Citation Nr: 21012047 Decision Date: 03/03/21 Archive Date: 03/03/21 DOCKET NO. 18-22 113 DATE: March 3, 2021 ORDER Entitlement to service connection for a heart disability is granted. Entitlement to an initial compensable rating prior to August 15, 2018, and in excess of 30 percent from August 15, 2018 and thereafter for bilateral hearing loss is denied. FINDINGS OF FACT 1. The probative evidence of record indicates that the Veteran has a current diagnosis of coronary artery disease that is at least as likely as not related to presumed herbicide exposure during his active service. 2. The evidence of record indicates that, prior to August 15, 2018, the Veteran’s bilateral hearing loss manifested in hearing levels of no worse than Level II in the right ear and Level II in the left ear per Table VI, and from August 15, 2018 and thereafter, the Veteran’s bilateral hearing loss manifested in hearing levels of no worse than Level VI in the right ear and Level VI in the left ear per Table VIa. CONCLUSIONS OF LAW 1. The criteria for service connection for a heart disability have been met. 38 U.S.C. §§ 1110, 1112, 1116, 1116A, 1137, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309(e). 2. The criteria for an initial compensable rating prior to August 15, 2018, and in excess of 30 percent from August 15, 2018 and thereafter for bilateral hearing loss have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.385, 4.1, 4.2, 4.3, 4.7, 4.10, 4.14, 4.25, 4.85, 4.86, Diagnostic Code 6100. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served active duty in the United States Navy from July 1964 to June 1966. In a September 2018 VA Form 9, the Veteran requested a Board hearing. In November 2019 correspondence, the Veteran through his representative, withdrew his request for a hearing. Therefore, the Board will proceed accordingly. In May 2013, the Veteran filed a claim for service connection for a heart disability due to herbicide exposure. In January 2014, the AOJ denied service connection for a heart disability. The Veteran did not appeal this decision. Accordingly, the January 2014 rating decision became final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.160(d), 20.200, 20.201, 20.302, 20.1103. In October 2017, the Veteran requested that his claim for a heart disability be reopened. In this regard, generally, a claimant may reopen a finally adjudicated claim by submitting new and material evidence. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). The Board notes, however, that effective January 1, 2020, under the Blue Water Navy Act of 2019, VA enumerated presumptive exposure to herbicides for veterans that have served offshore of the Republic of Vietnam during the period from January 9, 1962 to May 7, 1975 under certain, specified circumstances. As the Act creates a new basis of entitlement, new and material evidence is not required to reopen the Veteran’s previously denied claim. See Spencer v. Brown, 4 Vet. App. 283, 288-89 (1993), aff'd 17 F.3d 368 (Fed. Cir. 1994). Therefore, the claim for service connection for a heart disability may be reviewed on a de novo basis. 1. Service connection for a heart disability The Veteran contends that his heart disability is due to his period of service, to include as due to exposure to herbicide agents. The Board concludes that the probative evidence of record indicates that the Veteran has a current diagnosis of coronary artery disease that is at least as likely as not related to presumed herbicide exposure during his active service. The Veteran’s August 2018 VA medical record indicates that he has an active diagnosis of coronary artery disease. The Board notes that coronary artery disease is one of the disabilities enumerated by regulation that is presumptively associated with exposure to herbicide agents. See 38 C.F.R. § 3.309(e). A September 2013 Joint Services Records and Research Center (JSRRC) response to request for information stated that the Veteran served aboard the U.S.S. Frank E. Evans (DD-754), which was in the official waters of the Republic of Vietnam from July 29, 1965 to August 6, 1965, and from September 24, 1965 to September 26, 1965. A January 2014 JSRRC record further detailed the ship’s history to include that the ship departed Yokosuka, Japan on July 20, 1965 for duty in the South China Sea off the coast of Vietnam. The record indicates that the ship patrolled her assigned surface surveillance station and screening station until August 7, 1965. The Veteran’s military personnel records are consistent with service on the ship during this time period. Prior to the decision in Procopio v. Wilkie, 913 F.3d 1371 (Fed. Cir. 2019), the presumption of exposure to herbicide agents provided under 38 U.S.C. § 1116 was extended only to those Vietnam veterans who served on the landmass or inland waterways of the Republic of Vietnam. In Procopio, however, the U.S. Court of Appeals for the Federal Circuit reversed its prior precedent and held that “service in the Republic of Vietnam under § 1116 includes service in the territorial sea.” The Blue Water Navy Vietnam Veterans Act of 2019 codified the Procopio holding, and further authorized VA to award disability benefits retroactively to Blue Water Navy Veterans and survivors who had previously submitted a claim for benefits that was denied based on the more restrictive definition of service in the Republic of Vietnam. See Blue Water Navy Vietnam Veterans Act of 2019, Pub. L. 116-23, to be codified at 38 U.S.C. § 1116A(c). As the Veteran served in the official waters off the coast of the Republic of Vietnam during the enumerated time period, he is presumed to have been exposed to herbicide agents during his service. As presumptive exposure to herbicide agents has been established and the Veteran’s heart disability is one of the enumerated presumptive herbicide-related disabilities, service connection for the Veteran’s heart disability is warranted. 2. An initial compensable rating prior to August 15, 2018, and in excess or 30 percent from August 15, 2018 and thereafter for bilateral hearing loss The Veteran contends that his bilateral hearing loss is such that an initial compensable rating, and a rating in excess of 30 percent from August 15, 2018 and thereafter, is warranted. Evaluations of bilateral defective hearing range from noncompensable to 100 percent 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 1000, 2000, 3000 and 4000 cycles per second, with 11 auditory acuity levels designated from Level I for essentially normal acuity through Level XI for profound deafness. 38 C.F.R. § 4.85. For VA purposes, impaired hearing will be considered a disability when the auditory threshold for any of the frequencies of 500, 1000, 2000, 3000 and 4000 Hertz is 40 decibels or greater; the auditory thresholds for at least three of these frequencies are 26 decibels or greater; or speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. In addition to the hearing loss criteria above, when the pure tone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) are all 55 decibels or more, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or Table VIa [38 C.F.R. § 4.85], whichever results in the higher numeral. 38 C.F.R. § 4.86(a). When the puretone threshold is 30 decibels or less at 1000 Hertz, and 70 decibels or more at 2000 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. 38 C.F.R. § 4.86(b). The Board notes that in an October 2013 VA medical record, the Veteran was given an auditory examination. While the examination record includes an audiometric frequency chart, it does not distinguish the right ear from the left ear. Moreover, this examination does not include a word recognition test. For these reasons, the record is inadequate for adjudicating the claim. In an April 2014 VA examination, the audiologist reported the following puretone thresholds (in decibels): HERTZ 500 1000 2000 3000 4000 RIGHT 5 15 60 70 80 LEFT 10 20 50 80 90 The examiner noted 84 percent word recognition for the right ear and 94 percent word recognition for the left ear. The Veteran reported difficulty understanding conversation and frustration from his ex-wife. The audiometric findings obtained in April 2014 are consistent with puretone threshold averages of 56 decibels in the right ear with speech discrimination of 84 percent and puretone threshold averages of 60 decibels in the left ear with speech discrimination of 94 percent. These clinical findings correlate to an auditory acuity numeric designation of a Level II hearing impairment for both ears. Under 38 C.F.R. § 4.85, Tables VI and VII, these findings warrant the assignment of a noncompensable rating. In an August 2018 VA examination, the audiologist reported the following puretone thresholds (in decibels): HERTZ 500 1000 2000 3000 4000 RIGHT 10 25 70 95 105+ LEFT 35 35 65 90 105+ The Veteran reported that he had to do a lot of lip reading due to his hearing loss and that he had problems understanding what he heard. The Board notes that the examiner reported 12 percent word recognition for the right ear and 28 percent word recognition for the left ear. The examiner, however, noted that use of the speech discrimination score is inappropriate for this Veteran because of language difficulties, cognitive problems, inconsistent speech discrimination scores, etc., that make combined use of puretone average and speech recognition scores inappropriate. As such, the Board has applied the formula located in Table VIa. 38 C.F.R. § 4.85(c). The audiometric findings obtained in August 2018 are consistent with puretone threshold averages of 74 decibels in both ears. These clinical findings correlate to an auditory acuity numeric designation of a VI for both ears under 38 C.F.R. § 4.85, Table VIa. Under 38 C.F.R. § 4.85, Tables VIa and VII, these findings warrant the assignment of a 30 percent rating. After review of the evidence, the Board finds the Veteran’s hearing loss most closely approximates to a noncompensable disabling rating prior to August 15, 2018. Moreover, the evidence indicates that a rating in excess of 30 percent, from August 15, 2018 and thereafter for bilateral hearing loss is not warranted. The Veteran is competent to report his symptoms and describe the impairment associated with his hearing loss. The Board finds these lay statements to be credible and consistent with the ratings assigned. To the extent he argues his symptomatology is more severe, the Veteran’s statements must be weighed against the other evidence of the record. The assignment of disability ratings for hearing impairment are derived by a mechanical application of the Rating Schedule to the numeric designations based on the audiology examination results. See Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). JENNIFER HWA Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Ford 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.