Citation Nr: 1417437	
Decision Date: 04/18/14    Archive Date: 05/02/14

DOCKET NO.  09-44 681	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Roanoke, Virginia


THE ISSUES

1. Entitlement to service connection for a right hip disorder.

2. Entitlement to service connection for a left upper extremity disorder, to include disorders of the elbow, wrist, hand, and/or scaphoid.

3. Propriety of the reduction in rating from 10 percent to noncompensable (zero percent) for left ear hearing loss, as of December 1, 2008.


REPRESENTATION

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


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

T. M. Gillett, Counsel


INTRODUCTION

The Veteran served on active duty from September 1989 to September 1994. 

This case comes before the Board of Veterans' Appeals (Board) on appeal from September 2008 and May 2009 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia. 

The Veteran testified before the undersigned Acting Veterans Law Judge at a Board hearing at the VA Central Office in Washington, DC in September 2012. A transcript has been associated with the file. The record was held open for an additional 60 days, during which the Veteran submitted private medical evidence and waived initial RO consideration. 38 C.F.R. § 20.1304(c) (2013).  

Based upon his hearing testimony, the Board has rephrased the Veteran's claim for service connection for a left disorder as one for service connection for a left upper extremity disorder, to include the elbow, wrist, hand, and/or scaphoid, because the Veteran has multiple diagnoses of the left upper extremity that he asserts are related to his period of active military service.  The phrasing of the issue as listed above is more favorable to the Veteran.  

The issues of service connection for right hip and left wrist disorders are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ).


FINDINGS OF FACT

1. A September 2008 rating decision reduced the evaluation for the Veteran's service-connected left ear hearing loss from 10 percent to noncompensable, effective December 1, 2008. 

2. As of December 1, 2008, the 10 percent evaluation for left ear hearing loss had been in effect for more than five years.

3. The RO's decision to reduce the Veteran's evaluation from 10 percent to noncompensable was not supported by all of the evidence contained in the record at the time the reduction was made.


CONCLUSION OF LAW

The reduction of the disability evaluation for the Veteran's service-connected left ear hearing loss from 10 percent to noncompensable was not proper, and the 10 percent disability evaluation is restored from December 1, 2008. 38 U.S.C.A. 
§ 1155 (West 2002); 38 C.F.R. §§ 3.105, 3.344, 4.1, 4.2, 4.3, 4.7, 4.21 (2013).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

Duties to Notify and Assist

Since the entire benefit sought on appeal has been granted, no purpose would be served by undertaking an analysis of whether there has been compliance with the notice and duty to assist requirements set out at 38 U.S.C.A. §§ 5100, 5102-5103A, 5106, 5107, 5126 (West 2002). Bernard v. Brown, 4 Vet. App. 384 (1993); VAOPGCPREC 16-92, 57 Fed. Reg. 49,747 (1992).

Analysis

In October 2007, the RO proposed to reduce the Veteran's 10 percent evaluation for left ear hearing loss to noncompensable. This reduction was accomplished in a September 2008 rating decision, effective December 1, 2008. Initially, the Board observes 38 C.F.R. § 3.105 outlines a set of procedural safeguards governing rating reductions, which are required to be followed by VA before it issues any final rating reduction. See Brown v. Brown, 5 Vet. App. 413, 418 (1993). In the instant case, the RO procedurally complied with 38 C.F.R. § 3.105 regarding the manner in which the Veteran was given notice of the proposed rating reduction and the implementation of that reduction. Notice of the proposed rating reduction, including the evidentiary basis for this proposal, was provided to the Veteran in October 2007. This notice also informed the Veteran that he could submit additional evidence to show that the compensation payments should not be reduced and advised him of his right to request a pre-decisional personal hearing. The Veteran subsequently testified at a pre-decision hearing before a Decision Review Officer (DRO) in July 2008. As the RO fulfilled its procedural requirements set forth under 38 C.F.R. § 3.105 for rating reductions, the Board will now consider the propriety of the rating reduction.

The provisions of 38 C.F.R. § 3.344(a) and (b) provide that, where a Veteran's schedular rating has been both continuous and stable for five years or more, the rating may be reduced only if the examination upon which the reduction is based is at least as full and complete as the examination used to establish the higher evaluation. A rating that has been in effect for more than five years will not be reduced on any one examination, except in those instances where all of the evidence of record clearly warrants the conclusion that sustained improvement has been demonstrated. The rating agency must also take into consideration whether the evidence makes it reasonably certain that the improvement will be maintained under the ordinary conditions of life.

At the time the reduction became effective, December 1, 2008, the 10 percent rating for the Veteran's left ear hearing loss had been continuously in effect since October 1, 1994, a period of over five years. As such, the provisions of 38 C.F.R. § 3.344(a) and (b) are applicable.

In considering the propriety of a reduction, the Board must focus on the evidence available to the RO at the time the reduction was effectuated (although post-reduction medical evidence may be considered in the context of considering whether actual improvement was demonstrated). Dofflemyer v. Derwinski, 2 Vet. App. 277, 281-82 (1992). The Veteran need not demonstrate that he is entitled to retain the higher evaluation; rather, it must be shown by a preponderance of the evidence that the RO's reduction was warranted. See Brown, 5 Vet. App. 413; Kitchens v. Brown, 7 Vet. App. 320 (1995).

The assignment of disability ratings for hearing impairment is derived by a mechanical application of the rating schedule to the numeric designations assigned after audiometric evaluations are rendered. See Lendenmann v. Principi, 3 Vet. App. 345 (1992). The disability rating of a hearing loss disorder is determined by applying the criteria set forth at 38 C.F.R. § 4.85 (2013). Under these criteria, evaluations of bilateral hearing loss range from noncompensable to 100 percent based on organic impairment of hearing acuity as measured by the results of controlled speech discrimination tests together with the average pure tone hearing threshold level, as measured by pure tone audiometric tests in the frequencies 1,000, 2,000, 3,000 and 4,000 Hertz, or cycles per second, divided by four. This average is used in all cases to determine the Roman numeral designation for hearing impairment from Table VI or VIa. 38 C.F.R. § 4.85(a), (d) (2013).

In this instance, the VA RO in New York granted service connection for left ear hearing loss in a June 1995 rating decision and assigned a 10 percent disability rating based on the results of a February 1995 VA audiology examination report. In the February 1995 VA audiology examination report, a VA examiner noted that the Veteran had an average left ear puretone threshold of 48 dB (decibels) with a speech recognition score of 100 percent. In conjunction with a subsequent claim for an increased rating for hearing loss, VA provided the Veteran with an additional VA audiology examination in June 2004. In the June 2004 VA audiology examination report, a VA examiner noted that the Veteran had an average left ear puretone threshold of 18 dB with a speech recognition score of 96 percent. Most recently, in a January 2008 VA audiology examination report, a VA examiner noted that the Veteran had an average left ear puretone threshold of 49 dB with a speech recognition score of 88 percent.

The Board has found that not all of the evidence of record supports the reduction in evaluation from 10 percent to noncompensable for the Veteran's left ear hearing loss, based on the medical evidence of record at the time of the September 2008 rating decision which effectuated the reduction. Specifically, the record does not indicate that the Veteran experienced sustained improvement of his left ear hearing loss disability since the initial granting of the 10 percent rating in June 1995. The record clearly shows that the Veteran's speech recognition percentages have worsened over that period, dropping from 100 percent in February 1995 to 88 percent in January 2008. Likewise, if one were to concentrate solely on the earliest and most recent VA audiology examination results, it appears that the Veteran's average puretone thresholds have also worsened, rising from 48 dB in February 1995 to 49 dB in January 2008. Therefore, the record indicates that the Veteran did not experience sustained improvement of his left ear hearing loss disability, and the reduction of the 10 percent rating to noncompensable, effective from December 1, 2008, was not proper. Therefore, the requirements for restoration have been met. See generally 38 C.F.R. § 3.344 (2013).


ORDER

Restoration of the 10 percent evaluation for left ear hearing loss is granted effective December 1, 2008.


REMAND

In a May 2008 VA treatment record, a VA examiner noted that the Roanoke Memorial Hospital performed an X-ray on the Veteran's left wrist and found avascular necrosis of the proximal pole of the left scaphoid. The records from Roanoke Memorial Hospital are not included in the claims file. Moreover, the record does not contain any VA treatment records for the period from May 2004 to August 2006. In statements included in records dated after August 2006, several examiners refer to a carpal tunnel release procedure performed to alleviate symptoms in the Veteran's left wrist that was performed during the period for which the claims file contains no VA treatment records. All outstanding VA and private treatment records, to include those from Roanoke Memorial Hospital, should be procured for the claims file. 

The Board finds that a VA medical examination to determine the nature and etiology of the Veteran's claimed right hip disorder is required. The Board also finds that a supplemental VA medical opinion regarding the nature and etiology of the Veteran's claimed left upper extremity disorder should be obtained because the rationale set forth in the April 2012 VA examination is inadequate. 

Accordingly, the case is REMANDED for the following action:

1. Obtain and associate with the claims file all outstanding records of VA treatment for the Veteran's claimed right hip and left upper extremity disorders, including all VA treatment records dated between May 2004 and August 2006. All records/responses received should be associated with the claims file. Make as many requests as are necessary to obtain relevant records, and only end efforts to do so if the records sought do not exist or further efforts to obtain those records would be futile.  If no records are available, the claims folder must indicate this fact and the Veteran should be notified in accordance with 38 C.F.R. § 3.159(e) (2013).   

2. Provide the Veteran with the necessary authorization and release forms to procure any outstanding private treatment records, especially those from Roanoke Memorial Hospital.  If the Veteran returns the form, attempt to obtain these records and associate them with the claims file.  If no records are available, the claims folder must indicate this fact and the Veteran should be notified in accordance with 38 C.F.R. § 3.159(e) (2013).  

3. Provide the claims file to a VA examiner for a medical examination and opinion as to the etiology of the Veteran's claimed right hip disorder. The entire claims file and a copy of this remand must be made available to the VA examiner performing the examination. The examiner must note in the opinion that the evidence in the claims file has been reviewed. The following considerations must govern the opinion:

a. The VA examiner must provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran's current right hip disorder relates to service. Specifically, the examiner must opine as to whether the Veteran's right hip disorder manifested in service or was caused by or a result of an event in service, to include a January 1992 hit and run incident.

b. The VA examiner must conduct a complete right hip examination. 

c. The examiner has an independent responsibility to review the entire record for pertinent evidence, including any pertinent medical evidence that is added to the record as a result of this remand. That said, the examiner's attention is called to:

i. The January 1992 service treatment record indicating treatment for low back pain following the hit and run incident. 

ii. The February 1995 VA joints examination report.

iii. The August 2006 VA treatment record indicating right hip pain and subsequent VA treatment records, to include the reports of a December 2006 "core decompression" operation.

iv. The December 2006 VA internal medicine attending note, diagnosing the Veteran with right hip avascular necrosis "which historically appears related to prior steroid use and trauma."

v. The June 2012 and September 2012 private treatment records, diagnosing the Veteran with avascular necrosis of the right hip "secondary to traumatic injuries in the distant past." 

vi. The September 2012 Hearing Testimony and other lay statements of record. 

d. The examiner must provide a complete explanation of his or her opinion, based on his or her clinical experience, medical expertise, and established medical principles. 

e. If the above requested opinion cannot be made without resort to speculation, the examiner must state this and specifically explain whether there is any potentially available information that, if obtained, would allow for a non-speculative opinion to be provided.

4. Provide the claims file to a VA clinician for a medical opinion as to the etiology of the Veteran's claimed left wrist disorder. The entire claims file and a copy of this remand must be made available to the VA clinician writing the opinion. The clinician must note in the opinion that the evidence in the claims file has been reviewed. If the VA clinician determines that a VA medical examination would be necessary to determine the nature and etiology of the claimed left wrist disorder, the examination should be provided. The following considerations must govern the opinion:

a. The VA clinician must provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran's current left wrist disorder, to potentially include cubital tunnel syndrome and avascular necrosis of the left scaphoid, relates to service. Specifically, the clinician must opine as to whether the Veteran's left wrist disorder manifested in service or was caused by or a result of an event in service, to include the January 1992 hit and run incident.

b. The clinician has an independent responsibility to review the entire record for pertinent evidence, including any pertinent medical evidence that is added to the record as a result of this remand. That said, the clinician's attention is called to:

i. The January 1992 service treatment record indicating treatment for low back pain following the hit and run incident. 

ii. The February 1995 VA joints, and hand, thumb, and fingers examination reports.

iii. The January 2004 and February 2004 VA treatment records indicating treatment for carpal tunnel syndrome.

iv. The May 2008 VA orthopedic surgery consult, indicating avascular necrosis of the proximal pole of the scaphoid.

v. The October 2009 VA plastic surgery outpatient note, diagnosing cubital tunnel syndrome, recommending a bone graft to the scaphoid, and suggesting a nexus between the Veteran's left wrist disorder(s) and the in-service "auto accident."

vi. The April 2012 VA medical examination report.

vii. The September 2012 Hearing Testimony and other lay statements of record.

c. The clinician must provide a complete explanation of his or her opinion, based on his or her clinical experience, medical expertise, and established medical principles. In so doing, the clinician is advised that he or she should address both the October 2009 VA plastic surgery outpatient note and the Veteran's lay reports of symptomatology in their opinion. 

d. If the above requested opinion cannot be made without resort to speculation, the examiner must state this and specifically explain whether there is any potentially available information that, if obtained, would allow for a non-speculative opinion to be provided.

5. After the above development has been completed, the RO must review the claims file and ensure that all of the foregoing development actions have been completed in full.  If any development is incomplete, appropriate corrective action must be implemented.  If any report does not include adequate responses to the specific opinions requested, it must be returned to the providing examiner for corrective action.  

6. Thereafter, and after undertaking any additional development deemed necessary, readjudicate the issues on appeal.  If the benefits sought on appeal remain denied, in whole or in part, the Veteran and his representative should be provided with a Supplemental Statement of the Case and be afforded reasonable opportunity to respond.  The case should then be returned to the Board for further appellate review, if otherwise in order.

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

These claims 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. 2013).




______________________________________________
D. MARTZ AMES
Acting Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs