Citation Nr: 21010559 Decision Date: 02/25/21 Archive Date: 02/25/21 DOCKET NO. 15-27 399A DATE: February 25, 2021 ORDER An increased rating in excess of 10 percent for service-connected bilateral hearing loss for the entire appeal period that began May 21, 2013 is denied. An increased rating in excess of 60 percent for service-connected Ischemic Heart Disease (IHD) prior to April 30, 2013 or after December 23, 2019 is denied. FINDINGS OF FACT 1. The Board of Veteran’s Appeals (Board) March 8, 2019 decision granted service connection for right ear hearing loss, and the Veteran was already service connected for his left ear disability since March 25, 1991, which changes the claim from an increased rating claim for a left ear hearing loss to an increased bilateral hearing loss claim. 2. The Veteran’s bilateral hearing loss results in hearing acuity of no worse than Level III in the right ear and no worse than Level IV in the left ear. 3. For the appeal stages prior to April 30, 2013, and after December 23, 2019, the Veteran’s coronary artery disease is manifested by a workload of greater than 3 Metabolic Equivalents (METs) but not greater than 5 METs with continuous medication required. CONCLUSIONS OF LAW 1. For the appeal period, the criteria for entitlement to an increased rating over 10 percent for bilateral hearing loss have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.85, 4.86, Diagnostic Code (DC) 6100. 2. The criteria for an increased rating in excess of 60 percent for coronary artery disease for the period on appeal prior to April 30, 2013, and after December 23, 2019, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.104, DC 7005. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served in the United States Army from January 1964 to March 1987. These matters come before the Board of Veterans' Appeals (Board) on appeal from a March 2014 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In August 2018, the Veteran testified before the undersigned Veterans Law Judge (VLJ). A copy of the transcript has been associated with the electronic claims file. Most recently, the Board remanded the claims to the RO in March 2019 to obtain VA medical examinations. After review of the record, the Board finds there has been substantial compliance with the March 2019 remand orders, and the claims are properly before the Board. See Stegall v. West, 11 Vet. App. 268, 271 (1998). This appeal has been advanced on the Board’s docket pursuant to 38 C.F.R. § 20.900(c) (20177). 38 U.S.C. § 7107(a)(2) (2012). Increased Rating Disability evaluations are determined by evaluating the extent to which a Veteran's service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities. The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and the residual conditions in civilian occupations. Generally, the degree of disabilities specified are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.1 (2017). Separate diagnostic codes identify the various disabilities and the criteria for specific ratings. If two disability evaluations are potentially applicable, the higher evaluation will be assigned to the disability picture that more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2017). Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3 (2017). However, the evaluation of the same disability under various diagnoses, known as pyramiding, is to be avoided. 38 C.F.R. § 4.14 (2017). Where, as here, entitlement to compensation has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, staged ratings are appropriate for an increased rating claim if the factual findings show distinct time periods where the service-connected disability exhibited symptoms that would warrant different ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). The following discussion addresses the Veteran's level of disability from the time the increased rating claim was filed in May 2013. Francisco, 7 Vet. App. 55; Hart, 21 Vet. App. 505. 1. An increased rating for service-connected bilateral hearing loss The Veteran contends that his hearing loss has worsened, and an increased rating is warranted. From March 1991 to December 2020, the Veteran was service connected and in receipt of a noncompensable disability rating for his left ear hearing loss. The Board service connected his right ear disability in a March 2019 decision. After the February 2020 VA examination, the Department of Veterans Affairs (VA) Regional Office (RO) increased the Veteran’s disability rating to 10 percent with an effective date of May 2013, the date of his increased rating claim. The Veteran was notified that this was a partial grant of the benefit sought on appeal and the issue on appeal was not considered to be fully resolved. AB v. Brown, 6 Vet. App. 35 (1993). In evaluating service-connected hearing loss, disability ratings are derived from mechanical application of the rating schedule to numeric designations assigned after audiometric evaluations are performed. Lendenmann v. Principi, 3 Vet. App. 345 (1992). Evaluations of bilateral hearing loss range from noncompensable to 100 percent based on organic impairment of hearing acuity, as measured by a controlled speech discrimination test (Maryland CNC) and the average hearing threshold, as measured by puretone audiometric tests at the frequencies of 1,000, 2,000, 3,000 and 4,000 Hertz. The rating schedule establishes 11 auditory acuity levels designated from Level I, for essentially normal hearing acuity, through level XI for profound deafness. An examination for hearing impairment for VA purposes must be conducted by a state-licensed audiologist and must include a controlled speech discrimination test (Maryland CNC) and a puretone audiometry test. Examinations will be conducted without the use of hearing aids. 38 C.F.R. § 4.85(a). Under 38 C.F.R. § 4.85, Table VI (Numeric Designation of Hearing Impairment Based on Puretone Threshold Average and Speech Discrimination) is used to determine a Roman numeral designation (I through XI) for hearing impairment based on a combination of the percent of speech discrimination (horizontal rows) and the puretone threshold average (vertical columns). The Roman numeral designation is located at the point where the percentage of speech discrimination and puretone average intersect. 38 C.F.R. § 4.85(b). The puretone threshold average is the sum of the puretone thresholds at 1,000, 2,000, 3,000 and 4,000 Hertz, divided by 4. This average is used in all cases to determine the Roman numeral designation for hearing impairment. 38 C.F.R. § 4.85(d). Table VI % of discrimination Puretone Threshold Average 0-41 42-49 50-57 58-65 66-73 74-81 82-89 90-97 98+ 92-100 I I I II II II III III IV 84-90 II II II III III III IV IV IV 76-82 III III IV IV IV V V V V 68-74 IV IV V V VI VI VII VII VII 60-66 V V VI VI VII VII VIII VIII VIII 52-58 VI VI VII VII VIII VIII VIII VIII IX 44-50 VII VII VIII VIII VIII IX IX IX X 36-42 VIII VIII VIII IX IX IX X X X 0-34 IX X XI XI XI XI XI XI XI Alternatively, VA regulations provide that in cases of exceptional hearing loss, when the puretone thresholds at each of the four specified frequencies (1,000, 2,000, 3,000 and 4,000 Hertz) is 55 decibels or more, 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. Each ear will be evaluated separately. 38 C.F.R. § 4.86(a). The provisions of 38 C.F.R. § 4.86(b) further provide that, when the puretone threshold is 30 decibels or less at 1,000 Hertz, and 70 decibels or more at 2,000 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. That numeral will then be elevated to the next higher Roman numeral. Each ear will be evaluated separately. Table VIA Numeric designation of hearing impairment based only on puretone threshold average: 0-41 42-48 49-55 56-62 63-69 70-76 77-83 84-90 91-97 98-104 105+ I II III IV V VI VII VIII IX X XI The findings for each ear from either Table VI or Table VIA, are then applied to Table VII (Percentage Evaluations for Hearing Impairment) to determine the percentage evaluation by combining the Roman numeral designations for hearing impairment of each ear. The horizontal rows represent the ear having the better hearing and the vertical columns the ear having the poor hearing. The percentage evaluation is located at the point where the rows and column intersect. 38 C.F.R. § 4.85(e) Table VII Percentage evaluation for hearing impairment (diagnostic code 6100)   Poorer Ear XI 100*                     X 90 80                   IX 80 70 60                 VIII 70 60 50 50               VII 60 60 50 40 40             VI 50 50 40 40 30 30           V 40 40 40 30 30 20 20         IV 30 30 30 20 20 20 10 10       III 20 20 20 20 20 10 10 10 0     II 10 10 10 10 10 10 10 0 0 0   I 10 10 0 0 0 0 0 0 0 0 0   XI X IX VIII VII VI V IV III II I From the time of the Veteran’s increased rating claim, three hearing examinations have been conducted. One VA exam was done in February 2014, one private exam in May 2014 and another VA exam in February 2020, after the Veteran’s claim was remanded by the Board, for another examination. There is no other audiological testing of record relevant to the period on appeal. The RO used the February 2014 VA audiological results to grant a 10 percent rating for the Veteran’s bilateral hearing loss in September 2020:       1000   2000   3000   4000   Average RIGHT   20 40 60 55 44 LEFT   25 60 60 55 50 The speech discrimination score for the 2014 VA exam found 80 percent scores for both ears. Applying the VA exam results to Table VI, the findings yield a numeric designation of Level III in the right ear and Level IV in the left ear. Entering the bilateral numeric designation of Level III for the right ear and Level IV for the left ear to 38 C.F.R. § 4.85, Table VII, equates to a 10 percent disability rating under Diagnostic Code 6100 for the Veteran’s bilateral hearing disability. An exceptional hearing pattern is not shown and C.F.R. § 4.86 is not applicable. There is also a May 2014 private audiological examination of record during the appeal period with the following test results:       1000   2000   3000   4000   Average RIGHT   35 50 50 50 46.25 LEFT   35 70 75 60 60 The speech discrimination score for the May 2014 test, determined using the Maryland CNC test, showed a 68 percent score for the left ear and 96 percent for the right ear. Applying these results to Table VI, the findings yield a numeric designation of Level I in the right ear and Level V in the left ear. This equates to a noncompensable evaluation under Diagnostic Code 6100. An exceptional hearing pattern is not shown and C.F.R. § 4.86 is not applicable. The February 2020 VA hearing examination puretone threshold levels are as follows:       1000   2000   3000   4000   Average RIGHT   40 55 70 65 57.5 LEFT   40 70 75 75 65    The speech discrimination scores for the February 2020 test, determined using the Maryland CNC test, showed a 96 percent score for both ears. Applying the February 2020 VA exam results to Table VI, the findings yield a numeric designation of Level II in the right ear and Level II in the left ear. Entering the bilateral numeric designation of Level II for the right ear and Level II for the left ear to 38 C.F.R. § 4.85, Table VII, equates to a noncompensable disability rating under Diagnostic Code 6100. An exceptional hearing pattern is not shown and C.F.R. § 4.86 is not applicable. The RO said, “The 02/11/2020 exam shows a possible improvement though sustained material improvement is not demonstrated. This is deemed episodic. A future exam is not scheduled due to the Veteran's age.” The Board finds the evidence on hearing loss is at least in equipoise between the 0 percent February 2020 VA exam results and 10 percent disability results of February 2014. The Veteran reported during the February 2020 VA exam that his hearing disability causes difficulty with clarity and hearing TV. At the August 2018 Board hearing the Veteran said his hearing affects his balance, and when he walks, he sometimes stumbles and loses his balance. He said his balance is better with his hearing aids but still not quite what it should be. The decision by the RO granting a 10% disability rating for bilateral hearing loss was a favorable finding for the Veteran. Disability ratings for hearing loss for VA purposes are mechanical and the Board finds there is no other evidence of record to show that the Veteran is due a rating in excess of the 10 percent he was afforded by the RO in September 2020. Therefore, a rating in excess of 10 percent is denied. 2. An evaluation in excess of 60 percent disabling for a heart disability during the appeal period prior to April 30, 2013 or after December 23, 2019 The Veteran contends that his heart condition has worsened during the appeal period and an increased rating in excess of 60 percent is warranted. The schedular rating for heart diseases has only one rating above 60, which is 100 percent. The Veteran has been assigned the highest rating twice since his initial service connection in July 1987. Both occasions it was for heart surgery and a period following surgery. The last time the Veteran was assigned the 100 percent rating was in April 2013 until December 2019. Entitlement to an increased evaluation for coronary artery disease, unstable angina and cardiomyopathy status post coronary artery bypass graft and myocardial infarction, was increased to 60 percent effective September 30, 2010 by the RO in September 2020. An evaluation of 100 percent was assigned from April 30, 2013 for heart surgery. An evaluation of 60 percent was assigned from December 23, 2019, the date of the Veteran’s most recent VA heart examination. Diagnostic Code 7005 says a 60 percent evaluation is warranted for 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 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 is warranted for chronic congestive heart failure, or when a 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. A note prior to the Diagnostic Code explains that one 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. 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. 38 C.F.R. § 4.104, Note (2). The start of the period now on appeal at the Board, was initiated with an increased rating claim received by VA on May 21, 2013. At that time the Veteran’s heart condition was rated at 30 percent, but the RO in its September 2020 Supplemental Statement of the Case (SSOC) made three staged rating findings concerning the Veteran’s heart condition reaching back to the Veteran’s September 2010 increased rating claim to the RO. Looking at all the relevant evidence of record, evaluating the evidence anew, the Board comes to the same staged rating decisions and confirms the findings of the RO. The claims file shows METS evaluations of 5-7 on 11/06/2010, 02/07/2012 and 06/29/2012. These METS numbers correspond to a 30 percent Ischemic Heart Disease (IHD) disability rating under DC 7005, which was assigned after convalescence from the Veteran’s June 1997 bypass surgery. During this same timeframe prior to the Veteran’s April 2013 heart surgery, an IHD Disability Benefit Questionnaire (DBQ) was conducted at Walter Reid Hospital that found METS of 3-5 in December 2011 with accompanying symptoms of angina and dyspnea. Giving the Walter Reid medical findings equal weight to the others, creates an equipoise in the evidence. The Board, like the RO, gives the Veteran the benefit of the doubt and the higher 60 percent rating for the start of the appeal period prior to his April 2013 surgery, but no higher. As outlined above, the evidence does not demonstrate 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. VA outpatient treatment records include a 2010 cardiac catheterization report that reflects an ejection fraction of 55%. A January 2013 treatment record reflected an ejection fraction of less than 40 %. The period of surgery and convalescence from 04/30/2013 to 12/23/2019 is not before the Board, because it already has the maximum 100 percent disability rating by the RO. The last remaining period on appeal currently before the Board is from 12/23/2019 which currently has a 60 percent disability rating. The start of the 60 percent rating matches the date of the December 2019 VA heart examination and is based on the findings from that exam. The examination was an in-person examination and included a review of the electronic claims folder. The diagnoses listed in the examination report include: 1. Acute, subacute, or old myocardial infarction, 2. Coronary artery disease, 3. Unstable angina, and 4. Cardiomyopathy. Additionally, the report lists Ischemic Heart Disease (IHD), atherosclerotic heart disease, and status post bypass surgery. The exam also lists eight continuous medications required for control of the Veteran’s heart condition, and states that the Veteran does not have congestive heart failure, (CHF), arrhythmia, heart valve condition, infectious heart condition, or pericardial adhesions. The examiner determined that exercise stress is not required as part of the Veteran’s current treatment plan, and this test is not without significant risk. Instead the examiner conducted an Interview-based METs test during the December 2019 examination. When asked during the interview, the Veteran reported symptoms of dyspnea, fatigue, and angina. Based on the answers during the interview the examiner determined that the Veteran’s METs level was greater than 3 to 5, and that the Veteran’s METs level was due solely to the cardiac conditions listed above. The examiner estimated the Veteran’s left ventricular ejection fraction (LVEF) was 60%. When asked to describe the impact of his heart condition on his ability to work, the Veteran is reported as saying, “Interferes with prolonged standing or walking for longer than 10 minutes.” The December 2019 VA examination results when used to determine the Veteran’s heart disability level using DC 7005 call for a 60 percent disability rating based on a METs value greater than 3 to 5 with symptoms of dyspnea, fatigue, and angina. To warrant the higher rating of 100%, the results would have to have been 3 METs or less and left ventricular dysfunction with an ejection fraction of less than 30 percent. The December 2019 exam was a recent examination, and the Board searched for other evidence around the same time in the claims file including VAMC notes, private exams, or lay statements, but found nothing in the claims file to contradict the 2019 exam findings. (Continued on the next page)   While the Board has noted the Veteran’s contentions regarding increased ratings for a service-connected heart disorder, the VA examinations of heart disease, treatment records, and lay statements provide no evidence to support higher evaluations, in excess of 60 percent for the appeal period prior to April 30, 2013 or after December 23, 2019. As there is no doubt to be resolved, the Veteran’s claim must be denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). H. SEESEL Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Black, 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.