Citation Nr: 21030307 Decision Date: 05/18/21 Archive Date: 05/18/21 DOCKET NO. 18-21 409 DATE: May 18, 2021 ORDER Entitlement to service connection for a left ear hearing loss is denied. Entitlement to a disability rating greater than 60 percent from December 15, 2017 for coronary artery disease (CAD) is denied. FINDINGS OF FACT 1. The Veteran was exposed to noise in service and has a current diagnosis of left ear hearing loss; however the weight of the evidence is against a finding that the Veteran's left ear hearing loss disability is related to his active duty service, to include exposure to acoustic trauma. 2. From December 15, 2017, the Veteran's CAD has not resulted in chronic congestive heart failure, workload of 3 metabolic equivalents (METs) or less or left ventricular dysfunction with an ejection fraction of less than 30 percent. CONCLUSIONS OF LAW 1. The criteria to establish service connection for left ear hearing loss are not met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385 2. The criteria for a rating higher than 60 percent for service-connected CAD are not met. 38 U.S.C. § 1155; 38 C.F.R. § 4.104 REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from February 1967 to February 1970. This appeal comes to the Board of Veterans' Appeals (Board) from a May 2017, June 2017, and July 2019 rating decisions, issued by the Department of Veterans Affairs (VA) Regional Office (RO). In March 2020, the Veteran appeared before the undersigned Veterans' Law Judge in a Board hearing. A copy of the hearing transcript is of record. This matter was previously remanded by the Board in June 2020 for further development to include obtaining adequate/new VA examinations regarding the Veteran's service connection claim for left ear hearing loss and claim for increased rating greater than 60 percent for a heart disability. The matter has returned to the Board for an appellate review. 1. Entitlement to service connection for a left ear hearing loss Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303 (a). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303 (d). Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009). Hearing loss is considered a "chronic" disease under 38 C.F.R. § 3.309 (a). Therefore, the presumptive service connection provisions under 38 C.F.R. § 3.303 (b) for service connection based on "chronic" symptoms in service and "continuous" symptoms since service are applicable. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). For the showing of chronic diseases in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. With chronic disease as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributable to intercurrent causes. If a condition noted during service is not shown to be chronic, then generally, a showing of continuity of symptoms after service is required for service connection. 38 C.F.R. § 3.303 (b). If not manifest during service, where a veteran served continuously for 90 days or more during a period of war, or during peacetime service after December 31, 1946, and the "chronic" disease became manifest to a degree of 10 percent within 1 year from date of termination of such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 C.F.R. § 3.307. The Board must analyze the credibility and probative value of the evidence, account for the evidence that it finds persuasive or unpersuasive and provide the reasons for its rejection of any material evidence favorable to the claimant. Kahana v. Shinseki, 24 Vet. App. 428, 433 (2011). This includes weighing the credibility and probative value of lay evidence against the remaining evidence of record. See King v. Shinseki, 700 F.3d 1339 (Fed. Cir. 2012); Kahana, 24 Vet. App. at 433-34. A claimant bears the evidentiary burden to establish all elements of a service connection claim, including the nexus requirement. Fagan v. Shinseki, 573 F.3d 1282, 1287 (Fed. Cir. 2009). In making its ultimate determination, the Board must give an appellant the benefit of the doubt on any issue material to the claim when there is an approximate balance of positive and negative evidence. Id. at 1287 (quoting 38 U.S.C. § 5107 (b)). The Veteran in this case asserts that his left ear hearing loss is related to the acoustic trauma he sustained in service and/or the in-service otitis media disability. For VA compensation purposes, impaired hearing is considered a disability if: (1) the auditory threshold for any of the frequencies of 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; (2) the auditory thresholds for at least three of these frequencies are 26 decibels or greater; or (3) speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. The Veteran is currently diagnosed with a sensorineural hearing loss disability in the left ear. See April 2017 VA audiology examination report. The Veteran's military occupational specialty (MOS) was Transportation Management Coordinator which VA determined had a low probability of noise exposure. Nonetheless, the Veteran has asserted that as his MOS duties required frequent trips to the Air Force Base to pick up information, and to check on cargo being shipped out during which he was exposed to aircraft noise from C130's, C123's, and F-4 Phantoms when they took off from the air strip. See March 2020 Hearing Transcript. Accordingly, the Board resolves all doubt in the Veteran's favor in finding that he sustained acoustic trauma in service. The Veteran has also asserted that he complained of and was treated for left ear infections in service and that ever since, he has had some sort of hearing loss, which he started noticing when he got out of service. See March 2020 Hearing Transcript. The Service-treatment records (STRs) indicate that the Veteran was treated for otitis media in April, May, and September of 1968. See STRs. Nevertheless, based on the discussion below, the Board finds that service connection for a left ear hearing loss is not warranted as the preponderance of the evidence is against a finding that the Veteran's current hearing loss disability is etiologically related to his in-service noise exposure and/or ear infection. The Veteran's STRs contained audiometric results in March 1965 (induction examination) and February 1967 (separation examination), both of which showed no hearing loss for VA purposes. The STRs are silent to any complaints, treatment, or diagnosis for hearing loss. At his separation examination, the Veteran marked "yes" for ear trouble. A notation by the medical was as follows: "usual childhood disease-ear trouble-running ears, age 22. No complications." See STRs. The Veteran was afforded a VA audiology examination in April 2017, at which time, left ear hearing loss for VA purposes was confirmed. The examiner reviewed the Veteran's claims file and history of in-service noise exposure. The speech discrimination test revealed a speech recognition ability of 88 percent in the left ear and 94 percent in the right ear. On the audiological evaluation, the Veteran's puretone thresholds, in decibels, were as follows: Frequency 500 1000 2000 3000 4000 Average Right Ear 5 10 20 50 55 34 Left Ear 20 25 35 65 70 49 The examiner noted that the Veteran's 1967 induction and 1970 separation examination reports showed normal hearing, bilaterally, with no significant change indicated in either ear when comparing the results. The examiner opined that it is less likely as not (less than 50 percent probability) that the Veteran's hearing impairment was caused by or a result of an event in military service. The examiner's rationale was that the records showed no hearing loss or significant changes in hearing thresholds greater than normal measurement variability during active duty military service. The examiner continued that there was no record of complaint or treatment of the claimed hearing loss in service records. The examiner noted that the Institute of Medicine (2006) panel has concluded that based on their current understanding of auditory physiology a prolonged delay in the onset of noise-induced hearing loss was "unlikely". The examiner concluded that based on the objective evidence (audiograms), there is no evidence on which to conclude that the Veteran's current hearing loss was caused by or a result of the Veteran's military service, including noise exposure. See April 2017 C&P Examination. During an initial hearing evaluation in June 2017, the Veteran reported that he had a recent hearing test for a service connection claim he filled for hearing loss and that he wanted to order hearing aids. Onset of hearing was noted as more than 5 years. The Veteran also reported that he had a very painful ear infection during active duty that cleared after he was treated at an Air Force Base. He denied any other ear infections since then. It was noted that hearing loss will negatively impact communication in adverse settings (background noise, reverberation, etc.). His diagnosis was noted as mild to moderate-severe sensorineural hearing loss (left greater than right). See CAPRI. In April 2020, a medical opinion was obtained without the benefit of an audiogram due to the Covid-19 pandemic. The examiner relied on the April 2017 audiogram and opined that the Veteran's current hearing loss disability was less likely than not (less than 50 percent probability) related to military service to include due to military noise exposure. The examiner's rationale was that there were no permanent significant changes in hearing thresholds during military service. The examiner referenced a September 22, 2005 Institute of Medicine's landmark study [Noise & Military Service: Implications for Hearing loss and Tinnitus], which noted that based on the anatomical and physiological data available on the recovery process following noise exposure, it is unlikely that such delayed effects occur. See April 2020 C&P Examination. In June 2020, the Board determined that the April 2017 and April 2020 VA examinations were inadequate. In October 2020 a new examination determining the nature and etiology of the Veteran's left ear hearing loss to include conceded acoustic trauma, in relation to in-service complaints and diagnosis of otitis media was obtained. The October 2020 VA examination confirmed a diagnosis of left ear hearing loss for VA purposes. The examiner conducted an in-person examination, reviewed the Veteran's claims file and the history of in-service noise exposure and ear infections. The speech discrimination test revealed a speech recognition ability of 92 percent in the left ear and 94 percent in the right ear. On the audiological evaluation, the Veteran's puretone thresholds, in decibels, were as follows: Frequency 500Hz 1000Hz 2000Hz 3000Hz 4000Hz Average Right Ear 5 10 15 55 60 35 Left ear 15 15 25 60 70 43 The examiner opined that it is less likely as not (less than 50 percent probability) that the Veteran's hearing impairment was caused by or a result of an event in military service. The examiner proffered the following rationale: "Based on review of records in VBMS, there were no significant permanent changes in hearing thresholds during military service. Based on the anatomical and physiological data available on the recovery process following noise exposure, it is unlikely that delayed effects occur. Reference: 22 September 2005 Institute of Medicine's landmark study: Noise & Military Service: Implications for Hearing loss and Tinnitus. Based on the objective evidence (audiograms), there is no evidence on which to conclude that the Veteran's current hearing loss was caused by or a result of the Veteran's military service, including noise exposure." See October 2020 C&P Examination. An addendum was obtained in December 2020. The examiner opined that in most cases of otitis media, once treated and/or the healing process occurs, there are no lingering effects. The examiner continued that hearing was found to be well within normal limits at the time of separation and there was no evidence of otitis media at that time, therefore the current hearing loss is not caused by or a result of Veterans in service otitis media. See December 2020 C&P Examination. During the Board hearing, the Veteran testified that he started experiencing hearing difficulty shortly after service and that he took audio exams for renewal of CDL license but that no physician has told him his hearing loss is related to service. See March 2020 Hearing Transcript. The records reveal that the Veteran has not provided evidence of any private audio reports or authorized the VA to obtain them. The Board finds no objective evidence of the Veteran having either "chronic" symptoms of hearing loss in service or "continuous" symptoms since service, under 38 C.F.R. § 3.303 (b). Additionally, the evidence does not show that hearing loss manifested to a compensable (i.e., at least 10 percent) degree within one year of service separation, under the provisions of 38 C.F.R. § 3.309 (a). Contrary to what the Veteran attempts to argue, the records indicate that the Veteran initially sought medical evaluation many years after separation from service. The time frame between separation from service and the first complaint of hearing difficulty is one factor that weighs against a finding of service incurrence and continuity, but this is not the only factor relied upon in this decision. The mere absence of evidence does not necessarily equate to unfavorable evidence. Indeed, there are a line of precedent cases supporting this proposition. See, e.g., Horn v. Shinseki, 25 Vet. App. 231, 239 (2012); Buczynski v. Shinseki, 24 Vet. App. 221, 224 (2011); See Buchanan v. Nicholson, 451 F.3d 1336 (Fed. Cir. 2006) (the lack of contemporaneous medical records is one fact the Board can consider and weigh against the other evidence, although the lack of such medical records does not, in and of itself, render the lay evidence not credible). The Federal Circuit Court also has held however that, while the absence of contemporaneous records does not, in and of itself, render lay testimony not credible, the Board may weigh the absence of contemporaneous records when assessing the credibility of lay evidence. See Buchanan, 451 F.3d at 1336 ("Nor do we hold that the Board cannot weigh the absence of contemporaneous medical evidence against the lay evidence of record."). Moreover, although the Board cannot reject a claimant's statements merely because he is an interested party, the claimant's interest may affect the credibility of his testimony when considered in light of other factors. See Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991). Furthermore, while the Veteran is competent to report symptoms of a disability, he is not shown to have the specialized medical training required to render a complex medical opinion as to the etiology of his diagnosed sensorineural hearing loss. See Layno v. Brown, 6 Vet. App. 465, 470 (1994); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The Veteran has not provided any other competent or credible medical evidence to establish a nexus between his disability and his service. Thus, the Board finds the Veteran's statements as to onset and continuity of hearing loss symptomatology less probative. In summary, the Board assigns high probative value to the October/December 2020 medical opinions, which are demonstrably fully informed by the pertinent factual premises of the case and provides fully articulated opinions with reasoned analysis explaining why the Veteran's left ear hearing loss was less likely than not related to his military service. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 303-304 (2008) (holding that it is the factually accurate, fully articulated, sound reasoning for the conclusion that contributes to the probative value of a medical opinion). Accordingly, the Board finds that the competent and credible evidence weighs against finding that the Veteran's left ear hearing loss was causally or etiologically related to service to include his noise exposure and the in-service diagnosis of otitis media; therefore, the appeal is denied, and the benefit-of-the-doubt doctrine does not apply. 2. Entitlement to a disability rating greater than 60 percent from December 15, 2017 for coronary artery disease (CAD) The Veteran's CAD has been rated at 10 percent from February 2016; 100 percent from May 15, 2017; and 60 percent from September 1, 2017. He asserts entitlement to the next-highest and maximum rating of 100 percent. Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes (DCs). 38 U.S.C. § 1155; 38 C.F.R. § 4.1. When there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. "Staged" ratings are appropriate for any rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119 (1999). The Veteran's heart disorder is rated under Diagnostic Code (DC) 7005 of 38 C.F.R. § 4.104. The rating formula under DC 7005 incorporates objective measurements of the level of physical activity, expressed numerically in METs, at which cardiac symptoms develop. MET (one metabolic equivalent) 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. See 38 C.F.R. § 4.104, Note 2. Ratings of 10, 30, 60, and 100 percent are authorized under DC 7005. The Board will limit its analysis to whether a 100 percent rating, the only rating higher than the assigned 60 percent rating has been warranted for the appeal period from December 15, 2017. 38 C.F.R. § 3.400. A 100 percent rating is warranted under DC 7005 for chronic congestive heart failure, 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. 38 C.F.R. § 4.104. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt will be granted to the claimant. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on the merits, the preponderance of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). The evidence in this matter consists of lay assertions, VA and private treatment records, and VA compensation examination reports dated in December 2017 and October 2020. This evidence demonstrates that the criteria for a 100 percent rating for CAD, from December 15, 2017 has not been met. The Veteran was afforded a VA examination in December 2017. The Veteran reported that he sometimes feels lightheaded after climbing steps. The examiner estimated that the Veteran has at least 3-5 and sometimes 5-7 METs energy capacity given his reported scenario. His echocardiogram measured left ventricular ejection fraction (LVEF) of 31 percent. The examiner indicated that the Veteran's congestive heart failure (CHF) was not chronic. See December 2017 C&P Examination. In a February 2018 Follow-up note, from the Veteran's private care noted that the Veteran returns in NSR and an improved ejection fraction of 35-40 percent. In December 2018, the Veteran had a follow-up examination. It was noted that he was doing well since his last visit. The Veteran denied chest pain, SOB, palpitations, edema, dizziness, PND, orthopnea or syncope. The Veteran had a normal physical exam and was told to follow up in 6 months with echo. In June 2019, the Veteran had a follow up echo from New Mexico Heart Institute. It was noted that the Veteran had an ejection fraction of 50 percent. No significant valvular abnormalities were seen. See Medical Treatment Record - Non-Government Facility. At the October 2020 VA examination, the Veteran reported that for the past three months he had SOB with dizziness upon showering, climbing stairs, and performing light yard work. The Veteran stated that he has had one episode of syncope in the past and that he has had no chest pressure or angina. The Veteran further reported that he takes atorvastatin for his condition; that in the past year he has had no hospitalization, congestive heart failure or surgeries for his condition. The examiner stated that a June 2019 echocardiogram measured left ventricular ejection fraction (LVEF) of 50 percent. The examiner estimated a cardiac workload of 3 to 5 metabolic equivalents (METs), found to be consistent with activities such as light yard work (weeding), mowing lawn (power mower), brisk walking (4 mph). See October 2020 C&P Examination. From December 15, 2017, none of the above evidence indicates the presence of chronic congestive heart failure, a workload restricted to 3 METs or less, or left ventricular dysfunction with an ejection fraction of less than 30 percent. 38 C.F.R. § 4.104, Diagnostic Code 7005. In sum, the rating criteria for the assignment of a 100 percent rating for CAD under DC 7005 of 38 C.F.R. § 4.104 are not met. The lay evidence in support of the claim has been considered, but it is not probative on the question of whether the criteria for a 100 percent rating under DC 7005 is met from December 15, 2017. A lay person is competent to report observable symptoms such as dyspnea, fatigue, angina, dizziness, or syncope. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). However, a lay person such as the Veteran is not competent to determine medical issues such as diagnosis and etiology, particularly issues involving internal pathologies such as heart disease and its effects. The degree to which CAD affects the heart is a medical issue. Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007). On the complex question before the Board, involving determinations regarding congestive heart failure, measuring METs, and ejection fraction scores, the Veteran's lay assertions are outweighed by the medical evidence. As the preponderance of the evidence is against the claim of entitlement to a rating greater than 60 percent for the Veteran's CAD beginning December 15, 2017, the benefit-of-the-doubt doctrine does not apply, and the claim must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102, 4.3. DAVID L. WIGHT Veterans Law Judge Board of Veterans' Appeals Attorney for the Board N. M. Rogers, 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.