Citation Nr: 21007269 Decision Date: 02/09/21 Archive Date: 02/09/21 DOCKET NO. 15-24 242 DATE: February 9, 2021 ORDER Entitlement to a compensable initial rating for bilateral hearing loss is denied. Entitlement to an initial rating in excess of 10 percent prior to January 16, 2019, and in excess of 60 percent from January 16, 2019, for coronary artery disease (CAD) status post-coronary bypass graft (exclusive of the period of temporary total (100 percent) rating under Diagnostic Code 7017 for three months following hospital admission for surgery) is denied. FINDINGS OF FACT 1. The Veteran’s service-connected bilateral hearing loss is manifested by no worse than Level I hearing in his right ear and no worse than Level III hearing in his left ear. 2. For the time period from September 1, 2012 to June 15, 2019, the Veteran’s CAD was manifested by use of continuous medication; a workload of greater than 7; and left ventricle ejection fraction between 55 to 60 percent. 3. For the time period from June 16, 2019, the Veteran’s CAD was not manifested by chronic congestive heart failure; workload of 3 METs or less that resulted in dyspnea, fatigue, angina, dizziness, or syncope; or left ventricular dysfunction with an ejection fraction of less than 30 percent. CONCLUSIONS OF LAW 1. The criteria for a compensable initial rating for the Veteran’s service-connected bilateral hearing loss have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.7, 4.85, 4.86, Diagnostic Code 6100, and Tables VI, VIA, and VII. 2. The criteria for entitlement to an initial rating in excess of 10 percent prior to January 16, 2019, and in excess of 60 percent from January 16, 2019, for CAD have not been met. 38 U.S.C. § 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.104, Diagnostic Code 7017. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 1964 to September 1967. These matters come before the Board of Veterans’ Appeals (Board) on appeal of July 2013 (CAD) and May 2014 (bilateral hearing loss) rating decisions by a Department of Veterans Affairs (VA) Regional Office (RO). This case was previously remanded by the Board in April 2019. A review of the claims file shows that there has been substantial compliance with the Board’s remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). The case has been returned to the Board for review. In August 2018, the Veteran testified during a video conference hearing before the undersigned Veterans Law Judge who has since retired. The Board sent a letter to the Veteran acting if he wanted a new hearing and he declined the opportunity for a new hearing in October 2020. A transcript of the hearing is associated with the claims file and has been considered in this decision. In an April 2020 rating decision, the Agency of Original Jurisdiction (AOJ) increased the rating for the Veteran’s coronary artery disease, status post coronary artery bypass graft to 60 percent, effective January 16, 2019. As the increase did not satisfy the appeal in full, the issue remains on appeal and has been characterized as shown above. See AB v. Brown, 6 Vet. App. 35 (1993). The Board is cognizant of the ruling of the United States Court of Appeals for Veterans Claims (Court) in Rice v. Shinseki, 22 Vet. App. 447 (2009). In Rice, the Court held that a claim for a total rating based on individual unemployability (TDIU) due to service-connected disability, either expressly raised by the Veteran or reasonably raised by the record, involves an attempt to obtain an appropriate rating for a disability and is part of the claim for an increased rating. In this case, the Veteran has not argued, and the record does not otherwise reflect, that the disability at issue renders him unemployable. Accordingly, the Board concludes that a claim for TDIU has not been raised. Increased Rating Disability ratings are determined by the application of VA’s Schedule for Rating Disabilities (Schedule), which is based on the average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Pertinent regulations do not require that all cases show all findings specified by the Schedule, but that findings sufficient to identify the disease and the resulting disability and, above all, coordination of the rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21; see also Mauerhan v. Principi, 16 Vet. App. 436 (2002). When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3. Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as “staged ratings,” in all claims for increased ratings. Fenderson v. West, 12 Vet. App. 119, 126-27 (1999). 1. Entitlement to a compensable initial rating for bilateral hearing loss is denied. The Veteran seeks a compensable initial rating for his service-connected bilateral hearing loss. Disability ratings are determined by applying the criteria set forth in the VA Schedule of Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. Other applicable, general policy considerations are: interpreting reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating many accurately reflect the elements of disability, 38 C.F.R. § 4.2; resolving any reasonable doubt regarding the degree of disability in favor of the claimant, 38 C.F.R. § 4.3; where there is a questions as to which of two evaluations apply, assigning a higher of the two where the disability pictures more nearly approximate the criteria for the next higher rating, 38 C.F.R. § 4.7; and, evaluating functional impairment on the basis of lack of usefulness, and the effects of the disability upon the person’s ordinary activity, 38 C.F.R. § 4.10. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The Veteran’s service-connected bilateral hearing loss is rated as noncompensable under 38 C.F.R. § 4.85, Diagnostic Code 6100. The applicable rating period is from October 3, 2011, the effective date for the award of service connection for bilateral hearing loss, through the present. See 38 C.F.R. § 3.400. Ratings for hearing loss range from noncompensable to 100 percent based on organic impairment of hearing acuity as measured by the results of speech discrimination tests combined with the average puretone threshold levels as measured by puretone audiometry tests at the frequencies 1000, 2000, 3000, and 4000 Hertz. To rate the degree of disability for hearing loss, the Schedule has established eleven auditory acuity levels, designated from level I, for essentially normal acuity, through level XI, for profound deafness. 38 C.F.R. § 4.85 (h), Table VI. To establish entitlement to a compensable rating for hearing loss, it must be shown that certain minimum levels of the combination of the percentage of speech discrimination loss and average puretone decibel loss are met. The assignment of disability ratings for hearing impairment is derived by a mechanical application of the Schedule to the numeric designations assigned after audiometric evaluations are rendered. Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). The criteria for rating hearing impairment use the results of puretone audiometry tests together with the results of controlled speech discrimination tests, using the Maryland CNC test. Results of those tests are charted on Table VI and Table VII as set out in the Schedule. Table VIA, which allows for rating based only on puretone threshold averages, is used instead of Table VI when an examiner certifies that the use of speech discrimination testing is not appropriate or when there is an exceptional pattern of hearing impairment. 38 C.F.R. § 4.85 (c). When the puretone threshold at each of the four specified frequencies (1000, 2000, 3000, 4000 Hertz) is 55 decibels or more, it is appropriate to use the Roman numeral designation for hearing impairment from either Table VI or Table Via, whichever results in the higher numeral. Each ear will be evaluated separately. When the puretone threshold is 30 decibels or less at 1000 Hz, and 70 decibels or more at 2000 Hz, it is appropriate to use the Roman numeral designation for hearing impairment from either Table VI or Table VIa, whichever results in the higher numeral. That numeral will then be elevated to the next higher Roman numeral. Each ear is evaluated separately. 38 C.F.R. § 4.86 (b). Turning to the relevant evidence of record, the Board notes that the Veteran was provided a VA audiological examination in April 2014. The pertinent audiometric results, measured in decibels, were: HERTZ 1000 2000 3000 4000 Average RIGHT 30 45 60 55 48 LEFT 25 50 65 60 50 Speech audiometry revealed speech recognition ability of 94 percent in the right ear and 94 percent in the left ear. The results of the April 2014 audiological testing do not reflect an exceptional pattern of hearing impairment. 38 C.F.R. § 4.86. Under Table VI, the right ear is assigned a Level I impairment and the left ear is assigned a Level I impairment. When applied to Table VII, a noncompensable rating is warranted. The Veteran was also provided a VA audiological examination in October 2019. The pertinent audiometric results, measured in decibels, were: HERTZ 1000 2000 3000 4000 Average RIGHT 35 50 65 55 51 LEFT 40 60 70 65 59 Speech audiometry revealed speech recognition ability of 96 percent in the right ear and 88 percent in the left ear. The results of the October 2019 audiological testing do not reflect an exceptional pattern of hearing impairment. 38 C.F.R. § 4.86. Under Table VI, the right ear is assigned a Level I impairment and the left ear is assigned a Level III impairment. When applied to Table VII, a noncompensable rating is warranted. Accordingly, the competent evidence of record does not reflect that the Veteran’s bilateral hearing loss warranted a compensable initial rating during the rating period. To the extent that the Veteran contends that his bilateral hearing loss is more severe than reflected by his current disability rating, the Board acknowledges that the Veteran can attest to factual matters of which he has first-hand knowledge and understanding as a lay person such as difficulty understanding conversation. Layno v. Brown, 6 Vet. App. 465, 469 (1994). However, he is not competent to state that his hearing acuity is of a severity sufficient to warrant a higher rating under VA’s tables for rating hearing loss disability because such an opinion requires medical expertise and knowledge that he has not been shown to possess. Kahana v. Shinseki, 24 Vet. App. 428 (2011); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Accordingly, the Board attaches more probative weight to the medical records and clinical findings from the skilled medical professionals who conducted the VA audiological testing than to the Veteran’s lay witness statements. Moreover, the assignment of disability ratings for hearing loss is primarily based upon a mechanical application of the rating criteria, as explained and applied in this decision. In this case, the clinical evidence of record, when mechanically applied to the rating criteria, simply does not show that a compensable initial rating is warranted. Neither the Veteran nor his representative has raised any other issues with regard to the rating for the service-connected bilateral hearing loss, nor have any other such issues been reasonably raised by the record. Yancy v. McDonald, 27 Vet. App. 484, 495 (2016); Doucette v. Shulkin, 28 Vet. App. 366 (2017). Specifically, the Veteran has described the functional impact from his bilateral hearing loss as difficulty hearing. The provisions of 38 C.F.R. §§ 4.85 and 4.86 contemplate, and thus compensate for, the functional effects of hearing loss, namely difficulty understanding speech and the inability to hear sounds in various contexts. Doucette, 28 Vet. App. at 369. The situations noted by the Veteran in this case amount to decreased hearing and difficulty understanding speech in an everyday environment, and are not exceptional or unusual for someone with hearing loss. The Board therefore finds that the criteria for a compensable initial rating for the Veteran’s service-connected bilateral hearing loss have not been met at any time during the relevant rating period. As the preponderance of the evidence is against the assignment of a compensable initial rating the benefit-of-the-doubt doctrine is not for application, and the appeal must be denied. 38 U.S.C. § 5107 (b); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 2. Entitlement to higher initial ratings for CAD is denied. The Veteran seeks a higher initial rating for his service-connected CAD. The Veteran’s service-connected CAD is rated as 100 percent disabling prior to September 1, 2012, 10 percent disabling from September 1, 2012 to January 15, 2019, and 60 percent disabling from January 16, 2019 under 38 C.F.R. § 4.104, Diagnostic Code 7017. The applicable rating period is from May 7, 2012, the effective date for the award of service connection for CAD, through the present. See 38 C.F.R. § 3.400. Under Diagnostic Code 7017, a 10 percent rating requires workload greater than 7 metabolic equivalents (METs) but not greater than 10 METs that results in dyspnea, fatigue, angina, dizziness, or syncope or; requires continuous medication. A 30 percent rating requires workload greater than 5 METs but not greater than 7 METs that results in dyspnea, fatigue, angina, dizziness, or syncope or; evidence of cardiac hypertrophy or dilatation on electrocardiogram, echocardiogram, or X-ray. A 60 percent rating requires more than one episode of acute congestive heart failure in the past year or; workload of greater than 3 METs but not greater than 5 METs that results in dyspnea, fatigue, angina, dizziness, or syncope or; left ventricular dysfunction with an ejection fraction of 30 to 50 percent. A 100 percent rating requires chronic congestive heart failure or; workload of 3 METs or less that results in dyspnea, fatigue, angina, dizziness, or syncope or; left ventricular dysfunction with an ejection fraction of less than 30 percent. 38 C.F.R. § 4.104, Diagnostic Code 7017 (2019). One MET (metabolic equivalent) 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. A May 2012 ischemic heart disease disability benefits questionnaire reflects that the Veteran had coronary bypass surgery in May 2012. The examiner noted that the Veteran was provided an echocardiogram in April 2012, which reflected a left ventricular ejection fraction (LVEF) of 20 percent to 25 percent. The Veteran was provided a VA examination in June 2013. The VA examiner reviewed the record, interviewed the Veteran and conducted an in-person examination. The examiner listed a diagnosis of CAD, noting that the Veteran’s treatment plan included taking continuous medication for the diagnosed condition. LVEF was noted to be between 55 to 60 percent. The VA examiner noted that the Veteran’s METs level was greater than 7 METs but not greater than 10 METs. A September 2015 ischemic heart disease disability benefits questionnaire reflects that the Veteran takes continuous medication for his CAD. The examiner noted that the Veteran had congestive heart failure with no episodes of acute congestive heart failure in the past year. A July 2015 echocardiogram reflected LVEF of 55 percent. Additionally, a September 2015 exercise stress test reflected METs level of greater than five but not greater than 7. There was no evidence of dyspnea, fatigue, angina, dizziness, and syncope. The Veteran was provided a VA examination in October 2019. The VA examiner reviewed the record, interviewed the Veteran and conducted an in-person examination. The VA examiner noted that continuous medication is required for control of the Veteran’s heart condition. The VA examiner further noted that the Veteran has congestive heart failure with no episodes of congestive heart failure in the past year. An echogardiogram reflected LVEF of 45 to 50 percent. The VA examiner noted the Veteran’s METs, due solely to his service-connected CAD was greater than 3 METs but not greater than 5 METs. After a review of all the evidence for the time period from September 1, 2012 to January 15, 2019, the Board finds that the preponderance of the evidence is against the assignment of an initial rating in excess of 10 percent for the service-connected CAD. During this period, the evidence of record showed use of continuous medication; a workload of 7 METs but not greater than 10 METs; LVEF between 55 to 60 percent. The Board acknowledges that a September 2015 private examination reflects METs level of greater than 5 but not greater than 7. However, there was no evidence of dyspnea, fatigue, angina, dizziness, or syncope as required for a 30 percent rating under Diagnostic Code 7017. As such, a rating in excess of 10 percent is not warranted for the Veteran’s service-connected CAD from September 1, 2012 to January 15, 2019. For the period from January 16, 2019, evidence of record does not show that the Veteran’s CAD was manifested by chronic congestive heart failure or; workload of 3 METs or less that resulted in dyspnea, fatigue, angina, dizziness, or syncope or; left ventricular dysfunction with an ejection fraction of less than 30%. The Board finds that the preponderance of the evidence is against the assignment of a disability rating in excess of 60 percent for the service-connected CAD during this time period. The Board acknowledges that the Veteran believes that the disability on appeal has been more severe than the assigned disability ratings reflect. Moreover, the Veteran is competent to report observable symptoms, to include complaints of pain and dyspnea, and his reports are credible. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). However, the more probative evidence of record does not indicate that the assignment of any additional increased initial evaluations is warranted. In so finding, the Board notes that it weighed the lay and medical evidence and finds more probative opinions rendered by VA medical professionals given their expertise in evaluating CAD residuals. Based on the foregoing, the evidence of record showed no distinct periods of time during the appeal period when the Veteran’s service-connected CAD varied to such an extent that a rating greater or less than the ratings currently assigned would be warranted. See Fenderson v. West, 12 Vet. App. 119, 126 (1999); see also Hart v. Mansfield, 21 Vet. App. 505 (2007). (Continued on the next page)   In sum, the Board concludes that the symptomatology noted in the medical and lay evidence has been adequately addressed by the current ratings and that the Veteran’s service-connected CAD does not meet any applicable rating criteria for the assignment of any additional increased evaluations. In reaching this decision the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the Veteran’s claims of entitlement to additional increased initial evaluations for his service-connected CAD, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 369-370 (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). ROBERT C. SCHARNBERGER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. G. LeMoine 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.