Citation Nr: 21028817 Decision Date: 05/12/21 Archive Date: 05/12/21 DOCKET NO. 16-12 362A DATE: May 12, 2021 ORDER Entitlement to an initial compensable rating for bilateral hearing loss is denied. Entitlement to an initial disability rating in excess of 10 percent for ischemic heart disease is denied. Entitlement to a disability rating in excess of 30 percent for ischemic heart disease from February 15, 2019 is denied. Entitlement to a disability rating in excess of 10 percent for ischemic heart disease from February 9, 2020 is denied. FINDINGS OF FACT 1. The Veteran's bilateral hearing loss manifested as Level IV in the right ear and as Level I or Level II in the left ear throughout the rating period on appeal. 2. Prior to February 15, 2019, the Veteran's ischemic heart disease did not manifest as a workload of greater than 5 metabolic equivalents (METs) but not greater than 7 METs resulting in dyspnea, fatigue, angina, dizziness, or syncope, nor as cardiac hypertrophy or dilatation shown on electrocardiogram, echocardiogram, or x-ray. 3. From February 15, 2019, the Veteran's ischemic heart disease did not manifest as more than one episode of acute congestive heart failure in the past year, as a workload of greater than 3 METs but not greater than 5 METs resulting in dyspnea, fatigue, angina, dizziness, or syncope, or as left ventricular dysfunction with an ejection fraction of 30 to 50 percent. 4. From February 9, 2020, the Veteran's ischemic heart disease did not manifest as a workload of greater than 5 metabolic equivalents (METs) but not greater than 7 METs resulting in dyspnea, fatigue, angina, dizziness, or syncope, nor as cardiac hypertrophy or dilatation shown on electrocardiogram, echocardiogram, or x-ray. CONCLUSIONS OF LAW 1. The criteria for entitlement to an initial compensable disability rating for bilateral hearing loss have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.385, 4.85, Diagnostic Code 6100. 2. The criteria for entitlement to an initial disability rating in excess of 10 percent for ischemic heart disease have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.104, Diagnostic Code 7005. 3. The criteria for entitlement to an increased disability rating in excess of 30 percent for ischemic heart disease from February 15, 2019 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.104, Diagnostic Code 7005. 4. The criteria for entitlement to an increased disability rating in excess of 10 percent for ischemic heart disease from February 9, 2020 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.104, Diagnostic Code 7005. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 1967 to December 1969. This case comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision of September 2013 issued by the Department of Veterans Affairs (VA) Regional Office (RO) in New York, New York. The Board remanded this case for further development in October 2018 and the RO issued a supplemental statement of the case (SSOC) in May 2020. The Board briefly notes that the RO increased the Veteran's disability rating for ischemic heart disease to 30 percent for the period between February 15, 2019 and February 9, 2020 in a rating decision of May 2020. Accordingly, the Board has presented the staged ratings created by this decision as described above. Increased Ratings Disability evaluations are determined by comparing a Veteran's present symptomatology with criteria set forth in VA's Schedule for Rating Disabilities, which is based on average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings apply under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for a higher rating. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. The Veteran's entire history is reviewed when making disability rating decisions. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). However, where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Although a rating specialist is directed to review the recorded history of a disability in order to make a more accurate evaluation, the regulations do not give past medical reports precedence over current findings. See 38 C.F.R. § 4.2; Francisco v. Brown, 7 Vet. App. 55 (1994). When the appeal is from the initial rating assigned with the grant for service connection, "staged" ratings (for periods when varying degrees of disability are shown) may be assigned based on facts found. Fenderson v. West, 12 Vet. App. 119 (1999). 1. Entitlement to an initial compensable rating for bilateral hearing loss. The applicable rating criteria provide that the Veteran's hearing is measured using pure tone threshold averages, which are calculated using "the sum of the pure tone thresholds at 1000, 2000, 3000, and 4000 Hertz, divided by four." 38 C.F.R. § 4.85(d). These averages are combined with the Veteran's speech discrimination scores to create numeric designations for each ear. See 38 C.F.R. § 4.85(h), Table VI; see also § 4.85(a). These numeric designations are then combined to produce a disability rating. Id. at Table VII. The Veteran has undergone VA examinations on this issue in August 2013, February 2019, and February 2020. The August 2013 VA examiner found the following pure tone decibel thresholds: HERTZ 1000 2000 3000 4000 RIGHT 35 40 65 65 LEFT 30 35 65 65 This examiner calculated the Veteran's pure tone threshold averages as 51 for the right ear and 49 for the left ear. This examination also found speech discrimination scores of 76 percent for the right ear and 84 percent for the left ear. See August 2013 VA Examination Report at 5. The February 2019 VA examiner found the following pure tone decibel thresholds: HERTZ 1000 2000 3000 4000 RIGHT 25 50 66 65 LEFT 30 50 65 65 This examiner calculated the Veteran's pure tone threshold averages as 51.5 for the right ear and 52.5 for the left ear. This examination also found speech discrimination scores of 72 percent for the right ear and 92 percent for the left ear. See February 2019 VA Examination Report at 3. Finally, the February 2020 VA examiner found the following pure tone decibel thresholds: HERTZ 1000 2000 3000 4000 RIGHT 35 55 65 70 LEFT CNT CNT CNT CNT The Board notes that in this context, "CNT" stands for "could not test," indicating that examination results for the Veteran's left ear were unreliable. See February 2020 VA Examination Report (Hearing Loss) at 2 (providing examiner's statement that "Veteran's responses to behavioral audiometry testing were unreliable and invalid for AS"); see also "Common Otolaryngology Abbreviations," University of Iowa Health Care (accessed via https://medicine.uiowa.edu/iowaprotocols/common-otolaryngology-abbreviations) (providing that "AS" in this context indicates "left ear"). The February 2020 VA examiner likewise found that speech discrimination scores could not be assessed. See February 2020 VA Examination Report at 2. Accordingly, the Board finds that the February 2020 VA examination report is of only minimal utility in adjudicating this claim. The Veteran's resulting numeric designations are therefore IV (right ear) and II (left ear) for the August 2013 examination and IV (right ear) and I (left ear) for the February 2019 examination. See 38 C.F.R. § 4.85(h), Table VI. The combination of IV and II, as well as the combination of IV and I, results in a noncompensable rating. See id. at Table VII. Certain patterns of hearing loss may be rated solely on the basis of pure tone thresholds in other words, without the use of speech discrimination scores. See 38 C.F.R. § 4.86 (providing that hearing impairment is considered "exceptional" where pure tone thresholds are 55 decibels or more at each of the four specified frequencies, or where the threshold is 30 decibels or more at 1000 Hertz and 70 decibels or more at 2000 Hertz). However, none of the Veteran's examination results qualify for consideration on this basis. While the Veteran's VA and private medical treatment records reflect his treatment for bilateral hearing loss, they do not provide examination results indicating greater severity than that found by the VA examinations of record. See April 2017 Medical Treatment Records at 14 (noting "stable results from [August] 2013 evaluation" during October 2016 treatment); see also March 2019 Medical Treatment Records at 60 (providing November 2016 hearing aid orientation). The Board briefly notes that a private audio examination of May 2012, which is beyond the rating period on appeal, reflects results which are less severe than the August 2013 VA examiner's findings. See December 2019 Medical Treatment Records at 17; cf August 2013 VA Examination Report at 5. The assignment of an initial compensable disability rating for the Veteran's bilateral hearing loss is therefore not warranted. 38 C.F.R. § 4.85. The Board has considered the doctrine of reasonable doubt but concludes that it is not applicable because the balance of the evidence is against the Veteran's claim. 38 U.S.C. § 5107 2. Entitlement to an initial disability rating in excess of 10 percent for ischemic heart disease. The Veteran's ischemic heart disease is initially rated as 10 percent disabling under Diagnostic Code (DC) 7005. See January 2021 Rating Codesheet. The applicable rating criteria provide that a disability rating in excess of 10 percent for this condition is not assigned unless a workload of greater than 5 METs but not greater than 7 METs results in dyspnea, fatigue, angina, dizziness, or syncope, or unless there is evidence of cardiac hypertrophy or dilatation on electrocardiogram, echocardiogram, or x-ray. See 38 C.F.R. § 4.104, DC 7005. The Board notes that MET, in this context, is defined as "the energy cost of standing quietly at rest and represents an oxygen uptake of 3.5 milliliters per kilogram of body weight per minute." See id. at Note (2). In its October 2018 remand, the Board noted conflicting evidence of record as to whether the Veteran's heart condition manifested as cardiac hypertrophy during this portion of the rating period. See October 2018 Board Decision at 6-7; see also March 2016 VA Form 21-0960A-1 at 3 (providing private disability benefits questionnaire (DBQ) of February 2013 observing "evidence of cardiac hypertrophy or dilatation"); cf. August 2013 VA Examination Report at 15 (providing VA examiner's opinion that "records I have for review, including echo[cardiogram] and stress [test] of [February 2012] do not confirm that"). The Board therefore remanded this issue for an updated VA examination which would both describe the current status of the Veteran's heart condition and address the conflicting evidence in the record. See id. at 8-9. This updated examination was provided in February 2019. The February 2019 VA examiner reviewed the evidence of record and noted that an echocardiogram of February 2012, on which the private DBQ's finding of cardiac hypertrophy or dilatation was based, was both internally inconsistent as well as inconsistent with subsequent echocardiograms of 2014 and 2019. See March 2019 VA Medical Opinion at 8. Because the February 2019 VA examiner explains her analysis of the available evidence and notes the internal contradictions of the February 2012 echocardiogram, the Board assigns her opinion on this point greater probative weight than the February 2013 DBQ, which does not explain its finding of cardiac hypertrophy or dilatation other than by citation to testing results. See March 2016 VA Form 21-0960A-1 at 3. "[Most] of the probative value of a medical opinion comes from its reasoning. Neither a VA medical examination report nor a private medical opinion is entitled to any weight... if it contains only data and conclusions." Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Neither the February 2013 DBQ nor the August 2013 VA examination found that a workload of greater than 5 METs but not greater than 7 METs resulted in dyspnea, fatigue, angina, dizziness, or syncope. See March 2016 VA Form 21-0960A-1 at 3; see also August 2013 VA Examination Report at 14. As discussed above, the Board finds the August 2013 VA examiner's finding that the Veteran's heart condition did not manifest as cardiac hypertrophy or dilatation carries greater probative weight in light of the February 2019 VA examiner's addendum opinion. See August 2013 VA Examination Report at 15. The Veteran's medical treatment records reflect continued treatment for his heart condition, but do not otherwise support the inference that the rating criteria described above were satisfied during this portion of the rating period. See March 2016 Medical Treatment Records at 11 (providing treatment note of April 2014 describing the Veteran as "clinically asymptomatic" and exercising 3 times a week); see also April 2017 Medical Treatment Records at 20 (likewise noting asymptomatic presentation in September 2016). The assignment of an initial disability rating in excess of 10 percent for the Veteran's ischemic heart disease is therefore not warranted. 38 C.F.R. § 4.104, DC 7005. The Board has considered the doctrine of reasonable doubt but finds that it is not applicable because the balance of the evidence is against the Veteran's claim. 38 U.S.C. § 5107. 3. Entitlement to an increased disability rating in excess of 30 percent for ischemic heart disease from February 15, 2019. The applicable rating criteria provide that a disability rating in excess of 30 percent is not assigned for this condition unless there is more than one episode of acute congestive heart failure in the past year, if a workload of greater than 3 METs but not greater than 5 METs results in dyspnea, fatigue, angina, dizziness, or syncope, or if there is left ventricular dysfunction with an ejection fraction of 30 to 50 percent. See 38 C.F.R. § 4.104, DC 7005. As noted above, the Veteran underwent a VA examination in February 2019. This examination found that a workload of 5 to 7 METs produced dyspnea and fatigue. See March 2019 VA Examination Report at 14. However, the examiner found no episodes of congestive heart failure and found a left ventricular ejection fraction of 59%. See id. at 9; see also id. at 13. The Board has not otherwise found evidence in the record supporting the inference that a disability rating in excess of 30 percent for ischemic heart disease is warranted for this portion of the rating period. 38 C.F.R. § 4.104, DC 7005. The Board has considered the doctrine of reasonable doubt but finds that it is not applicable because the balance of the evidence is against the Veteran's claim. 38 U.S.C. § 5107. 4. Entitlement to an increased disability rating in excess of 10 percent for ischemic heart disease from February 9, 2020. As noted above, the rating criteria provide that a disability rating in excess of 10 percent for this condition is not assigned unless a workload of greater than 5 METs but not greater than 7 METs results in dyspnea, fatigue, angina, dizziness, or syncope, or unless there is evidence of cardiac hypertrophy or dilatation on electrocardiogram, echocardiogram, or x-ray. See 38 C.F.R. § 4.104, DC 7005. A follow-up VA examination of February 2020 found that a workload of between 7 and 10 METs resulted in dyspnea and angina. See February 2020 VA Examination Report at 5. This examination likewise found no evidence of cardiac hypertrophy or dilatation. See id. at 4-5. The Board has not otherwise found evidence in the record to support the inference that a disability rating in excess of 10 percent is warranted for this portion of the rating period. 38 C.F.R. § 4.104, DC 7005. The Board has considered the doctrine of reasonable doubt but finds that it is not applicable because the balance of the evidence is against the Veteran's claim. 38 U.S.C. § 5107. JONATHAN B. KRAMER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Blore, 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.