Citation Nr: 21040552 Decision Date: 07/06/21 Archive Date: 07/06/21 DOCKET NO. 17-01 260 DATE: July 6, 2021 ORDER Entitlement to service connection for candidiasis, to include as due to exposure to herbicide agents, is denied. Entitlement to an initial compensable rating for bilateral hearing loss is denied. REMANDED Entitlement to an initial rating in excess of 10 percent for coronary artery disease (CAD) is remanded. FINDINGS OF FACT 1. The preponderance of the evidence is against finding that the Veteran's candidiasis is related to his active duty service, to include as due to exposure to herbicide agents. 2. Throughout the rating period on appeal, or from October 17, 2013, the Veteran's bilateral hearing loss disability has exhibited no worse than Level II hearing impairment in the right ear and Level I hearing impairment in the left ear. CONCLUSIONS OF LAW 1. [Deny] The criteria for Entitlement to service connection for candidiasis, to include as due to exposure to herbicide agents, have not been met. 2. [Deny] The criteria for Entitlement to an initial compensable rating for bilateral hearing loss have not been met. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service from September 1968 to May 1970. These matters come before the Board of Veterans' Appeals (Board) on appeal from two rating decisions issued by a Department of Veterans Affairs (VA) Regional Office (RO) in August 2016. In one rating decision, the RO, in relevant part, granted service connection for bilateral hearing loss and assigned a noncompensable disability rating, effective from October 17, 2013. In the other rating decision, the RO, in relevant part, granted service connection for coronary artery disease (CAD), with a 10 percent disability rating effective from March 15, 2016, and denied service connection for candidiasis. These matters were before the Board in April 2019, and they were remanded for further evidentiary development. In the April 2019 decision, the Board also assigned an effective date of October 17, 2013, but no earlier, for the Veteran's CAD. 1. Entitlement to service connection for candidiasis, to include as due to exposure to herbicide agents, 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 requires evidence satisfying three criteria: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship (nexus) between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). VA regulations provide that certain diseases associated with exposure to herbicide agents may be presumed to have been incurred in service even if there is no evidence of the disease in service, provided the requirements of 38 C.F.R. § 3.307 (a)(6) are met. 38 C.F.R. § 3.309 (e). A Veteran who, during active service, served in a united that operated in or near the Korean Demilitarized Zone (DMZ) in area in which herbicides are known to have been applied during the period between April 1, 1968 and August 31, 1971, shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to establish that the Veteran was not exposed to any such agent during that service. 38 C.F.R. § 3.307 (a). The last date on which such a Veteran shall be presumed to have been exposed to an herbicide agent shall be the last date on which he or she served in the Republic of Vietnam during the period beginning on January 9, 1962 and ending on May 7, 1975. The term "herbicide agent" means a chemical in an herbicide, including Agent Orange, used in support of the United States and allied military operations in the Republic of Vietnam during the Vietnam era. Further, in certain circumstances, veterans who served in vessels in the inland waterways of Vietnam were exposed to herbicides. Haas v. Peake, 525 F.3d 1168 (Fed. Cir. 2008). A veteran is presumed to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before enrollment and was not aggravated by such service. 38 U.S.C. § 1111; 38 C.F.R. § 3.304. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). The Veteran's VA treatment records reveal that he was diagnosed with candidiasis in August 2005. He asserts that his candidiasis is related to his active duty military service, to include as caused by his exposure to herbicide agents. As a preliminary matter, the Board notes that VA has conceded exposure to herbicide agents based on the Veteran's service in or near the Korean DMZ in 1970. See VA Form 21-0961 dated July 18, 2016. The Veteran underwent a VA skin examination in August 2016. The examiner indicated a diagnosis of candidiasis but did not address its etiology in her medical opinion. In its April 2019 decision, the Board found that the August 2016 examination was inadequate regarding the candidiasis claim because it was based on an incomplete review of the Veteran's medical records and because the examiner's medical opinion did not address whether his candidiasis is related to his service. The Board also remanded the claim of service connection for candidiasis because there was some evidence of additional VA medical records that had not been added to the claims file. Specifically, the Veteran reported receiving treatment at the Philadelphia, Pennsylvania VA Medical Center (VAMC) from about 1971 through 1980 and beginning treatment at the Columbia, South Carolina VAMC in 1997. There were no VA medical records in the claims file indicating treatment at these locations during these periods, and the RO had not documented its efforts to obtain such records. In September 2019, the RO sent a correspondence to the Veteran indicating that his Philadelphia VAMC medical records from 1971 to 1980 could not be found. The RO stated that it contacted the Philadelphia VAMC, which responded that all of the Veteran's treatment records had previously been sent to the RO and no other records were found. In a February 2020 letter, the RO informed the Veteran that treatment records from the Columbia VAMC from January 1997 to May 27, 2005 could not be located. The RO indicated that it contacted the Columbia VAMC, which responded that all of the Veteran's available treatment records had already been uploaded into the VA records system. A subsequent VA examination was conducted in September 2019, wherein the examiner opined that the Veteran's candidiasis is less likely than not related to his active duty service. In support of his opinion, the examiner noted that the Veteran was not diagnosed with candidiasis for many years after his separation from service, and there is no medical literature showing that exposure to herbicide agents causes candidiasis. He indicated that the Veteran reported a history of skin problems during May 1968 entrance examination, but that those reported skin issues are different form his current candidiasis. The May 1968 examiner noted that the Veteran's reported skin issues were tinea versicolor and a rash on the back of the neck, which the September 2019 examiner stated are different from candidiasis. He also opined that there is no clear and unmistakable evidence that his candidiasis preexisted his active duty service, so it was not aggravated beyond its natural progression by his service. After considering all of the relevant evidence of record, the Board finds that the preponderance of the evidence is against finding that the Veteran's candidiasis is related to his active service, to include as caused by exposure to herbicide agents. First, the Board notes that candidiasis is not on the list of diseases that are presumptively related to exposure to herbicide agents. See 38 C.F.R. § 3.309(e). Therefore, presumptive service connection is not warranted at this time. Turning to direct service connection on a nonpresumptive basis, the September 2019 VA examiner stated that exposure to herbicide agents is not known to cause candidiasis, and there is no evidence in the service treatment records showing a diagnosis of, or treatment for, candidiasis during service. Though there is evidence of skin problems that preexisted service, the examiner indicated that those problems were different from his current candidiasis. Because more than 30 years passed between the Veteran's separation from service, and there is no competent medical opinion of record supporting a connection between his candidiasis and his exposure to herbicide agents or any other in-service event, the weight of the evidence is against granting service connection for candidiasis. The examination and opinion are found to be highly probative here, as they involved a full review of the record and the conclusions reached were accompanied by an adequate rationale. It is the Veteran's general evidentiary burden to establish all elements of the claim, including evidence of an incident in service and evidence of a nexus between service and the current disability. 38 U.S.C. § 5107; Fagan v. Shinseki, 573 F.3d 1282, 1286 (Fed. Cir. 2009). In this instance, he has not met the burden of demonstrating a nexus between his candidiasis and his active duty service. Therefore, the requirements for service connection for candidiasis have not been met and the claim must be denied. In denying the claim, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). 2. Entitlement to an initial compensable rating for bilateral hearing loss Disability evaluations are determined by the application of the Schedule for Rating Disabilities (Rating Schedule), which assigns ratings based on the average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Disability ratings are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of life, including employment, by comparing his symptomatology with the criteria set forth in the Rating Schedule. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. In the case of an initial rating, the entire evidentiary record from the time of a veteran's claim for service connection to the present is of importance in determining the proper evaluation of disability, and staged ratings are to be considered in order to reflect the changing level of severity of a disability during this period. Fenderson v. West, 12 Vet. App. 119 (1999). However, where entitlement to compensation has already been established and increase in disability rating is at issue, present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Additionally, the Board must consider whether the disability has undergone varying and distinct levels of severity while the claim has been pending and provide staged ratings during those periods. Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). 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 the higher rating. 38 C.F.R. §§ 4.7, 4.21. 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 hearing loss is rated under Diagnostic Code 6100. Under Diagnostic Code 6100, evaluations of bilateral defective hearing range from noncompensable to 100 percent based on organic impairments of hearing acuity as measured by the results of controlled speech discrimination tests (Maryland CNC) together with the average hearing threshold level measured by pure tone audiometry tests in the frequencies of 1000, 2000, 3000, and 4000 cycles per second (Hertz). To evaluate the degree of disability from bilateral service-connected defective hearing, the Rating Schedule establishes 11 auditory hearing acuity levels designated from Level I for essentially normal hearing acuity through Level XI for profound deafness. 38 C.F.R. § 4.85, Tables VI and VII, Diagnostic Code 6100. Disability ratings for hearing loss are derived from a mechanical application of the Rating Schedule to the numeric designations resulting from audiometric testing. See Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). An exceptional pattern of hearing impairment occurs when the pure tone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) is 55 decibels or more. In that situation, 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. 38 C.F.R. § 4.86(a). Further, when the average pure tone 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). Table VIA will be used when the examiner certifies that the use of the Maryland CNC is not appropriate because of language difficulties, inconsistent speech discrimination scores, etc., or when indicated under the provisions of 30 C.F.R. § 4.86. 38 C.F.R. § 4.85(c). A VA audiological examination was conducted in August 2016. The pure tone thresholds for the Veteran's right and left ears were as follows: HERTZ 1000 2000 3000 4000 RIGHT 30 30 30 40 LEFT 25 25 25 40 The pure tone average was 33 (32.5) decibels in the right ear and 29 (28.75) decibels in the left ear. Speech recognition scores were 90 percent in the right ear and 92 percent in the left ear. This results in a Level II hearing impairment in the right ear and a Level I hearing impairment in the left ear. Applying Table VII, this equates to a noncompensable rating. A VA audiological examination was conducted in September 2019. The pure tone thresholds for the Veteran's right and left ears were as follows: HERTZ 1000 2000 3000 4000 RIGHT 15 20 30 45 LEFT 20 25 35 40 The pure tone average was 28 (27.5) decibels in the right ear and 30 decibels in the left ear. Speech recognition scores were 94 percent bilaterally. This results in a Level I hearing impairment bilaterally. Applying Table VII, this equates to a noncompensable rating. A review of the claims file does not reveal the results of any other audiological examinations during the rating period on appeal, or from October 17, 2013 to the present. The Board finds that an initial compensable rating is not warranted for the Veteran's bilateral hearing loss. The Board acknowledges the impact that the Veteran's hearing loss has had on his daily activities and VA's obligation to resolve all reasonable doubt in the Veteran's favor. However, the evidence does not show that he was entitled to a rating in excess of 90 percent prior to February 6, 2015. Given that the assignment of disability ratings for hearing impairment are derived by a mechanical application of the rating schedule to the numeric designations assigned after audiometry evaluations are rendered, there is no doubt as to the proper evaluation to assign. See Lendenmann, 3 Vet. App. at 349; 38 C.F.R. § 4.85, Tables VI, VIA, and VII, Diagnostic Code 6100. REASONS FOR REMAND 1. Entitlement to an initial rating in excess of 10 percent for coronary artery disease (CAD) is remanded. Throughout the rating period on appeal, or from October 17, 2013, the Veteran has been diagnosed with coronary artery disease (CAD). He was assigned an initial disability rating of 10 percent under 38 C.F.R. § 4.104, Diagnostic Code 7005. The Board notes that the Veteran's non-VA treatment records contain evidence that he experienced a myocardial infarction in 2015, and the September 2019 VA examiner confirmed this in a May 2020 addendum opinion. In a May 2020 rating decision, the RO assigned a temporary 100 percent rating for the Veteran's CAD for the period from August 25, 2015 through July 31, 2015, with the initial 10 percent rating being reinstated thereafter. This temporary rating constitutes a full grant of the benefits sought on appeal for the period from August 25, 2015 to July 31, 2015; therefore, that period is no longer within the Board's jurisdiction. See Grantham v. Brown, 114 F.3d 1156, 1158-59 (Fed. Cir. 1997). The Veteran's private treatment records show that an echocardiogram was conducted in April 2015 that revealed dilatation of the right atrial cavity, right ventricular cavity, and aortic root, and left ventricular dysfunction with a left ventricular ejection fraction (LVEF) of 45 percent. A VA cardiac examination was conducted in November 2015. The examiner indicated that the Veteran's CAD requires continuous medication. He found no evidence of congestive heart failure, cardiac hypertrophy, or cardiac dilatation. He stated that both EKG and echocardiogram test results were clinically normal and that the Veteran had a LVEF of 55 percent. The examiner conducted an interview based metabolic equivalent (MET) test and indicated that the Veteran experiences fatigue with more than 7 to 10 METs. Because of the discrepancies regarding the severity of the Veteran's CAD between the private April 2015 echocardiogram results (indicating cardiac dilatation and a LVEF of 45 percent) and the November 2015 echocardiogram findings (indicating no evidence of cardiac dilatation and a LVEF of 55 percent), the Board remanded this issue for a new VA examination in its April 2019 decision. Specifically, the Board directed the examiner to explain the reason for the apparent discrepancies regarding the Veteran's CAD symptoms and to opine as to which symptoms are most representative of his level of cardiac functioning. A new VA cardiac examination was conducted in September 2019. The examiner noted that the Veteran continues to require medication to control his CAD. He found no evidence of congestive heart failure. The examination report indicates that an echocardiogram was performed and revealed no evidence of cardiac hypertrophy or cardiac dilatation. The Veteran's LVEF was between 55 and 65 percent. During his interview based METs test, the Veteran denied experiencing symptoms attributable to a cardiac condition with any level of physical activity. In explaining the apparent discrepancy between the April 2015 and November 2015 echocardiogram results, the examiner stated that findings between examinations can vary based on the locations and providers conducting the examinations. He indicated that updated echocardiogram results provide current findings. The Board finds that the September 2019 medical opinion is inadequate because the examiner did not provide an opinion as to whether the results of the April 2015 or November 2015 echocardiogram better approximate the Veteran's disability level throughout the rating period on appeal. While he indicated that the echocardiogram conducted in conjunction with the September 2019 examination represents the current level of the Veteran's CAD disability, he did not indicate whether those findings apply retrospectively. He also gave a brief explanation as to why the April and November 2015 echocardiogram results may be different, but he did not state whether one finding is more reliable than the other. An opinion as to the accuracy and reliability of these findings is crucial to the determination of this claim because these two echocardiograms were conducted within months of each other and the difference between the two findings equates to the difference between a 10 percent rating and a 60 percent rating. Therefore, an addendum opinion is necessary to obtain a more detailed discussion of the April and November 2015 echocardiogram results and an opinion as to which findings more accurately approximate the Veteran's CAD symptoms throughout the rating period on appeal. The matter is REMANDED for the following actions: 1. Obtain and associate with the claims file the Veteran's updated VA treatment records, from May 2020 to the present. 2. After completing #1, obtain an addendum medical opinion from the VA examiner who conducted the Veteran's September 2019 cardiac examination or, if he is unavailable then another similarly qualified examiner may respond instead. The entire claims folder, including a copy of this remand, must be made available for review by the examiner and such review should be noted in the medical opinion. A new VA examination is only necessary if deemed so by the examiner. The examiner is asked to respond to the following: (a.) Please provide an opinion as to how far back (e.g., one year, two years, etc.) the findings of the September 2019 echocardiogram would apply. (b.) The claims file shows that echocardiograms were performed in April 2015 and November 2015. There is a wide discrepancy between the results of the two tests. The private April 2015 echocardiogram results indicate cardiac dilatation and a LVEF of 45 percent, while the November 2015 echocardiogram findings indicate no evidence of cardiac dilatation and a LVEF of 55 percent. Please explain the reason for this difference, including a discussion of whether one echocardiogram result is believed more accurate and/or reliable than the other, and indicate which echocardiogram best approximates the severity of the Veteran's CAD during the period prior to the September 2019 VA examination. The examiner must provide a comprehensive rationale for each opinion provided. The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports are to be considered in formulating any opinion. If any opinion cannot be given without resorting to speculation, the examiner should explain why and state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), the record (additional facts are required), or the examiner does not have the knowledge or training. As appropriate, the AOJ should conduct additional development or supplement the record. Eric S. Leboff Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Pratt 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.