Citation Nr: 1309235	
Decision Date: 03/19/13    Archive Date: 04/01/13

DOCKET NO.  10-46 527	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO)
in Waco, Texas




THE ISSUES

1.  Entitlement to service connection for a claimed right ear hearing loss.

2.  Whether the reduction of the rating for the service-connected non-Hodgkin's lymphoma from 100 percent to a noncompensable evaluation was proper.

3.  Entitlement to an initial compensable rating for the service-connected lumbar spinal stenosis.




REPRESENTATION

Appellant represented by:	Veterans of Foreign Wars of the United States



ATTORNEY FOR THE BOARD

J. Smith, Counsel


INTRODUCTION

The Veteran had active service from August 1967 to August 1969.

This matter initially came before the Board of Veteran's Appeals (Board) on appeal from March 2010 and September 2011 rating decisions of the RO.  

In the March 2010 rating decision, the RO granted service connection for lumbar spinal stenosis and assigned a noncompensable rating effective on November 5, 2009.  

In the September 2011 rating decision, the RO  granted service connection for non-Hodgkin's lymphoma.   An initial 100 percent rating was assigned, effective on November 23, 2010, followed by a noncompensable evaluation, effective on August 1, 2011.

In the Veteran's November 2010 VA Form 9, Appeal to the Board of Veterans Appeals, for the hearing loss and lumbar spine claims, he indicated that he wished to testify before the Board by means of videoconference technology.   In December 2012, he withdrew this hearing request. Therefore, the Board finds that there is no hearing request pending at this time.  See 38 C.F.R. § 20.702(e) (2012). 

The Board notes that in the Veteran's Notice of Disagreement and VA form 9 on non-Hodgkin's lymphoma, the Veteran disagreed with the rating reduction effectuated by the September 2011 rating decision.  

In the subsequent Statement of the Case, it is unclear if the RO treated the issue as an increased rating claim or rating restoration claim.  The RO identified the issue as an increased rating claim, but the regulations pertaining to rating reductions were provided, and the analysis that follows addresses the propriety of the reduction.  

The Board here has characterized the issue as involving only the propriety of the rating reduction.  As described in detail below, the Board has found the rating reduction improper, and thereby restored the 100 percent evaluation.  As this provides the Veteran the greatest possible benefit, the Board finds no prejudice to the Veteran in characterizing the issue in this manner.  

The Board has considered documentation included in the Virtual VA system in reaching the determination below.  At present, the system contains VA treatment records that are not physically in the file, but that were considered by the RO in the last supplemental statement of the case.

The issue of an increased rating for the service-connected lumbar spinal stenosis is being remanded to the RO via the Appeals Management Center (AMC), in Washington, DC. 


FINDINGS OF FACT

1.  The Veteran is shown to have been exposed to excessive and harmful noise in connection with combat during service in the Republic of Vietnam.

2.  The Veteran is found to have presented credible lay assertions sufficient to establish a continuity of symptomatology linking the onset of his right ear hearing loss to his period of active service.  

3.  The currently demonstrated right ear hearing loss is shown as likely as not to be due to the noise exposure sustained during the Veteran's period of active service.  

4.  In a September 2011 rating action, the RO assigned a 100 percent evaluation for non-Hodgkin's lymphoma effective beginning on November 23, 2010 to July 31, 2011when  noncompensable rating was made effective.  

5.  The Veteran was not provided with appropriate notice of the proposed reduction or afforded a 60-day period to appeal the proposed reduction or an opportunity for a pre-determination hearing.


CONCLUSIONS OF LAW

1. By extending the benefit of the doubt to the Veteran, his right ear hearing loss disability is due to disease or injury that was incurred in active service.  38 U.S.C.A. §§ 1110. 1131, 5103-5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.385 (2012).

2. The reduction of the 100 percent rating to a noncompensable level, effective on August 1, 2011, for service-connected non-Hodgkin's lymphoma residuals was improper and is void ab initio.  38 U.S.C.A §§ 1155, 5103, 5103A, 5112(b)(6) (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.103(b)(2), 3.105(e), 3.159, 4.1, 4.7, 4.117, Diagnostic Code 7715 (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Notice and Assistance

A discussion addressing whether VA's duties to notify and assist the Veteran have been complied with is not warranted.  To the extent necessary, VA has fulfilled its duties to notify and to assist the Veteran in the development of his claims.  See 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002).  

In light of the determinations reached in this case, no prejudice will result to the Veteran by the Board's consideration of this appeal at this time.  Bernard v. Brown, 4 Vet. App. 384, 393-94 (1993).  


Analysis

Hearing Loss

Establishing entitlement to direct service connection generally requires: (1) competent and credible evidence of current disability; (2) competent and credible evidence of in-service incurrence or aggravation of a relevant disease or an injury; and (3) competent and credible evidence of a nexus or link between the in-service injury or disease and the current disability.  Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table).

If chronicity (i.e., permanency) of disease or injury in service is not shown, or legitimately questionable, then a showing of continuity of symptomatology following service is required to support the claim.  38 C.F.R. § 3.303(b).  

Under § 3.303(b), an alternative method of establishing the second and third Shedden/Caluza elements is through a demonstration of continuity of symptomatology.  Barr v. Nicholson, 21 Vet. App. 303 (2007); see also Clyburn v. West, 12 Vet. App. 296, 302 (1999).  

Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology.  

Recently, the United States Court of Appeals for the Federal Circuit held that the theory of continuity of symptomatology can be used only in cases involving those conditions explicitly recognized as chronic 38 C.F.R. § 3.309(a).  Walker v. Shinseki, ___ F.3d ___, No. 2011-7184, 2013 WL 628429 (Fed. Cir. Feb. 21, 2013).  Sensorineural hearing loss is subject to service connection based upon continuity of symptomatology as an "organic disease of the nervous system" under 38 C.F.R. § 3.309(a).  

Medical evidence is not always or categorically required when the determinative issue involves either medical diagnosis or etiology, but rather such issue may, depending on the facts of the particular case, be established by competent and credible lay evidence under 38 U.S.C.A. § 1154(a).  See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009) (noting that section 1154(a) requires that VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability or death benefits).  

Specific to claims for service connection, impaired hearing is considered a disability for VA purposes when the auditory threshold in any of the frequencies of 500, 1,000, 2,000, 3,000, or 4,000 Hertz is 40 decibels or greater; the thresholds for at least three of these frequencies are 26 or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent.  38 C.F.R. § 3.385.

Taking the first element of service connection, the Veteran here has a current 
diagnosis of right ear hearing loss for VA purposes, documented on VA examination in January 2010.  The examiner specifically found the Veteran suffers from sensorineural hearing loss.

The record also establishes that the Veteran was exposed to excessive noise incident to duties in service.  The Veteran reports being exposed to hazardous noise from mortars, rifles, grenades, and shells during combat duty.  Pursuant to 38 U.S.C.A. § 1154(b) (West 2002), combat Veterans may establish service incurrence of a disease or injury through satisfactory lay or other evidence which is consistent with the circumstances, conditions or hardships of service, even in the absence of official record of such incurrence.  See also 38 C.F.R. § 3.304(d) (2012).

Initially, the Board notes that VA has already conceded the Veteran's exposure to acoustic trauma in service.  See March 2010 Rating Decision.  His DD 214 Form reflects he received the Combat Infantryman Badge, among other medals.  

Moreover, service treatment records reflect a decline in hearing during service when comparing audiological measurements obtained on entry into service with those obtained at separation.  

On entry into service, the following pure tone thresholds, in decibels, were obtained:
 

HERTZ




1000
2000
3000
4000
RIGHT
5
-5
5
25
LEFT
5
5
5
5

As documented in a July 1969 report accompanying his separation examination, the Veteran complained of a loss of hearing acuity.  The following pure tone thresholds, in decibels, were obtained:


HERTZ




1000
2000
3000
4000
RIGHT
5
5
X
30
LEFT
5
0
X
15

For all of these reasons, the Board accepts that acoustic injury occurred during service. 

The Veteran contends he has suffered from hearing loss in his right ear since combat duty in Vietnam.  See, e.g., December 2009 letter.  The Board finds that the Veteran is competent to report his own symptoms in this regard because doing so requires only personal knowledge as it comes to him through his senses.  Layno, 6 Vet. App. at 470.  

The Board also finds that the Veteran's statements are credible.  In determining whether statements submitted by a Veteran are credible, the Board may consider internal consistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant.  Caluza v. Brown, 7 Vet. App. 498 (1995).  

Here, the Veteran's contentions of right ear hearing loss are consistent with the medical record as a whole.  His account of in-service acoustic trauma is corroborated by the July 1969 service treatment record, and the decline in hearing demonstrated by the entrance and separation examination reports.  

Also, his statements are internally consistent as the Veteran has never alleged any etiology for his condition other than the in-service incurrence of the problem.  The Veteran noted that, after service, he worked for a school district doing computer work, and then for the City of Fort Worth with no occupational noise exposure.  He reported only hunting occasionally with the use of hearing protection.  The Board has no reason to doubt the credibility of the Veteran's allegations.  

While the VA examination in January 2010 did not provide an opinion that linked the Veteran's severe bilateral sensorineural hearing to the reported noise exposure in service, the Board finds the medical opinion to be of reduced probative value to the extent that the examiner did not address the Veteran's credible lay assertions.  
  
Given this record, the Board finds the evidence to be in relative equipoise in showing that right ear hearing loss as likely as not is due to excessive and harmful noise levels to which the Veteran was exposed during combat in the Republic of Vietnam.  

While acknowledging the VA examiner's negative opinion in this case, a positive nexus opinion is not necessary given the competent and credible lay evidence of a continuity of symptomatology established by the record.  

As the reasonable doubt created by the approximate balance of evidence must be resolved in favor of the Veteran, service connection for right ear hearing loss is warranted.  See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; see also Fagan v. Shinseki, 573 F.3d 1282, 1287 (Fed. Cir. 2009).


Non-Hodgkin's Lymphoma

Applicable criteria provides that "with active disease or during a treatment phase," non-Hodgkin's lymphoma is to be rated at 100 percent.  38 C.F.R § 4.117, Diagnostic Code (DC) 7715.  The note to the Diagnostic Code states that the 100 percent rating shall continue beyond the cessation of any surgical, radiation, antineoplastic chemotherapy or other therapeutic procedures.  Six months after discontinuance of such treatment, the appropriate disability rating shall be determined by mandatory VA examination.  Any change in evaluation based upon that or any subsequent examination shall be subject to the provisions of § 3.105(e) of this chapter.  If there has been no local recurrence or metastasis, rate on residuals.

As noted, by rating decision dated in September 2011, the RO granted entitlement to service connection for non-Hodgkin's lymphoma and assigned a 100 percent disability evaluation, effective November 23, 2010, the date of the Veteran's claim, and a noncompensable evaluation from August 1, 2011.  The Veteran perfected a timely appeal of this decision.

Under 38 C.F.R. § 3.105(e), where a lower rating would result in a reduction or discontinuance of compensation payments, as in this case, a rating proposing the reduction or discontinuance will be prepared setting forth all material facts and reasons.  The beneficiary will be notified at his latest address or record of the proposed rating reduction and furnished detailed reasons for this action.  He also will be given 60 days to present additional evidence why the proposed rating reduction should not be implemented and to show that compensation payments should continue at their current level.  Final rating action will be taken and the award will be reduced or discontinued effective the last day of the month in which a 60-day period from the date of notice to the beneficiary of the final rating action has expired.  See 38 C.F.R. § 3.105(e) (2012).  The beneficiary also will be informed that he will have an opportunity for a pre-determination hearing concerning the proposed rating reduction provided that any hearing request is received by VA within 30 days from the date of the notice.  See 38 C.F.R. § 3.105(i) (2012).

The Board finds that the evidence supports a finding that the rating reduction from 100 percent to noncompensable, effective August 1, 2011, for service-connected non-Hodgkin's lymphoma residuals was not in accordance with established regulations and, thus, improper.  

A review of the claims file shows that the RO failed to follow the procedures for rating reductions in VA compensation claims.  See generally 38 C.F.R. §§ 3.105(e) (2012).  

The Veteran was not given notice of the proposed reduction in the disability rating assigned for his service-connected non-Hodgkin's lymphoma residuals, a 60-day period to appeal the proposed reduction, or an opportunity for a pre-determination hearing on the proposed reduction.  See 38 C.F.R. §§ 3.105(e), (i) (2012).  

Rather than providing any notice to the Veteran that the disability rating assigned for his service-connected non-Hodgkin's lymphoma residuals would be reduced, the RO simply reduced the 100 percent rating to noncompensable, effective August 1, 2011, all within the September 2011 rating decision.  The only notice that the Veteran received of the rating reduction for his service-connected non-Hodgkin's lymphoma residuals was when he received a copy of that decision.

There is no discretion in DC 7715 for the RO to abandon the procedures for rating reductions outlined in 38 C.F.R. § 3.105(e) when, as in this case, it reduced the disability rating assigned for the Veteran's service-connected non-Hodgkin's lymphoma residuals from 100 percent.  This is so even when the reduction is imposed contemporaneous with the retroactive assignment of the 100 percent rating, as in the instant case.

DC 7715 also provides that a 100 percent disability evaluation shall continue with a mandatory VA examination at 6 months after discontinuance of treatment.  A May 2011 VA examination report shows that the Veteran's radiation treatment ended in January 2011.  Six months following January 2011 is July 2011.  Thus, although the Veteran was provided with a VA examination in May 2011, prior to the reduction of his rating, he was not provided with an examination at the expiration of 6 months.  His examination occurred at 4 months.  

Given the non-discretionary language concerning rating reductions found in DC 7715 and in 38 C.F.R. § 3.105(e), the Board finds that the RO's failure to follow the procedures for rating reductions in DC 7715 and in 38 C.F.R. § 3.105(e) was erroneous.  

Because the RO clearly failed to follow the procedures for rating reductions in this case, the Board finds that the 100 percent rating must be restored effective on August 1, 2011.

The Board does not hold, nor does it intend to suggest, that the Veteran's residuals of non-Hodgkin's lymphoma currently meet the rating criteria for a 100 percent evaluation.  The Board's decision in this case is limited to finding that the rating reduction from 100 percent to noncompensable effective August 1, 2011, for service-connected non-Hodgkin's lymphoma is now void, and that additional development is required before a rating reduction can be instituted, in accordance with the proper procedures for rating reductions found in 38 C.F.R. § 3.105(e).  See 38 C.F.R. § 3.105(e) (2012).



ORDER

Service connection for right ear hearing loss is granted.

The rating reduction from 100 percent to a noncompensable rating, effective on August 1, 2011, for the service-connected non-Hodgkin's lymphoma is void ab initio.



REMAND

The United States Court of Appeals for Veterans Claims (Court) has held that, when a Veteran alleges that his service-connected disability has worsened since he was previously examined, a new examination may be required to evaluate the current degree of impairment.  See Snuffer v. Gober, 10 Vet. App. 400, 403 (1997) (finding a Veteran is entitled to a new examination after a two-year period between the last VA examination and the Veteran's contention that the pertinent disability had increased in severity).  

In this case, the Veteran's representative has requested a new VA examination to assess the current severity of the service-connected lumbar spinal stenosis.  See January 2013 Informal Hearing Presentation.  

The Veteran's representative additionally asserts that the last VA examination of February 2010 was inadequate because the examiner recommended that an MRI be conducted, and such a study was not completed.

On the Board's review of the February 2010 VA examination report, the VA examiner did recommend the completion of an MRI study.  Further, the examiner stated, "his complaints are also muscular in origin as much as they are skeletal or neurological."  

The report does not contain documentation of neurological complaints.  The Board finds that any neurological impairments associated with the Veteran's lumbar spinal stenosis should be explained and assessed.

Accordingly, this remaining matter is REMANDED to the RO for the following action:

1. The RO should have the Veteran scheduled for VA orthopedic and neurological examinations in order to determine the current severity of his lumbar spine disability.  

The orthopedic findings must include ranges of motion, with notations as to the degree of motion at which the Veteran experiences pain, if any. The examiner should identify and completely describe any other current symptomatology.  

The neurological findings must include an opinion as to whether it is at least as likely as not (e.g. 50 percent probability or greater) that the Veteran has any neurological disorder associated with his lumbar spine disability.  

If so, the examiner must specifically indicate which nerves, if any, are involved, and indicate if there is complete paralysis.  If incomplete, the examiner should indicate if the severity is mild, moderate, moderately severe, or severe.  

The examiner should note that the February 2010 VA examiner recommended the completion of an MRI study.  The examiner should determine whether an MRI is necessary to assess the lumbar spine disability.  If it is, the MRI must be conducted, and the results forwarded to the examiner for comment.  If not, the examiner should fully explain why such a study is not needed.

The Veteran's claims folder, including the electronic file, must be reviewed by the examiner in conjunction with the examination.  The pertinent rating criteria must be provided to the examiner, and the findings reported must be sufficiently complete to allow for rating under all alternate criteria.  All indicated tests and studies should be accomplished, and all clinical findings should be reported in detail.  

2.  The Veteran is hereby notified that it is his responsibility to report for the examination and to cooperate in the development of the claim.  The consequences for failure to report for a VA examination without good cause may include denial of the claim.  38 C.F.R. §§ 3.158, 3.655 (2012).  

3.  After the requested examination has been completed, the RO should review the examination report to ensure that it is in complete compliance with the directives of this REMAND.  If the report is deficient in any manner, the RO must implement corrective procedures at once.  

4.  After completing all indicated development, the RO then should readjudicate the claim remaining on appeal in light of all the evidence on file. All applicable laws and regulations, and all evidence received, to include in the electronic claims file, should be considered.  If the benefit sought on appeal remains denied, the Veteran and his representative should be furnished with a fully responsive Supplemental Statement of the Case and afforded a reasonable opportunity for response.  

Thereafter, if indicated, the case should be returned to the Board for the purpose of appellate disposition.

The Veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

This claim must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012).




______________________________________________
STEPHEN L. WILKINS
Veterans Law Judge, 
Board of Veterans' Appeals


Department of Veterans Affairs