Citation Nr: 21009075 Decision Date: 02/18/21 Archive Date: 02/18/21 DOCKET NO. 19-18 471 DATE: February 18, 2021 ORDER Entitlement to service connection for bilateral hearing loss is denied. Entitlement to service connection for tinnitus is denied. Entitlement to a 10 percent rating, but no higher, for scar status post coronary artery bypass surgery is granted. REMANDED Entitlement to an increased rating above 10 percent prior to February 8, 2017, for CAD status post coronary artery bypass surgery is remanded. Entitlement to an increased rating above 60 percent since February 8, 2017, for CAD status post coronary artery bypass surgery is remanded. Entitlement to an effective date earlier than February 8, 2017, for the grant of Dependent’s Educational Assistance (DEA) under 38 U.S.C. Chapter 35 is remanded. Entitlement to an effective date earlier than February 8, 2017, for the grant of entitlement to a total disability rating based on unemployability (TDIU) is remanded. FINDINGS OF FACT 1. The probative evidence weighs in favor of finding that the Veteran’s bilateral sensorineural hearing loss was not chronic in service, did not manifest to a compensable degree within the applicable presumptive period, did not exhibit continuity of symptomatology, and is not otherwise etiologically related to an in-service injury or disease. 2. The probative evidence weighs in favor of finding that the Veteran’s tinnitus was not chronic in service, did not manifest to a compensable degree within the applicable presumptive period, did not exhibit continuity of symptomatology, and is not otherwise etiologically related to an in-service injury or disease. 3. Throughout the appeal period, the Veteran’s chest scar has been painful, but the evidence does not indicate that it has been unstable. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for bilateral hearing loss have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385 (2018). 2. The criteria for entitlement to service connection for tinnitus have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385 (2018). 3. The criteria for entitlement to a 10 percent rating, but no higher, for scar status post coronary artery bypass surgery have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.321, 4.3, 4.118, Diagnostic Codes (DC’s) 7804, 7805 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had qualifying service from February 1966 to December 1967. A January 2008 Board Decision denied entitlement to service connection for CAD; the Veteran did not timely appeal that decision and it became final. In an April 2016 Rating Decision, the agency of original jurisdiction (AOJ) conducted a special review of the Veteran’s file pursuant to Nehmer and granted service connection for CAD at 10 percent effective October 1, 2004; the Veteran timely appealed, requesting an increased rating and TDIU (see July 2016 Notice of Disagreement [NOD]; January 2017 VA Form 21-526EZ). Nehmer v. U.S. Department of Veterans Affairs, 712 F. Supp. 1404, 1409 (N.D. Cal. 1989). In an April 2017 Rating Decision, the AOJ increased the CAD rating from 10 percent to 60 percent effective January 9, 2017, granted a separate rating for the associated scar at 0 percent effective October 1, 2014, granted TDIU effective January 9, 2017, and granted DEA effective January 9, 2017; the Veteran timely appealed, requesting an earlier effective dates for the 10 and 60 percent CAD ratings, increased ratings above 10 and 60 percent for CAD, earlier effective dates for the DEA and TDIU grants (see May 2017 NOD; July 2017 NOD; April 2018 NOD; May 2019 VA Form 20-0995). In a June 2019 Rating Decision, the AOJ changed the effective dates of service connection for CAD (rating it at 100 percent from December 3, 2000, 10 percent from March 1, 2001, and 60 percent since February 8, 2017), changed the effective date of service connection for the scar (rating it at 0 percent since December 3, 2000), changed the effective date of the TDIU grant (to February 8, 2017), and changed the effective date of the DEA grant (to February 8, 2017); the Veteran timely appealed, continuing to request earlier effective dates and increased ratings (see August 2019 VA Form 9s). Despite the AOJ’s grants during the pendency of the appeal, higher ratings and earlier effective dates may still be available; as such, the appeal remains properly before the Board. AB v. Brown, 6 Vet. App. 35, 38 (1993). While a separate issue of entitlement to an earlier effective date for a 60 percent rating was contained on a June 2019 SOC and appealed, the Board finds that this matter is duplicative of the issue of entitlement to an increased rating for CAD, which has also been perfected on appeal to the Board, and the latter issue is more encompassing. As such, the Board will characterize the issues as set forth above, which will address both matters. Preliminarily, the Board acknowledges the representative’s November 2020 Brief, which: (a) contended that the June 2019 Rating Decision was “unissued” by the AOJ; and (b) asked the Board to refer those claims to the AOJ with instructions to issue that Rating Decision. However, the Board notes that the AOJ already implemented the June 2019 Rating Decision, as evidenced by the June 2019 and subsequent Codesheets. Further, the Board explored the possibility that the representative meant that she never received a copy of the June 2019 Rating Decision; however, during a January 2021 phone call with the representative’s office, VA confirmed that the representative received a copy of the entire claims file and that there were no outstanding document requests. As such, the Board has proceeded to adjudicate the claims herein. Service Connection Direct service connection may be warranted when the evidence shows: (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 or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Presumptive service connection may also be warranted for certain chronic diseases listed at 38 C.F.R. § 3.309(a), including sensorineural hearing loss and tinnitus (organic disease of the nervous system), if manifest to at least a compensable degree within one year from separation from service. 38 C.F.R. §§ 3.307(a)(3), 3.309(a). 1. Entitlement to service connection for bilateral hearing loss The Veteran generally contends that his bilateral hearing loss and tinnitus are etiologically related to his service. See August 2016 VA Form 21-8940. Although the Veteran has not specified any particular injury or event that led to his hearing problems, the Board notes that his military occupational specialty (MOS) was a general warehouseman (unit supply specialist), which had a low probability for hazardous noise exposure. See DD Form 214. Service treatment records (STRs) do not document any hearing abnormalities. See November 1965 pre-induction examination, December 1965 pre-induction examination, December 1967 separation examination. Further, the Veteran has not contended, and the medical records do not show, that he has experienced hearing loss or tinnitus since service or within one year after separation (see, for example, April 2003 and October 2003 San Juan VAMC records documenting that the Veteran did not experience hearing loss or tinnitus). As such, the Board finds that the Veteran’s hearing loss and tinnitus were not chronic in service, did not manifest to a compensable degree within the applicable presumptive period, and did not exhibit continuity of symptomatology since service. The November 2016 VA audiological examiner found: (a) bilateral sensorineural hearing loss that was etiologically unrelated to service; and (b) tinnitus secondary to the hearing loss (because the Veteran reported intermittent tinnitus onset about one year prior and because tinnitus is known to be a symptom associated with hearing loss). The examiner explained that: (a) according to the STRs, the Veteran had normal hearing at all tested frequencies in both ears upon separation and the Veteran’s MOS had only a low probability of hazardous noise exposure; however, (b) the Veteran was concurrently 71 years old and his hearing loss and tinnitus were more likely to be the result of the natural aging process, to hereditary factors, to post-service noise exposure, or to a combination of all those factors. The Board finds the examiner’s opinion to be probative because it considered the pertinent evidence and contained sufficient rationale to support the conclusion; further, the Veteran has not submitted an etiological opinion from a private provider that contradicts the November 2016 VA opinion. Based on the above, the Board finds that the probative evidence weighs in favor of finding that the Veteran’s bilateral sensorineural hearing loss and tinnitus were not chronic in service, did not manifest to a compensable degree within the applicable presumptive period, did not exhibit continuity of symptomatology, and were not otherwise etiologically related to an in-service injury or disease. Notably, although the Veteran is competent to report tinnitus onset because it is a lay-observable condition, as discussed above, he has contended tinnitus since about November 2015, not since service (see November 2016 VA examination report), which the examiner competently diagnosed as a symptoms of hearing loss; further, although the Veteran is competent to report general hearing loss, the evidence does not show that he has the necessary medical background to competently identify hearing loss for VA purposes, which requires audiological testing to meet specific requirements (38 C.F.R. § 3.385). Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Layno v. Brown, 6 Vet. App. 465 (1994). Accordingly, the Veteran’s etiological opinion regarding hearing loss is of no probative value, the Veteran has not submitted any private etiological opinions regarding hearing loss or tinnitus, and the November 2016 VA examiner competently opined that neither condition was at least as likely as not etiologically related to service. Thus, because presumptive service connection is precluded and direct service connection is not warranted, the claims must be denied. 2. Entitlement to service connection for tinnitus This claim is denied for the same reasons and bases discussed immediately above. Increased Ratings In determining the severity of a disability, the Board applies the criteria set forth in the Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If the disability more closely approximates the criteria for the higher of two ratings, the higher rating is assigned. 38 C.F.R. § 4.7. 3. Entitlement to a compensable rating for scar status post coronary artery bypass surgery This scar has been rated under DC 7805 at zero percent since December 3, 2000. 38 C.F.R. § 4.118, DC 7805; June 2019 Codesheet. Under DC 7805, scars and other effects of scars are evaluated under DCs 7800, 7801, 7802, 7804, or another appropriate DC. 38 C.F.R. § 4.118, DC 7805. In this case, DC 7800 is not applicable because the chest scar is not a burn scar, DC 7801 is not applicable because the evidence does not indicate that the chest scar is associated with underlying soft tissue damage, and DC 7802 is not applicable because the chest scar does not have an area of 144 square inches or greater; however, DC 7804 is appropriate because it contemplates scars that are unstable and/or painful. 38 C.F.R. § 4.118, DCs 7800, 7801, 7802, 7804, 7805. Under DC 7804, a 10 percent rating is warranted for one or two scars that are unstable or painful. 38 C.F.R. § 4.118, DC 7804. A 20 percent rating is warranted for three or four scars that are unstable or painful. Id. A 30 percent (maximum schedular) rating is warranted for five or more scars that are unstable or painful. Id. An unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar. Id at Note (1). If one or more scars are both unstable and painful, VA adds 10 percent to the evaluation that is based on the total number of unstable or painful scars. Id at Note (2). The February 2017 VA heart conditions examiner documented one chest scar that: (a) was not painful; (b) was not unstable; (c) did not have a total area equal to or greater than 39 square centimeters (6 square inches); (d) was not located on the head, face, or neck; and (e) measured 10 centimeters long by 0.1 centimeters wide. In a November 2020 Brief, the Veteran reported that he experiences pain from his chest scar and requested a 10 percent rating. Based on the Veteran’s report, the Board finds that, throughout the appeal period, the Veteran’s chest scar has been painful. Specifically, the Veteran is competent to report pain because it is lay observable through his own senses; thus, the Board defers to the Veteran’s identification of pain. Layno, supra; Jandreau, supra. However, higher ratings are precluded because the evidence does not indicate that the chest scar has been unstable and because there is only one scar. As such, 10 percent is the highest schedular rating currently allowed for this disability; thus, the Board grants entitlement to a 10 percent rating, but no higher, for the chest scar. REASONS FOR REMAND 1. Entitlement to an increased rating above 10 percent prior to February 8, 2017, for CAD status post coronary artery bypass surgery The CAD disability is currently rated under DC 7017 at: 100 percent from December 3, 2000; 10 percent from March 1, 2001; and 60 percent since February 8, 2017. See June 2019 Codesheet; 38 C.F.R. § 4.104, DC 7017. In the November 2020 Brief, the representative contended that the functional loss described throughout the record, including during the July 2008 and February 2017 VA examinations, is more appropriately contemplated by a workload of under 3 METs (warranting a 100 percent rating) than by the examiners’ higher workload findings of 10.80 METs (July 2008 examiner) and greater than 3 to 5 METs (February 2017 examiner). In support of her contention, the representative attached: (a) a 7-page article describing how METs are calculated; (b) a 5-page article comparing preoperative assessment of METs estimated from history versus measured by exercise cardiac stress testing; and (c) a 1-page affidavit from the Veteran describing his associated symptoms and functional loss since 2000. See November 2020 Brief with attachments. As such, the AOJ must seek medical clarification regarding whether this contention of miscalculated METs is medically accurate. 2. Entitlement to an increased rating above 60 percent since February 8, 2017, for CAD status post coronary artery bypass surgery This claim is remanded for the same reasons discussed immediately above. 3. Entitlement to an effective date earlier than February 8, 2017, for the grant of DEA under 38 U.S.C. Chapter 35 The analysis of this claim is inextricably intertwined with the outcome of the remanded TDIU claim because an earlier effective date for the TDIU grant will affect the earliest date available for DEA eligibility; as such, this issue must be remanded concurrently. Harris, supra; Gurley, supra. 4. Entitlement to an effective date earlier than February 8, 2017, for the grant of entitlement to a TDIU The analysis of this claim is inextricably intertwined with the outcome of the remanded CAD claims because an earlier effective date for the 60 percent rating and/or increased ratings will affect the combined evaluation, which is used to calculate the earliest date available for schedular TDIU consideration; as such, this issue must be remanded concurrently. Harris, supra; Gurley, supra. The matters are REMANDED for the following action: 1. Regarding the increased rating claims for CAD, obtain an opinion from a medical professional to address the representative’s November 2020 contention of miscalculated METs is medically accurate. The examiner must address: (a) the November 2020 Brief, in which the representative contended that the functional loss described throughout the record, including during the July 2008 and February 2017 VA examinations, is more appropriately contemplated by a workload of under 3 METs (warranting a 100 percent rating) than by the examiners’ higher workload findings of 10.80 METs (July 2008 examiner) and greater than 3 to 5 METs (February 2017 examiner); and (b) the attachments to the November 2020 Brief submitted in support of the miscalculated METs contention (a 7-page article describing how METs are calculated, a 5-page article comparing preoperative assessment of METs estimated from history versus measured by exercise cardiac stress testing, and a 1-page affidavit from the Veteran describing his associated symptoms and functional loss since 2000). Due to COVID-19, the Board defers to the examiner’s discretion to determine whether in-person examination is required to render the requested opinion. 2. Readjudicate the appeal. R. FEINBERG Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board H. Daus, 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.