Citation Nr: 21030930 Decision Date: 05/20/21 Archive Date: 05/20/21 DOCKET NO. 16-14 555 DATE: May 20, 2021 ORDER Entitlement to service connection for cardiomyopathy (heart disease), to include as secondary to service-connected hypertension and posttraumatic stress disorder (PTSD), is granted. New and material evidence having been submitted, the claim of service connection for hearing loss of the right ear is reopened. Entitlement to service connection for hearing loss of the right ear is denied. REMANDED Entitlement to a disability rating in excess of 10 percent for hypertension is remanded. Entitlement to a disability rating in excess of 50 percent for PTSD is remanded. Entitlement to a compensable rating for left ear hearing loss is remanded. Entitlement to a disability rating in excess of 10 percent for right lower extremity muscle condition is remanded. Entitlement to a disability rating in excess of 10 percent for left lower extremity muscle condition is remanded. FINDINGS OF FACT 1. The probative evidence of record is at least in relative equipoise that the Veteran's heart disease is proximately due to or the result of his service-connected hypertension and PTSD. 2. The October 2005 rating decision denying service connection for hearing loss of the right ear was not appealed and became final. 3. Evidence received since the October 2005 rating decision relates to unestablished facts necessary to substantiate the claims of entitlement to service connection for right ear hearing loss. 4. A hearing loss disability of the Veteran's right ear has not been shown during the pendency of the Veteran's appeal. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for heart disease, to include as secondary to service-connected hypertension and PTSD, have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. 2. Evidence received since the October 2005 rating decision is new and material, and the claim of entitlement to service connection for hearing loss of the right ear, is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). 3. The criteria for entitlement to service connection for hearing loss of the right ear have not been met. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. §§ 3.102, 3.303, 3.385. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served in the United States Army on active duty from February 2003 to May 2004. The issues come before the Board of Veterans' Appeals (Board) on appeal from July 2015 and January 2016 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a hearing before the undersigned Veterans Law Judge in January 2021. A transcript of the hearing has been included with the record. Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may be warranted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that disease was incurred in service. 38 C.F.R. § 3.303(d). As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Service connection on a secondary basis requires evidence sufficient to show: (1) that a current disability exists; and (2) that the current disability was either caused or aggravated by a service-connected disability. 38 C.F.R. § 3.310. 1. Entitlement to service connection for heart disease, to include as secondary to service-connected hypertension and PTSD The Veteran contends that he suffers from heart disease secondary to his service-connected hypertension and PTSD. A VA cardiology treatment record from March 2012 noted the Veteran was diagnosed with nonischemic cardiomyopathy. Further, the Board acknowledges the Veteran is service-connected for his hypertension and PTSD. Thus, the issue of the Veteran's claim for service connection turns on whether the evidence of record demonstrates the Veteran's heart disease was either caused or aggravated by the Veteran's service-connected hypertension or PTSD. Here, the Board concludes the evidence of record supports such a finding. The Veteran underwent a VA examination to address his heart disease in June 2015. The VA examiner confirmed the Veteran's diagnosis of cardiomyopathy, and noted the Veteran required continuous medication to control his heart condition. The VA examination provided the medical opinion that the Veteran's heart disease was not proximately due to or the result of hypertension. The examiner noted that he was not aware of any general medical consensus or medical literature that would provide scientific support to the Veteran's claim that his heart disease was the result of the Veteran's hypertension. Notably, the VA examiner did not provide a medical opinion as to aggravation between hypertension and the Veteran's heart disease. The Veteran testified at the January 2021 Board hearing that he recently received treatment for his heart disease and was diagnosed with congestive heart failure. The Veteran stated that he continued to take medications for his heart condition. The Veteran noted that he gets easily winded and dizzy on exertion. In February 2021, the Veteran submitted a private physician's January 2021 medical opinion regarding the Veteran's heart disease. The private examiner noted the Veteran was treated for an episode of congestive heart failure in March 2012 which led to the diagnosis of nonischemic cardiomyopathy. The private examiner noted the Veteran suffered a second episode of congestive heart failure in November 2014. The private physician noted the Veteran's diagnoses of PTSD and hypertension and cited to medical literature noting that patients with PTSD have a higher risk of hypertension and heart disease, commonly compounded by non-compliance with medical and psychological therapy. The examiner noted the combination of the Veteran's PTSD and hypertension led the Veteran to develop left ventricular hypertrophy, noted in the record in July 2016. The private physician concluded that the Veteran's non-ischemic cardiomyopathy was a direct consequence of the Veteran's service-connected hypertensive vascular disease, complicated by his long-term symptoms of PTSD. The Board finds that the criteria for service connection for heart disease, to include nonischemic cardiomyopathy, as secondary to the Veteran's PTSD and hypertension, have been met. The record shows that the Veteran has a current diagnosis of heart disease, and there is competent evidence that the current disability was either caused or aggravated by a service-connected disability. Here, the Board finds the January 2021 private medical opinion establishes that the Veteran's heart disease is proximately due to the Veteran's service-connected hypertension and aggravated by his symptoms of PTSD. See 38 C.F.R. § 3.310. The private physician provided an opinion based on a thorough review of the Veteran's medical treatment records, and supported the opinion with citations to medical literature. Thus, the Board finds the January 2021 private examination to be the most probative evidence of record documenting the nature and etiology of the Veteran's heart disease. See Prejean v. West, 13 Vet. App. 444 (2000). While the June 2014 examination provided a negative nexus opinion regarding whether the Veteran's hypertension proximately caused the Veteran's diagnosis of nonischemic cardiomyopathy, the Board finds that the evidence of record is at least in relative equipoise on this matter. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, by law, the Board must resolve all reasonable doubt in favor of the Veteran. See 38 U.S.C. §§ 1154(b); 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Thus, the benefit of the doubt must be resolved in favor of the Veteran and entitlement to service connection for the Veteran's heart disease as secondary to his service-connected hypertension and PTSD is warranted. 2. New and material evidence having been submitted, the claim of service connection for hearing loss of the right ear is reopened. 3. Entitlement to service connection for hearing loss of the right ear The Veteran contends that he suffers from hearing loss in his right ear related to his active duty service. A claimant may reopen a finally adjudicated claim by submitting new and material evidence. 38 U.S.C. §§ 5108, 7103, 7104, 7105; 38 C.F.R. §§ 3.156, 20.1100. New evidence means existing evidence not previously submitted to agency decision makers. Material evidence means existing 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 does not need to address each previously unproven element of a claim in order to justify reopening a finally adjudicated claim. Shade v. Shinseki, 24 Vet. App. 110, 120 (2010). The Veteran's claim of service connection for his right ear hearing loss was previously denied in the October 2005 rating decision, as the evidence of record demonstrated that the Veteran's right ear audiometric findings did not meet the criteria for a grant of service connection for hearing loss. The Veteran did not appeal, and the decision became final. In the January 2016 rating decision on appeal, the RO found no new and material evidence was submitted and did not reopen the Veteran's claim. The Veteran initiated an appeal, and the RO implicitly reopened the Veteran's claim in an April 2017 statement of the case, but denied the claim on the merits. The Veteran timely perfected his appeal. In a February 2007 VA audiology consultation, the Veteran reported bilateral hearing loss. The Veteran reported that he experienced a head cold in service, which settled and never resolved in his ears. Audiometric results revealed mild low frequency hearing loss in the right ear. Additionally, in a May 2007 VA treatment record, the Veteran complained of right ear pain and bilateral hearing loss. This evidence relates to an unestablished fact, the existence of a causal connection between the Veteran's claimed hearing disability and an in-service injury, necessary to substantiate the Veteran's claim. 38 C.F.R. § 3.156(a). The Board finds the low threshold for reopening a claim of service connection has been met. See Shade, 24 Vet. App. at 120. The Veteran's claim of service connection for hearing loss of the right ear is reopened. For the purposes of applying the laws administered by VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. As indicated above, the Veteran's February 2007 VA audio consultation noted the Veteran presented mild hearing loss in his right ear. Further VA audiology records reported no significant decrease in the Veteran's hearing. The Veteran's January 2011 VA audiology report noted the hearing sensitivity as within normal limits and the Veteran's speech recognition scores were normal. The VA audiologist noted the Veteran showed a significant improvement in hearing. The RO provided a VA hearing examination in November 2015. The Veteran reported having difficulty communicating with people. The Veteran's audiological evaluation for his right ear, with puretone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 25 15 10 25 20 Speech audiometry revealed speech recognition ability of 100 percent in the right ear. The record demonstrates that the Veteran continued to receive treatment for his service-connected left ear disability; however, VA records note the Veteran's right ear hearing was within normal limits. The Veteran reported in his VA audiology note in October 2020 that he felt his right ear was hearing well. The Veteran testified in the January 2021 Board hearing that he did not experience any issues with his right ear. The existence of a current disability is the cornerstone of a claim for VA disability compensation. 38 U.S.C. § 1110; see Degmetich v. Brown, 104 F. 3d 1328, 1332 (1997). Here, the VA right ear hearing examination's findings are not sufficient to establish a current hearing loss disability during the period on appeal for VA purposes. 38 C.F.R. § 3.385. Although the record shows the Veteran displayed mild hearing loss in February 2007, there is no evidence that it met the criteria for a hearing loss disability for VA purposes. Further, the Veteran's later VA treatment records showed a significant improvement in the Veteran's hearing. During the period on appeal, the evidence of record demonstrated the Veteran's right ear hearing loss to be within normal limits. In the absence of proof of a current disability, there can be no valid claim. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Without competent evidence of a diagnosis of a right ear hearing loss disability under 38 C.F.R. § 3.385, the Board must deny the Veteran's claim. Thus, the preponderance of the evidence is against the claim, and the benefit-of-the-doubt doctrine does not apply. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND 1. Entitlement to a disability rating in excess of 10 percent for hypertension is remanded. 2. Entitlement to a disability rating in excess of 50 percent for PTSD is remanded. 3. Entitlement to a compensable rating for left ear hearing loss is remanded. 4. Entitlement to a disability rating in excess of 10 percent for right lower extremity muscle condition is remanded. 5. Entitlement to a disability rating in excess of 10 percent for left lower extremity muscle condition is remanded. The Veteran contends that he has experienced worsening symptoms associated with his service-connected hypertension, PTSD, left ear hearing loss, and bilateral lower extremity muscle disabilities. The Board notes the evidence of record is absent of any recent medical records relating to the Veteran's service-connected disabilities that are sufficient for VA rating purposes. The record contains a June 2015 VA examination addressing the Veteran's hypertension, a November 2015 VA examination addressing the Veteran's psychiatric disability, a November 2015 VA audiology examination, and a VA examination regarding the Veteran's muscle disability in January 2016. The Board acknowledges that the Veteran has testified to his worsened symptoms. However, since there are no recent medical records related to his claimed service-connected disabilities, the Board finds that current VA examinations are necessary to fairly adjudicate the claims. Allday v. Brown, 7 Vet. App. 517 (1995) (where the record does not adequately reveal current state of disability, fulfillment of duty to assist requires a contemporaneous medical examination, particularly if there is no additional medical evidence that adequately addresses the level of impairment of the disability since previous examination); Snuffer v. Gober, 10 Vet. App. 400 (1997). The matters are REMANDED for the following action: 1. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of the Veteran's service-connected hypertension. The examination may be conducted via telehealth or similar service during the social distancing restrictions of the COVID-19 pandemic. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran's disability under the rating criteria. 2. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of the Veteran's service-connected PTSD. The examination may be conducted via telehealth or similar service during the social distancing restrictions of the COVID-19 pandemic. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran's disability under the rating criteria. 3. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of the Veteran's service-connected left ear hearing loss. The examination may be conducted via telehealth or similar service during the social distancing restrictions of the COVID-19 pandemic. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran's disability under the rating criteria. 4. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of the Veteran's service-connected bilateral lower extremity muscle disabilities. The examination may be conducted via telehealth or similar service during the social distancing restrictions of the COVID-19 pandemic. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran's disability under the rating criteria. 5. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary for the above claimed disabilities, he or she should clearly explain why that is so. The examiner must provide comprehensive reports including a clearly stated rationale for any opinions offered and conclusions reached, citing the objective medical findings leading to the conclusions. In this regard, the Board emphasizes that the Veteran is competent to report his symptoms and history, and such statements by the Veteran regarding symptomatology and medical history must be specifically acknowledged. JENNIFER HWA Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A.V. Bona, 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.