating, and no higher, should be assigned for the Veteran’s bilateral hearing loss from July 28, 2014. In this regard, the Board attaches high probative weight to the private audiometric evaluations in June 2014 and May 2019, which documented objective evidence that the Veteran’s disorder manifested impairment consistent with a 10 percent rating. 38 C.F.R. § 4.85, DC 6100. The Board is aware that a VA examination in July 2014 and a private medical exam in 2015 suggested functional impairment consistent with a non-compensable rating. Nevertheless, in this case, after considering the Veteran’s lay testimony and the private audiological evaluations, the Board finds that the evidence does not clearly show improvement in his bilateral hearing loss. Thus, the Board will resolve reasonable doubt in the Veteran’s favor and restore the 10 percent rating from July 28, 2014. The Board has considered whether a higher rating than 10 percent may be assigned. However, the record does not reflect evidence of functional impairment to the extent that such a rating would be appropriate. In sum, entitlement to a 10 percent rating, and no higher, for bilateral hearing loss is granted from July 28, 2014. ANTHONY C. SCIRÉ, JR Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Reed, 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.