Citation Nr: 21022575 Decision Date: 04/16/21 Archive Date: 04/16/21 DOCKET NO. 16-31 898 DATE: April 16, 2021 ORDER Entitlement to service connection for a heart disability is denied. Entitlement to an initial compensable rating for bilateral hearing loss is denied. REMANDED Entitlement to a TDIU prior to June 26, 2014 is remanded. FINDINGS OF FACT 1. The probative evidence of record demonstrates that the Veteran’s heart disability is not related to an in-service injury, event, or disease, and is not ischemic for the purpose of presumptive service connection. 2. The evidence of record indicates that the Veteran’s bilateral hearing loss manifested in hearing levels of no worse than Level II in the right ear and Level I in the left ear per Table VI. CONCLUSIONS OF LAW 1. The criteria for service connection for a heart disability have not been met. 38 U.S.C. §§ 1101, 1110; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309. 2. The criteria for an initial compensable rating 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 Army from September 1969 to September 1971. In February 2019, the Board remanded the appeal for further development. 1. Service connection for a heart disability The Veteran contends that his heart disability is due to his period of service. Specifically, the Veteran contends that he has an ischemic heart condition that is due to exposure to herbicides during service. The Board concludes that, while the Veteran had a diagnosis of a heart disability, the preponderance of the evidence weighs against finding that the Veteran’s diagnosis of a heart disability began during service or is otherwise related to an in-service injury, event, or disease, to include as due to exposure to herbicide agents. A veteran who served in the Republic of Vietnam during the Vietnam era is presumed to have been exposed to certain herbicide agents. In the case of such a veteran, service connection for certain disorders, such as ischemic heart disease, will be rebuttably presumed if they are manifest to a compensable degree at any time after service. 38 U.S.C. § 1116; 38 C.F.R. §§ 3.307(a)(6)(ii), 3.309(e). This presumption of service connection may be rebutted by affirmative evidence to the contrary. 38 U.S.C. § 1113; 38 C.F.R. § 3.307(d). In essence, if the Veteran did not serve in the Republic of Vietnam during the Vietnam era or in Korea, in or near the DMZ, between September 1, 1967 and August 31, 1971, actual exposure to herbicides must be verified through appropriate service department records or other sources for the presumption of service connection for an herbicide-related disease to be applicable. At the outset, the Board notes that the Veteran’s service records corroborate his service in Vietnam during the Vietnam Era. Because the Veteran served in Vietnam during the appropriate timeframe, he is presumed to have been exposed to herbicide agents as a result of his service in Vietnam. 38 U.S.C. § 1116(f). The Board notes that, while ischemic heart disease is a listed disease for such presumption under § 3.309(e), nonischemic heart disease is not. Therefore, analysis will turn to whether the Veteran’s heart disease is ischemic, such that presumptive service connection would be warranted. A January 2004 VA medical record notes “mri: sm vessel ischemic disease.” The Board notes that this indicates a cerebral disease unrelated to the heart. In a December 2010 VA medical record, the examiner stated that the Veteran does not have any evidence of ischemic heart disease. The examiner noted that a stress echocardiogram showed no regional wall motion abnormalities with ejection fraction of 60 percent. In an April 2012 VA examination, the examiner stated that the Veteran had a diagnosis of implanted cardiac pacemaker. The examiner noted that the Veteran’s heart diagnosis is not ischemic in nature. In a July 2014 private Disability Benefits Questionnaire, the examiner stated that the Veteran had diagnoses of ischemic heart disease dating back to 2006, status-post pacemaker insertion dating back to 2006, and status-post myocardial infarction that was diagnosed June 2014. In a February 2016 addendum opinion, the examiner determined that it was less likely than not that the Veteran’s heart condition was due to his period of service. The examiner, in part, reasoned that the Veteran's medical records do not document ischemic heart disease. The examiner also stated that the Veteran was previously denied service connection for a heart condition. The examiner noted that the July 2014 VA opinion was based off the Veteran’s statement that he had a heart attack in 2006 and was diagnosed with an ischemic heart condition; however, there was no medical evidence of record to corroborate this. In a November 2019 VA examination, the examiner noted that the Veteran has a diagnosis of implanted cardiac pacemaker and left ventricular hypertrophy. The examiner stated that the Veteran’s heart conditions did not qualify within the generally accepted definition of ischemic heart disease. The examiner stated that, after review of the conflicting medical evidence, there was no evidence that the Veteran has been diagnosed by a cardiologist or other specialist with ischemic heart disease. The examiner noted that cardiac catheterization performed in September 2004 indicates normal coronary arteries. The examiner also noted that there are no studies after that which indicate findings of ischemia. The examiner stated that the medical records indicate pacemaker insertion for sick sinus syndrome and Type II second degree atrial ventricular block in 2006. After review of the record, the Board finds that the evidence is insufficient to establish that the Veteran’s heart disability is ischemic, such that presumptive service connection due to exposure to herbicide agents would be warranted. Though the July 2014 private opinion presents a positive diagnosis of ischemia, the private opinion is inconsistent with the Veteran’s medical record. Therefore, the Board finds the opinion inadequate for the purposes of adjudicating the claim. However, the February 2016 and November 2019 VA medical opinions establish that, while the Veteran has a heart disability, the condition falls outside the definition of ischemic based on the Veteran’s history of examination and testing. The examiners used the expertise of a cardiologist and heart specialist as well as the Veteran’s medical history and examination to make this determination. The Board finds the February 2016 and November 2019 VA opinions to be highly probative in nature. As the probative evidence weighs against a finding of ischemic heart disease, presumptive service connection for a heart disability due to exposure to herbicides agents is not warranted. Notwithstanding the provisions relating to presumptive service connection, a Veteran may establish service connection for a disability with proof of actual direct causation. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). The Board notes that the Veteran’s service treatment records are silent on complaint of or treatment for a heart condition during service. Moreover, there is no competent evidence that the Veteran’s nonischemic heart disease is directly related to his presumed in-service herbicide exposure. No treating providers have related the Veteran’s heart condition to his herbicide exposure. The Board has considered the Veteran’s statements linking his current heart condition to his service. While it is in error to categorically reject layperson nexus evidence as incompetent, the Board is allowed to consider the facts of a particular case to determine the layperson’s competence. See Davidson v. Nicholson, 581 F.3d 1313 (Fed. Cir. 2009). In this regard, the Board notes the Veteran is competent to report symptoms experienced in service and since such time. However, the Veteran is not competent to attribute his current condition to any instance of military service or to determine whether his heart condition is ischemic in nature. He has not demonstrated that he is an expert in determining the etiology of heart disabilities and is a layperson in this regard. In conclusion, a preponderance of the evidence is against the claim for service connection for a heart disability on a direct basis or on a presumptive basis as an herbicide-related disease pursuant to 38 C.F.R. §§ 3.307, 3.309. 2. An initial compensable rating for bilateral hearing loss The Veteran contends that his bilateral hearing loss is such that an initial compensable rating 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). In a June 2014 VA examination, the audiologist reported the following puretone thresholds (in decibels): HERTZ 500 1000 2000 3000 4000 RIGHT 15 20 30 40 35 LEFT 15 25 30 35 40 The examiner noted 84 percent word recognition for the right ear and 92 percent word recognition for the left ear. The audiometric findings obtained in June 2014 are consistent with puretone threshold averages of 31 decibels in the right ear with speech discrimination of 84 percent and puretone threshold averages of 33 decibels in the left ear with speech discrimination of 92 percent. These clinical findings correlate to an auditory acuity numeric designation of a Level II hearing impairment in the right ear and a Level I hearing impairment in the left ear. Under 38 C.F.R. § 4.85, Tables VI and VII, these findings warrant the assignment of a noncompensable rating. In an October 2019 VA examination, the audiologist reported the following puretone thresholds (in decibels): HERTZ 500 1000 2000 3000 4000 RIGHT 25 30 35 45 50 LEFT 25 25 30 45 50 The examiner noted 100 percent word recognition for the right ear and 100 percent word recognition for the left ear. The audiometric findings obtained in October 2019 are consistent with puretone threshold averages of 40 decibels in the right ear with speech discrimination of 100 percent and puretone threshold averages of 38 decibels in the left ear with speech discrimination of 100 percent. These clinical findings correlate to an auditory acuity numeric designation of a Level I 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. After review of the evidence, the Board finds the Veteran’s hearing loss most closely approximates to a noncompensable disabling rating throughout the appeals period. The Veteran is competent to report his symptoms and describe the impairment associated with his hearing loss. At his VA examinations, he reported that he was unable to clearly understand words/sounds spoken by others, and unable to distinguish words spoken in crowded rooms or work situations, over the telephone, spoken from a distance, and if he is not looking at the speaker. The Board finds these lay statements to be credible and consistent with the rating 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). REASONS FOR REMAND 1. Entitlement to a TDIU prior to June 26, 2014 is remanded. The Veteran contends that his service-connected disabilities affected his ability to work prior to June 26, 2014. In this case, for the period under consideration from February 26, 2013 to June 26, 2014, the Veteran’s service-connected disabilities include diabetes mellitus, rated as 20 percent disabling; right lower extremity peripheral neuropathy, rated as 10 percent disabling; left lower extremity peripheral neuropathy, rated as 10 percent disabling; tinnitus, rated as 10 percent disabling; and bilateral hearing loss, rated as 0 percent disabling. The Veteran’s compensable disabilities give him a combined rating of 40 percent, and thus, the Veteran does not meet the requirements of 38 C.F.R. § 4.16 (a). However, in the Veteran’s June 2016 VA Form 21-8940 and subsequent August 2016 employment statement, he reported that he was unable to work due, in part, to his service-connected diabetes, peripheral neuropathy, and hearing loss. Employment information submitted by the Veteran reflects that he last worked in 2006. The Board notes that the Veteran met the schedular criteria for TDIU under 38 C.F.R. § 4.16(a) since June 26, 2014 and was awarded a TDIU as of that date. However, evidence suggests that the Veteran’s service-connected disabilities prevented him from obtaining and maintaining employment prior to that date. However, the Board is precluded from granting TDIU on an extraschedular basis in the first instance for the period prior to June 26, 2014. Thus, the Board will refer the Veteran's claim of entitlement to a TDIU to the Director of Compensation Service. The matters are REMANDED for the following action: The AOJ must refer the matter of entitlement to a TDIU to the Director, Compensation Service for a determination as to whether the Veteran is entitled to an assignment of a TDIU prior to June 26, 2014 under the provisions of 38 C.F.R. § 4.16(b). 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.