Citation Nr: 21023567 Decision Date: 04/21/21 Archive Date: 04/21/21 DOCKET NO. 19-37 539 DATE: April 21, 2021 ORDER The petition to reopen a previously denied claim for entitlement to service connection for tinnitus is denied. The petition to reopen a previously denied claim for entitlement to service connection for hearing loss disability is denied. Entitlement to an effective date earlier than January 5, 2017 for a grant of service connection for ischemic heart disease with coronary artery disease is denied. Entitlement to a rating in excess of 60 percent for ischemic heart disease with coronary artery disease is denied. FINDINGS OF FACT 1. An unappealed February 2015 rating decision denied service connection for bilateral hearing loss and tinnitus; new and material evidence was not received prior to expiration of the appeal periods; subsequently received evidence is cumulative or redundant and does not relate to an unestablished fact necessary to reopen the claims. 2. The Veteran’s claim for entitlement to service connection for ischemic heart disease with coronary artery disease was received by VA on January 5, 2017, and the Veteran has not presented any evidence of an earlier unadjudicated pending claim. 3. Metabolic equivalent (MET) testing shows the Veteran did not develop dyspnea, fatigue, angina, dizziness, or syncope at a workload of 3 METs or less, and the evidence did not show chronic congestive heart failure or left ventricular dysfunction with an ejection fraction of less than 30 percent. CONCLUSIONS OF LAW 1. The February 2015 rating decision denying the claim for service connection for tinnitus is final; and new and material evidence has not been received to reopen the claim. 38 U.S.C. §§ 5103, 5103A, 5108, 7105(c); 38 C.F.R. §§ 3.156(a), 20.1103. 2. The February 2015 rating decision denying the claim for service connection for bilateral hearing loss is final; and new and material evidence has not been received to reopen the claim. 38 U.S.C. §§ 5103, 5103A, 5108, 7105(c); 38 C.F.R. §§ 3.156(a), 20.1103. 3. The criteria for entitlement to an effective date earlier than January 5, 2017 for a grant of service connection for ischemic heart disease with coronary artery disease have not been met. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. 4. The criteria for entitlement to a rating in excess of 60 percent for ischemic heart disease with coronary artery disease have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.100, 4.104, Diagnostic Code 7005. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Navy from January 1965 to October 1968. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a March 2017 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). 1. Whether new and material evidence has been submitted to reopen a previously denied claim for entitlement to service connection for tinnitus. 2. Whether new and material evidence has been submitted to reopen a previously denied claim for entitlement to service connection for hearing loss disability. Issues 1-2: The Veteran contends that his hearing loss and tinnitus are related to noise exposure in service, stating that both eardrums were damaged by mortar fire. A claim that has been denied in an unappealed RO decision may not thereafter be reopened and allowed. 38 U.S.C. § 7105 (c). The exception to this rule is 38 U.S.C. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. Regardless of whether the RO found that new and material evidence had been submitted to reopen a claim for service connection, it is well established that the Board must determine on its own whether new and material evidence has been submitted to reopen a claim. See Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). New evidence is defined as existing evidence not previously submitted to agency decision makers. Material evidence means evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence previously of record and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). The regulation is designed to be consistent with 38 C.F.R. § 3.159(c)(4), which “does not require new and material evidence as to each previously unproven element of a claim.” Shade v. Shinseki, 24 Vet. App. 110 (2010). In establishing whether new and material evidence has been submitted, the credibility of evidence is presumed unless the evidence is inherently incredible or consists of statements that are beyond the competence of the person or persons making them. See Justus v. Principi, 3 Vet. App. 510, 513 (1992). Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). In general, service connection requires competent and credible evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the current disability. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Here, the Board concludes that the February 2015 rating decision denying the claims for service connection for tinnitus and bilateral hearing loss is final, and that new and material evidence has not been received to reopen the claims. 38 U.S.C. §§ 5103, 5103A, 5108, 7105(c); 38 C.F.R. §§ 3.156(a), 20.1103. A February 2015 rating decision denied service connection for tinnitus and bilateral hearing loss because these conditions were not incurred in or caused by service. VA notified the Veteran of this decision in a February 2015 letter and explained how to appeal. VA received no appeal or new and material evidence prior to expiration of the appeal period. Therefore, this decision became final. At the time of the February 2015 rating decision, the evidence included the Veteran’s service treatment records (STRs), VA outpatient treatment records, and a November 2014 VA examination. STRs reflect that the Veteran had normal hearing at separation from service. The November 2014 VA examiner was unable to determine whether the Veteran’s current bilateral hearing loss and tinnitus were related to service without resorting to speculation, noting that there was no evidence of a hearing loss disability in service and that the Veteran had noise exposure both during and after service. Evidentiary submissions received since the February 2015 rating decision include VA outpatient treatment records, which do not tend to cure any prior evidentiary defect. Since February 2015, the Veteran has simply reiterated past assertions that his current hearing loss and tinnitus are related noise exposure in service. The evidentiary submissions received since the prior final disallowance to do not tend to show that the Veteran’s hearing loss or tinnitus began in service, manifested within on year after service discharge, or is otherwise etiologically related to his in-service noise exposure. Hence, a prior evidentiary defect is not cured by any recent evidentiary submissions. Therefore, the Board finds that new and material evidence has not been submitted to reopen the claims for service connection for tinnitus or bilateral hearing loss. Accordingly, the petition to reopen is denied. The benefit of the doubt doctrine is not applicable. Annoni v. Brown, 5 Vet. App. 463, 467 (1993). The Board notes that the Veteran may file another claim under the modernized appeal system that became effective in February 2019, which has eliminated the requirement for “new and material evidence” and only requires “new and relevant evidence” (a significantly lower threshold) to readjudicate the matter. 3. Entitlement to an effective date earlier than January 5, 2017 for a grant of service connection for ischemic heart disease with coronary artery disease is denied. The Veteran seeks an effective date earlier than January 5, 2017 for a grant of service connection for ischemic heart disease with coronary artery disease. He has not provided any specific contentions this matter. See NOD (January 2018); VA Form 9 (December 2019). The Board concludes that, although the Veteran had heart disease prior to January 5, 2017, VA did not receive a claim for compensation prior to that date and that the effective date of the award of compensation based on an original claim is the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400(b)(2). Generally, the effective date of compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase will be on the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 U.S.C.§ 5110(a); 38 C.F.R. § 3.400. The effective date based upon a grant of direct service connection will be the day following service from active service or date entitlement arose if claim is received within 1 year after separation from service; or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400(b)(2). Prior to March 24, 2015, when VA amended its rules as to what constitutes a claim, a claim was a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit. 38 U.S.C. § 101(30); 38 C.F.R. § 3.1(p). The date of receipt shall be the date on which a claim, information or evidence was received by VA. 38 U.S.C. § 101(30); 38 C.F.R. § 3.1(r). Any communication or action, indicating intent to apply for one or more benefits under the laws administered by VA, from a claimant, his or her duly authorized representative, a Member of Congress, or some person acting as next friend of a claimant who is not sui juris may be considered an informal claim. Such informal claims must identify the benefit sought. 38 C.F.R. § 3.155. In this case, VA received the Veteran’s claim of entitlement to service connection for heart disease on January 5, 2017, more than one year after the Veteran’s separation from active service. See VA Form 21-526EZ (January 5, 2017). The RO subsequently granted service connection for ischemic heart disease with coronary artery disease effective from the date of the claim’s receipt by VA—January 5, 2017. Having carefully reviewed the evidence of record, the Board finds no basis upon which to assign an effective date earlier than January 5, 2017, for the grant of service connection. VA did not receive a claim within 1 year after separation from service and there is no communication prior to January 5, 2017, that could be reasonably construed as a claim of entitlement to disability benefits. VA is not required to anticipate any potential claim for a particular benefit where no intention to raise it was expressed and the mere presence of medical evidence that a veteran suffers from a disability does not establish intent on the part of the veteran to seek service connection for that disability. See Brannon v. West, 12 Vet. App. 32, 34-35 (1998); see also Brokowski v. Shinseki, 23 Vet. App. 79, 86-87 (2009). Although the Board accepts that the Veteran had disability prior to the date of receipt of his application for VA compensation in January 2017, the law dictates that the effective date of service connection is the date of the receipt of the claim or the date entitlement arose, whichever is later. See 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. Therefore, the effective date for the grant of service connection is appropriately January 5, 2017, for ischemic heart disease with coronary artery disease -and no earlier. The Board has reviewed the Veteran's claim file and cannot find any submission to VA dated prior to January 5, 2017, that could reasonably be construed as a claim for service connection for heart disability. Further, because VA had not previously denied compensation for the same covered herbicide disease in a decision issued between September 25, 1985 and May 3, 1989, the provisions of 38 C.F.R. § 3.816(c) are not for application. Accordingly, the earlier effective date claim is denied. There is no doubt to resolve. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C. § 5107(b). Evaluations Disability evaluations are determined by the application of a schedule of ratings which is based on the average impairment of earning capacity. 38 U.S.C.§ 1155; 38 C.F.R., Part 4. An evaluation of the level of disability present also includes consideration of the functional impairment of the veteran’s ability to engage in ordinary activities, including employment. 38 C.F.R. § 4.10. 38 C.F.R. § 4.7 provides that, where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. In deciding the veteran’s increased evaluation claim, the Board has considered the determinations in Fenderson v. West, 12 Vet. App. 119 (1999) and Hart v. Mansfield, 22 Vet. App. 505 (2007), and whether the veteran is entitled to an increased evaluation for separate periods based on the facts found during the appeal period. 4. Entitlement to a rating in excess of 60 percent for ischemic heart disease with coronary artery disease. The Veteran seeks a higher rating for his ischemic heart disease. He has not provided any specific contentions beyond vague assertions that the medical evidence supports his claim. The Veteran ischemic heart disease is rated pursuant to 38 C.F.R. § 4.104, Diagnostic Code (DC) 7005, for arteriosclerotic heart disease (coronary artery disease). Under DC 7005, a 10 percent rating is warranted where a workload of greater than 7 METs but not greater than 10 METs results in dyspnea, fatigue, angina, dizziness, or syncope, or; continuous medication required. A 30 percent rating is warranted where a workload of greater than 5 METs but not greater than 7 METs results in dyspnea, fatigue, angina, dizziness, or syncope, or; evidence of cardiac hypertrophy or dilation on electrocardiogram, echocardiogram, or X-ray. A 60 percent rating 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; 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. 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. 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. For the purposes of a 60 percent evaluation, the rating criteria do not require a separate showing of left ventricular dysfunction in addition to an ejection fraction of 30 to 50 percent. Otero-Castro v. Principi, 16 Vet. App. 375, 382 (2002). Additionally, the phrase “30 to 50 percent” means 30 percent through 50 percent. Id. at 380. For the purposes of a 100 percent evaluation, the rating criteria do not require a separate showing of left ventricular dysfunction in addition to an ejection fraction of less than 30 percent. See id. at 382. The Veteran was afforded a VA examination in January 2019. The Veteran complained of generalized weakness to the extremities and dizziness with movement. He also reported frequent falls. He was diagnosed with ischemic heart disease and coronary artery disease, with a history or myocardial infarction in October 2016. He had percutaneous coronary intervention (angioplasty) in October 2018. His heart condition requires continuous medication to control. The Veteran has no history of either acute or chronic congestive heart failure. He has no arrythmia or heart valve condition. There is evidence of cardiac hypertrophy with left ventricular ejection fracture of 60 percent. An interview based METs test determined that the Veteran experienced dizziness at greater than 3 but less than 5 METs. VA outpatient treatment records were also reviewed; however, they did not show chronic congestive heart failure; 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 at any time during the period on appeal. Considering all relevant evidence of record, the Board finds there was not any episode of acute congestive heart failure in the past year or left ventricular dysfunction with an ejection fraction ranging from 30 percent to 50 percent throughout the appeal period. However, a workload of greater than 3 METs but not greater than 5 METs results in dyspnea, fatigue, angina, dizziness, or syncope. These findings correspond to the criteria for a 60 percent rating under DC 7005. A higher 100 percent rating is not warranted unless there is chronic congestive heart failure, or; 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. Here, the competent medical evidence of record shows that the Veteran has not had chronic congestive heart failure, or; 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. Thus, the Board concludes that the Veteran’s heart disability did not meet the criteria for the next higher rating, 100 percent, at any time during the period on appeal. The evidence in this case is not so evenly balanced so as to allow application of the benefit-of- the-doubt rule. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3. C.A. SKOW Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E.D. Anderson, 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.