Citation Nr: 23042012 Decision Date: 08/01/23 Archive Date: 08/01/23 DOCKET NO. 16-58 178 DATE: August 1, 2023 ORDER Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD) and depressive disorder is granted. Entitlement to a rating in excess of 60 percent for coronary artery disease (CAD) is denied. Entitlement to a compensable rating for bilateral hearing loss is denied. REMANDED Entitlement to service connection for a low back disability is remanded. Entitlement to service connection for liver cancer with liver transplant is remanded. Entitlement to service connection for hypertension is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. It is just as likely as not the Veteran's acquired psychiatric disorder, including depressive disorder onset during his active military service or is attributable to his service. 2. The Veteran's CAD did not result in chronic congestive heart failure (CHF), a workload of 3 metabolic equivalents of task (METs) or less resulting in dyspnea, fatigue, angina, dizziness, or syncope, or left ventricular dysfunction with an ejection fraction of less than 30 percent. 3. Throughout the appeal period, at most, the Veteran had Level IV hearing loss in his right ear and Level I in his left ear. CONCLUSIONS OF LAW 1. Resolving all reasonable doubt in the Veteran's favor, the criteria are met for entitlement to service connection for an acquired psychiatric disorder, depressive disorder. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5107; 38 C.F.R. §§ 3.303, 3.303, 3.309. 2. The criteria are not met for a rating higher than 60 percent for the Veteran's CAD. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.100, 4.104, Diagnostic Code (DC/Code) 7005. 3. The criteria are not met for a compensable rating for bilateral hearing loss. 38 U.S.C. §§ 1155, 5107, 38 C.F.R. §§ 4.85, 4.86 Diagnostic Code (Code) 6100. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1966 to May 1970. Unfortunately, the Veteran died in November 2019. The appellant is his surviving spouse. She appealed to this Board of Veterans' Appeals (Board) from a rating decision of a Department of Veterans Affairs (VA) Regional Office (RO), which is the Agency of Original Jurisdiction (AOJ). The Board notes that the Appellant was scheduled for a hearing in May 2023. However, she failed to appear for her hearing and did not submit a request to reschedule. Thus, due to the Appellant's no show, the hearing is considered withdrawn. See 38 C.F.R. § 20.704(d). Service connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). 1. Entitlement to an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD) and depressive disorder Prior to his death, the Veteran filed a claim of entitlement to service connection for posttraumatic stress disorder (PTSD), specifically. The Board sees, however, that he has been diagnosed with and has sought treatment in the past for other acquired psychiatric disorders. The Board therefore finds that, pursuant to Clemons v. Shinseki, his claim for mental illness is more accurately characterized as for an acquired psychiatric disorder, inclusive of PTSD and these other diagnosed disorders. 23 Vet. App. 1 (2009). The Veteran attributed his psychiatric disorder to his especially traumatic experiences ("stressors") in Vietnam. His service personnel records show that he was awarded a Combat Action Ribbon. Therefore, the presence of an in-service stressor is conceded. Thus, resolution of this appeal turns instead on whether the Veteran had PTSD or an another acquired psychiatric disability as a result or consequence. See Watson v. Brown, 4 Vet. App. 309, 314(1993) ("A determination of service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or a disease incurred in service."). The Board concludes that, when resolving all reasonable doubt in his favor, the Veteran's acquired psychiatric disorder, albeit not PTSD, per se, but instead depressive disorder, incepted during his active military service and continued during the many years following his service. See Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009). On March 2014 VA examination, the examiner diagnosed depressive disorder. That said, the examiner noted that the Veteran's claimed stressors were related to combat experience and his fear of hostile military or terrorist activity. The examiner concluded the Veteran's symptoms did not meet the criteria for a diagnosis of PTSD. When considering the post-service diagnoses of depressive disorder, as well as the consistent (therefore credible) statements regarding suffering from symptoms of this disability related to and since his service in Vietnam, the Board is resolving all reasonable doubt in his favor and granting service connection for depressive disorder. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Increased Rating Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities (Rating Schedule), which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. When evaluating the severity of a disability, it is essential the disability is considered in the context of its entire recorded history. 38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where entitlement to compensation already has been established and an increase in the disability rating is at issue, the present level of disability is of primary importance. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). But if the factual findings show distinct time periods when the service-connected disability exhibits symptoms that would warrant different ratings, then separate ratings may be assigned for separate periods of time based on the facts found. This practice is known as "staged" ratings and is employed for initial or established ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). If the disability more closely approximates the criteria for the higher of two ratings, the higher rating will be assigned; otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. In general, it is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. 2. Entitlement to a rating in excess of 60 percent for CAD The Veteran asserted that his CAD was more severe than contemplated by his 60 percent rating. A higher 100 percent rating is warranted for CAD resulting in CHF, or; 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. (One MET is the energy cost of standing quietly at rest and represents an oxygen update of 3.5 millimeters per kilogram of body weight per minute.) On February 2014 VA heart conditions examination, it was noted that the Veteran did not have congestive heart failure. The Veteran's interview based METs test was greater than 5 to 7, with symptoms of fatigue and dyspnea, which is consistent with activities such as golfing (without cart), mowing lawn (push mower), heavy yard work (digging). On April 2016 VA heart conditions examination, it was noted that the Veteran did not have congestive heart failure. The Veteran's interview based METs test was greater than 3 to 5, with symptoms of fatigue and dyspnea. The evidence supports that the Veteran's METs level was consistently above that required for a 100 percent rating. The evidence is also against a finding of chronic CHF or left ventricular dysfunction with an ejection fraction of less than 30 percent. For these reasons and bases, an increased rating is not warranted. And, as the weight of the evidence is against this claim, the benefit of the doubt rule is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 4.3, 4.7; Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). 3. Entitlement to a compensable rating for bilateral hearing loss Ratings for hearing loss disability are derived from Table VII of 38 C.F.R. § 4.85 by a mechanical application of the Rating Schedule to numeric designations assigned after audiometric evaluations are performed. Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). The numeric designations correspond to eleven auditory acuity levels, indicated by Roman numerals, where Level I denote essentially normal acuity and Level XI denotes profound deafness. The assignment of the appropriate numeric level is based on the results of controlled speech discrimination tests in combination with average hearing threshold. The average threshold is obtained from puretone audiometric tests in the frequencies of 1000, 2000, 3000, and 4000 Hertz. 38 C.F.R. § 4.85. Rating specialists use either Table VI or VIA of 38 C.F.R. § 4.85 to determine the correct Roman numeral designation. Table VIA is used when speech discrimination tests are inappropriate due to language difficulties, inconsistent speech discrimination scores, etc., or where there is an exceptional pattern of hearing loss (as defined in 38 C.F.R. § 4.86). One such pattern occurs when puretone thresholds at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hz) is 55 decibels or more. Another occurs when the puretone threshold at 1000 Hertz is 30 decibels or less and the puretone threshold at 2000 Hertz is 70 decibels or more. 38 C.F.R. § 4.86. On February 2014 VA examination, audiometry, puretone thresholds were: HERTZ 500 1000 2000 3000 4000 RIGHT 50 55 60 60 65 LEFT 35 30 30 25 35 The right ear puretone threshold average was 60 decibels, and the left ear puretone threshold average was 30 decibels. Speech discrimination by Maryland CNC word list was 98 percent in each ear. Applying the results to Table VI, the findings yield a numeric designation of Level II in the right ear and Level I in the left ear. Entering the resulting bilateral numeric designation of Level II for the right ear and Level I for the left ear to 38 C.F.R. § 4.85, Table VII, equates to a noncompensable (0 percent) disability rating under DC 6100. An exceptional pattern of hearing impairment under 38 C.F.R. § 4.86 was shown in the right ear. But applying the results to Table VIa yields a Level IV designation in the right ear, a higher 10 percent rating is not warranted. On June 2016 VA examination, audiometry, puretone thresholds were: HERTZ 500 1000 2000 3000 4000 RIGHT 30 35 35 40 40 LEFT 20 20 35 35 65 The right ear puretone threshold average was 39 decibels, and the left ear puretone threshold average was 38 decibels. Speech discrimination by Maryland CNC word list was 96 percent in the right ear and 94 percent in the left ear. Applying the results to Table VI, the findings yield a numeric designation of Level I in the right ear and Level I in the left ear. Entering the resulting bilateral numeric designation of Level I for the right ear and Level I for the left ear to 38 C.F.R. § 4.85, Table VII, equates to a noncompensable (0 percent) disability rating under DC 6100. Based on the foregoing, the Board finds that a compensable rating is not warranted for any period on appeal. The VA examination results do not support a higher rating. The Board acknowledges the Veteran's statements with regard to his hearing acuity. The Board does not dispute that the Veteran had some abnormal hearing acuity. However, the rating criteria for hearing loss contemplate the functional effects of decreased hearing and difficulty understanding speech in an everyday work environment, as these are precisely the effects that VA's audiometric tests are designed to measure. When "hearing loss results in an inability to hear or understand speech or to hear other sounds in various contexts, those effects are contemplated by the scheduler rating criteria." See Doucette v. Shulkin, 28 Vet. App. 366 (2017). In sum, the Board finds that an increased rating is not warranted. The Board has considered the doctrine of giving the benefit of the doubt to the appellant, under 38 U.S.C. § 5107 and 38 C.F.R. §§ 3.102, 4.3, but does not find that the evidence is of such approximate balance as to warrant its application. Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). REASONS FOR REMAND 1. Entitlement to service connection for a low back disability is remanded. The Veteran asserted that his back disability onset during his active-duty service. The February 2014 VA examination reflects a diagnosis of lumbar spondylosis and degenerative disc disease. However, the examiner opined that it is less likely than not that the Veteran's low back disability is related to his military service. The rationale was that there were no low back symptoms in-service and no evidence of continuity of care. However, the Board finds the opinion is inadequate for rating purposes because it lacks sufficient rationale. The examiner's rationale was based on the absence of diagnosis, treatment, or symptoms in the Veteran's STRs. The examiner also failed to consider the Veteran's reports of continuity of symptoms since service. Recent precedent cases of the Court (CAVC) have continued to conclude that a VA examination is inadequate where the examiner does not consider the Veteran's lay contentions and recounted history of his claimed disability, also if the opinion relies exclusively on the absence of indication of the disability during his service by way of documentation in his STRs. Miller v. Wilkie, 32 Vet. App. 249 (2020). 2. Entitlement to service connection for hypertension is remanded. The Veteran served in Vietnam during the Vietnam War Era, so it is presumed that he was exposed to herbicides (including especially the dioxin in Agent Orange) while there. And, while hypertension is not currently on the list of diseases in 38 C.F.R. § 3.309(e) that are presumed to be due to exposure to herbicides in Vietnam, during the course of this appeal The National Academies of Sciences, Engineering, and Medicine (NASEM), in the Veterans and Agent Orange Update: Update 11 (2018) (VAO Update), acknowledged "sufficient evidence of an association" between exposure to herbicide agents and hypertension (upgraded from the previous finding of a "limited or suggestive" relationship). The Board consequently is obtaining an advisory medical opinion considering this concession. 3. Entitlement to service connection for liver cancer with liver transplant is remanded. The Veteran contended that he had been diagnosed with liver cancer which he asserted was due to his service in Vietnam.. His medical records reveal a diagnosis of liver cancer in 2009. The Board recognizes that prior to his death, the Veteran was not afforded a VA examination related to his liver cancer claim. Under McLendon v. Nicholson, 2 Vet. App. 79 (2006), in disability compensation (service connection) claims, VA must provide a VA medical examination when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, and (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran's service or with another service-connected disability, but (4) insufficient competent medical evidence on file for VA to make a decision on the claim. The threshold for finding a link between current disability and service, for the purpose of determining whether an examination is warranted, is low. Locklear v. Nicholson, 20 Vet. App. 410 (2006); McLendon, 20 Vet. App. at 83. In this case, the Board finds that the evidence surpasses the low threshold established by Locklear and McLendon. A remand is warranted to obtain a medical opinion addressing the etiology of the Veteran's claimed liver cancer. 4. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. Given the nature of the claim, the Board finds that this issue is inextricably intertwined with the above issues being remanded, which if granted, may cause the Veteran to have been entitled to TDIU prior to his death. Therefore, the Board finds that remand is necessary prior to adjudicating this claim. Harris v. Derwinski, 1 Vet. App. 180 (1991). The matters are REMANDED for the following action: 1. Obtain a medical opinion to determine the nature and etiology of the Veteran's claimed liver cancer. Following a review of the electronic claims file, the examiner is requested to address the following inquiry: (a.) Please clarify all liver disabilities that affected the Veteran during the appellate period. Specifically, were any of the documented cancers-to specifically include presumed to be due to exposure to herbicide agents as set forth in 38 C.F.R. § 3.309(e)? (b.) If the Veteran was not diagnosed with a presumptive disease as set forth in 38 C.F.R. § 3.309(e), is it at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) that the Veteran's diagnosed liver disability was directly related to his conceded in-service exposure to herbicide agents? The examiner is advised that a negative opinion cannot be based solely on the fact that a diagnosed disability is not on the list of diseases that are presumptively associated with exposure to herbicide agents. The examiner should set forth all examination findings, along with complete rationale for the conclusions reached, in a printed report. Complete rationale should include an explanation of the evidence used in support of the conclusion, as well as an explanation as to why such evidence supports the conclusion. 2. Also obtain an addendum medical opinion concerning the etiology of the Veteran's low back disability. All relevant evidence must be considered by the examiner, including a complete copy of this decision and remand. It is specifically requested the examiner provide supplemental comment responding to the following: Is it at least as likely as not (a 50 percent or greater probability) the Veteran's low back disability began during his service, or within a year of his discharge from service (since involving arthritis, at least as concerning his claim for spine disability), or are otherwise directly related to a disease, an event, or an injury during his service? *If, as the prior VA examiner concluded, the absence of suggestion of this condition during the Veteran's service and, specifically, by way of documentation in his STRs, is significant, there must be explanation of why it is reasonable to have this expectation. Moreover, the examiner must consider the Veteran's contention of continuity of symptomatology since his service and, if there is reason to doubt this contention, including because the examiner believes there should be earlier indication of this condition after the Veteran's service than there currently is, this, too, must be discussed in terms of why it is reasonable to have this expectation. 3. Arrange for the Veteran's file to be forwarded to an appropriate medical examiner for review and an advisory opinion regarding the etiology of his hypertension. [The examiner is specifically asked to provide opinions on the following: Is it at least as likely as not (50% or greater probability) the Veteran's hypertension onset during his service, or within a year of his discharge, or is otherwise etiologically related or attributable to his service, including especially to his presumed exposure to herbicides in Vietnam? *The rationale for the opinion must discuss the NASEM's VAO Update findings that there now is "sufficient evidence of an association" between exposure to herbicide agents and hypertension. See Veterans and Agent Orange: Update 11 (2018). Leetra J. Harris Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Alexander, Porschia N. 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.