Citation Nr: 1803608 Decision Date: 01/19/18 Archive Date: 01/29/18 DOCKET NO. 14-31 350 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin THE ISSUES 1. Whether the reduction in the evaluation for bilateral hearing loss from 80 percent to noncompensable was proper. 2. Whether new and material evidence has been submitted sufficient to reopen a claim of service connection for ulcers. 3. Entitlement to service connection for ulcers. 4. Entitlement to service connection for a heart disorder. 5. Entitlement to service connection for loss of consciousness condition. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States WITNESSES AT HEARING ON APPEAL Veteran and his spouse ATTORNEY FOR THE BOARD Shana Z. Siesser, Counsel INTRODUCTION Please note that the case has been advanced on the docket pursuant to 38 C.F.R. § 20.900 (c) (2017). The Veteran served on active duty in the Army from November 1952 to August 1954, with service in Korea during the Korean Conflict.. These matters initially came before the Board of Veterans' Appeals (Board) on appeal from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Des Moines, Iowa. In September 2017, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. This appeal was processed using the Veterans Benefits Management System (VBMS) and Virtual VA (VVA) electronic claims processing systems. Any future consideration of this claim should take into consideration the existence of the electronic record. The claims of service connection for a heart disorder, blackouts, and ulcers are REMANDED to the Agency of Original Jurisdiction (AOJ) and are addressed in the REMAND portion of this decision. FINDINGS OF FACT 1. In May 2008, the RO granted service connection for bilateral hearing loss, effective from May 31, 2007; an 80 percent evaluation was assigned based on a July 2005 VA examination report that appeared to reflect Maryland CNC speech discrimination scores of 20 and 15 percent for the right and left ears, respectively. 2. The Veteran underwent a review examination in September 2009; his auditory acuity was no worse than level I in the right ear and no worse than level I in the left ear, with speech discrimination scores of 96 and 92 percent, in the right and left ears. 3. The Veteran underwent a review examination in September 2012; his auditory acuity was no worse than level II in the right ear and no worse than level II in the left ear, with speech discrimination scores of 90 and 88 percent, in the right and left ears. 4. In November 2012, the RO entered a rating action proposing to reduce the Veteran's rating for bilateral hearing loss from 80 to 0 percent, based on September 2009 and September 2012 examination findings; the RO notified the Veteran of the contemplated action, and the reasons therefor, and informed him of his right to submit additional evidence and to appear at a hearing. 5. In February 2013, the RO implemented the proposed reduction to 0 percent, effective from May 1, 2013; on subsequent VA examination in June 2016, the Veteran's auditory acuity was no worse than level II in the right ear and no worse than level II in the left ear, with speech discrimination scores of 88 and 80 percent in the right and left ears. 6. Service connection for ulcers was denied by a January 2010 rating decision, which was not appealed. The RO notified the Veteran of the decision. 7. Evidence received subsequent to the January 2010 rating decision is not cumulative or redundant of the evidence previously of record, relates to an unestablished fact necessary to substantiate the claim and raises a reasonable possibility of substantiating the claim. CONCLUSIONS OF LAW 1. The reduction in the evaluation for bilateral hearing loss, from 80 to 0 percent, was proper. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.105, 3.344, 4.85, Diagnostic Code 6100 (2017). 2. The January 2010 rating decision which denied service connection for ulcers is final. 38 U.S.C.A. § 7105 (West 2014); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2017). 3. New and material evidence has been received since the January 2010 rating decision and the claim of entitlement to service connection for ulcers is reopened. 38 U.S.C.A. § 5108 (West 2014); 38 C.F.R. § 3.156 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 (VCAA) When VA receives a complete or substantially complete application for benefits, it must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017). See also Quartuccio v. Principi, 16 Vet. App. 183 (2002); Pelegrini v. Principi, 18 Vet. App. 112 (2004). The Veteran has been provided notice letters throughout the appeal that address all notice elements required. There has been no allegation of notice error in this case. See Shinseki v. Sanders/Simmons, 556 U.S. 396 (2009). The Veteran has been afforded VA examinations in conjunction with his appeal. See 38 U.S.C.A. § 5103A (d); see also 38 C.F.R. § 3.159 (c)(4) (2016); Wells v. Principi, 327 F.3d 1339, 1341 (Fed. Cir. 2002). The Board finds the examinations are adequate for the purpose of determining a rating, as they involved a review of the Veteran's pertinent medical history as well as a clinical evaluation of the Veteran, and provide the objective an adequate basis for the diagnosis and opinions rendered. See generally Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). In light of the foregoing, the Board is satisfied that all relevant facts have been adequately developed to the extent possible; no further assistance to the appellant in developing the facts pertinent to the issue on appeal is required to comply with the duty to assist. 38 U.S.C.A. §§ 5103 and 5103A; 38 C.F.R. § 3.159. Law and analysis - rating reduction A Veteran's disability rating shall not be reduced unless an improvement in the disability is shown to have occurred. 38 U.S.C.A. § 1155. When a reduction is effectuated without following the applicable regulations, the reduction is void ab initio. See Greyzck v. West, 12 Vet. App. 288, 292 (1999). When reduction in an evaluation is contemplated, and the lower evaluation would result in a reduction or discontinuance of compensation payments, a rating proposing the reduction or discontinuance must be prepared setting forth all material facts and reasons. The beneficiary must be notified at his latest address of record of the contemplated action and furnished detailed reasons therefore. The beneficiary must be given 60 days for the presentation of additional evidence to show that compensation payments should be continued at the present level. 38 C.F.R. § 3.105 (e). Where a rating reduction was made without observance of law, the reduction must be vacated and the prior rating restored. Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). Disability evaluations 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 daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Schedule). 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify various disabilities and the criteria for specific ratings. Pertinent regulations do not require that all cases show all findings specified by the Schedule, but that findings sufficient to identify the disease and the resulting disability and above all, coordination of the rating with impairment of function will be expected in all cases. 38 C.F.R. §§ 4.7 and 4.21; see also Mauerhan v. Principi, 16 Vet. App. 436 (2002). If two disability evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. In general, the RO's reduction of a rating must have been supported by the evidence on file at the time of the reduction. Pertinent post-reduction evidence favorable to restoring the rating, however, also must be considered. See Dofflemeyer v. Derwinski, 2 Vet. App. 277, 279-280 (1992). In addressing whether improvement is shown, the comparison point generally is the last examination on which the rating at issue was assigned or continued. See Hohol v. Derwinski, 2 Vet. App. 169 (1992). 38 C.F.R. § 3.344 establishes greater protections of benefits which have been in effect for five years or more. 38 C.F.R. § 3.344 (c). In such a case, the AOJ must find the following: (1) the examination forming the basis for the reduction is full and complete, and at least as full and complete as the examination upon which the rating was originally based; (2) the record clearly reflects a finding of material improvement; and (3) it is reasonably certain that the material improvement found will be maintained under the ordinary conditions of life. See Kitchens v. Brown, 7 Vet. App. 320 (1995); Brown v. Brown, 5 Vet. App. 413, 419 (1993). The Veteran underwent a VA audio examination in July 2005. The Veteran's puretone thresholds were as follows: 1000 Hz 2000 Hz 3000 Hz 4000 Hz Right 20 30 65 80 Left 20 25 60 75 His average was 48.75 in the right ear and 45 in the left. His speech recognition scores were reported to be 20 percent on the right and 15 percent on the left. The examiner diagnosed mild to profound sensorineural hearing loss of the right ear and moderately severe to severe sensorineural hearing loss of the left ear. These results show an auditory acuity of level X in the right ear level X in the left ear, warranting an 80 percent evaluation. The Veteran submitted a May 2007 audiology consultation from a private audiologist. He opined that the audiogram revealed a bilateral mild to moderately severe neurosensory hearing loss with thresholds more pronounced in the higher frequencies and in the right ear. Word recognition ability was good in both ears at elevated levels of speech of 60 dBHL for the left and 75 dBHL for the right. The speech in noise test was also administered and showed a moderate to severe amount of difficulty recognizing important components of speech at a normal level of speech. When the decrease in hearing was compensated for both in terms of loudness and an increase in the higher frequencies, the Veteran's word recognition score in noise improved to mild. A May 2008 rating decision granted service connection for bilateral hearing loss and assigned an 80 percent evaluation, effective May 31, 2007. The rating was predicated on the results of the July 2005 VA examination. In a September 2009 VA audio examination, the Veteran's puretone thresholds were as follows: 1000 Hz 2000 Hz 3000 Hz 4000 Hz Right 25 35 70 85 Left 25 30 65 75 His average was 53.75 in the right ear and 48.75 in the left. His speech recognition scores were 96 percent on the right and 92 percent on the left. The examiner diagnosed normal sloping to severe sensorineural hearing loss of the right ear and mild sloping to severe sensorineural hearing loss of the left ear. These results show an auditory acuity of level I in the right ear level I in the left ear, warranting a noncompensable evaluation. In a September 2012 VA audio examination, the Veteran's puretone thresholds were as follows: 1000 Hz 2000 Hz 3000 Hz 4000 Hz Right 20 30 75 90 Left 20 40 65 90 His average was 54 in the right ear and 54 in the left. His speech recognition scores were 90 percent on the right and 88 percent on the left. The examiner diagnosed bilateral to normal to high frequency profound sensorineural hearing loss. These results show an auditory acuity of level II in the right ear and level II in the left ear, warranting a noncompensable evaluation. In a November 2012 rating decision, the RO proposed to decrease the Veteran's rating for bilateral hearing loss from 80 percent to noncompensable. In a December 2012 statement, the Veteran contended that he should be rated at least 60 percent or higher for his hearing loss. In support of his argument, his provided an opinion from his audiologist. In the December 2012 audiology clinic note by P.T., AuD., Dr. T. stated that the Veteran underwent a full evaluation in May 2007, at which time he showed bilateral, nearly symmetrical, mild to moderately severe neurosensory hearing loss with good word recognition ability at elevated levels of speech in quiet. Upon current examination, Dr. T. stated that the testing continued to show a bilateral, nearly symmetrical mild to moderately severe sloping neurosensory hearing or with work recognition in the 90 percentile at elevated levels of speech. He opined that no significant changes were seen compared to 2007, although average thresholds decreased by an average of 10 dB on the right. He further noted that he was "puzzled regarding the significant impairment in his hearing the 2005 determination was base, and, as it is most likely erroneous, the subsequent audiograms would only show an improvement in his hearing due to this seemingly incorrect baseline. Overall, [he did] not see his hearing has changed dramatically in recent years." In the February 2013 rating decision, the RO implemented the decrease to noncompensable, effective May 1, 2013. In a March 2013 statement, the Veteran stated that he still continues to experience hearing loss, although he was advised by a VA nurse that his initial testing may have been incorrect. The Veteran's audiologist, Dr. T., submitted an August 2014 statement. He opined that he did not see that the Veteran's hearing had changed significantly from the test obtained in July 2005 to December 2012. He further stated that it appears that the 2005 testing was erroneous but that the Veteran's hearing had not changed and only appeared to improve due to this "seemingly incorrect baseline." The Veteran underwent a VA audio examination in June 2016. His puretone thresholds were as follows: 1000 Hz 2000 Hz 3000 Hz 4000 Hz Right 15 40 65 80 Left 20 45 60 85 His average was 50 in the right ear and 51 in the left. His speech recognition scores were 88 percent on the right and 80 percent on the left. These results show an auditory acuity of level II in the right ear and level IV in the left ear, warranting a noncompensable evaluation. In view of the foregoing, it is clear that the Veteran's bilateral hearing loss was no more than 0 percent disabling at the time of the RO's reduction decision in February 2013. The provisions of 38 C.F.R. § 4.86, relating to exceptional patterns of hearing impairment, are not implicated by the examination data from any of the available reports, and the data from the VA examinations in September 2009, September 2012, and June 2016 clearly demonstrate entitlement to nothing more than a 0 percent (noncompensable) rating. As such, the weight of the evidence was against the continued assignment of the prior 80 percent rating, and the reduction in the evaluation for bilateral hearing loss, from 80 to 0 percent, was proper. The Board acknowledges that the evidence does not show improvement between the private examination in 2007 to the present VA examination in 2016. The Board also notes the possibility that the July 2005 findings regarding speech discrimination scores were erroneous. However, as noted above, the evidence of record demonstrates entitlement to nothing more than a noncompensable rating. As such, it serves to confirm the propriety of the reduction. In summary, it appears that the original award of the 80 percent rating may have been based on an erroneous speech recognition scores in the July 2005 VA examination. Regardless, the subsequent VA examinations as well as the private audiologist's reports, all reflect significantly improved speech recognition scores than were reported on the VA examination in July 2005. Thus, the evidence reflects continued improvement under the ordinary conditions of life. In reaching the above conclusions, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the greater weight of the evidence is against the Veteran's appeal, that doctrine is not applicable. New and material evidence In a January 2010 rating decision, the RO denied the Veteran's claim of service connection for ulcers. The Veteran did not appeal the claim or submit new and material evidence within one year. Therefore, the rating decision is final. Evidence on file at that time included his separation examination, treatment records showing a diagnosis of ulcers, and the Veteran's statements that he experienced ulcers during and since service. Regardless of the whether the RO on its own determination has reopened the claim; the Board has a jurisdictional responsibility to consider whether it was proper for the RO to do so. See Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001). Applicable law provides that a final decision cannot be reopened unless new and material evidence is presented and the Board will look to the record to determine if indeed such evidence has been submitted or secured. See 38 U.S.C.A. § 5108. New and material 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 can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156. The threshold for the evidence required to reopen a claim is low. The definition of new and material evidence is consistent with 38 C.F.R. § 3.159 (c)(4), which "does not require new and material evidence as to each previously unproven element of a claim." Shade v. Shinseki, 24 Vet. App. 110 (2010). The evidence received since the January 2010 rating decision includes evidence that is both new and material to the claim. Specifically, the Veteran contended that he developed ulcers as a result of treatment for his heart disorder. The Veteran testified that he began experiencing heart trouble and blackouts shortly after service. The Board finds this evidence to be new and material and therefore, the claim is reopened and will be considered on the merits. ORDER The reduction of the evaluation for bilateral hearing loss from 80 percent to noncompensable is proper. New and material evidence has been received and the Veteran's petition to reopen a claim of service connection for ulcers is granted. REMAND With regard to the Veteran's claims of service connection for a heart disorder, blackouts, and ulcers, the Board finds that a VA examination is necessary prior to adjudication. The Veteran has testified that he began experiencing symptoms of his heart disorder shortly after service. The post-service treatment records show that the Veteran has a present diagnosis. Where, as here, most of the Veteran's service treatment records are unavailable, VA has a heightened duty to assist. As the Veteran has not been afforded a VA examination in conjunction with his claims, remand is indicated. McLendon v. Nicholson, 20 Vet. App. 79 (2006). Accordingly, the case is REMANDED for the following action: Please note that the case has been advanced on the docket pursuant to 38 C.F.R. § 20.900 (c) (2017). 1. Obtain any outstanding, relevant treatment records and associate the records with the VBMS file. The Veteran is hereby notified that records of any treatment for these disorders, at any time since separation from service may be significant and should be identified, by the Veteran as part of this development. All attempts to obtain records must be documented in the claims folder. The Veteran's assistance in identifying and obtaining records should be requested as needed. 2. Then schedule the Veteran for VA examination to determine the nature and etiology of any heart disorder, blackouts, and ulcers. The electronic claims folders must be provided to and reviewed by the examiner in conjunction with the examination. All indicated tests and studies should be performed and all findings should be set forth in detail. The examiner must provide an opinion as to whether it is as least as likely as not that the Veteran's heart disorder and/or blackouts are etiologically related to any incident of active service. If the Veteran's heart disorder is determined to be related to service, the examiner should also provide an opinion as to whether his ulcers are secondary to his heart disorder or medications used for treatment of his heart disorder. If there are indications that the ulcers might otherwise be due to service, that should also be explained in detail. All opinions must be supported by a reasoned rationale. 3. Thereafter, readjudicate the remaining claims on appeal in light all additional evidence received. If any benefit sought on appeal is not granted, the Veteran and his attorney should be furnished with a Supplemental Statement of the Case (SSOC) and afforded an opportunity to respond before the file is returned to the Board for further appellate consideration. The appellant has the right to submit additional evidence and argument on the 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 2014). ______________________________________________ MICHAEL D. LYON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs