Citation Nr: 18141613 Decision Date: 10/11/18 Archive Date: 10/11/18 DOCKET NO. 15-15 256 DATE: October 11, 2018 ORDER Service connection for bilateral hearing loss is granted. Service connection for tinnitus is granted. The reduction to a noncompensable rating being improper, restoration to a 10 percent rating for service-connected painful scalp scar is granted, effective March 1, 2014. REMANDED Entitlement to service connection for a lumbar spine disability is remanded. Entitlement to service connection for diabetes mellitus, Type II, is remanded. FINDINGS OF FACT 1. The Veteran’s current bilateral hearing loss for VA purposes has been shown to be the result of noise exposure during military service. 2. The Veteran’s tinnitus has been shown to be the result of noise exposure during military service. 3. In a December 2013 rating decision, the RO reduced the rating for the Veteran’s service-connected painful scalp scar from 10 to 0 percent disabling from March 1, 2014. The 10 percent rating had been in effect for less than five years. 4. Improvement of the Veteran’s painful scalp scar to include under conditions of ordinary life is not shown by a preponderance of the evidence. CONCLUSIONS OF LAW 1. The criteria for service connection for bilateral hearing loss have been met. 38 U.S.C. §§ 1101, 1110, 1154(a); 38 C.F.R. §§ 3.303, 3.309, 3.385. 2. The criteria for service connection for tinnitus have been met. 38 C.F.R. §§ 1101, 1110, 1154(a); 38 C.F.R. §§ 3.159(a), 3.303, 3.309. 3. The reduction in the rating assigned for a painful scalp scar from 0 to 10 percent, effective March 1, 2014, was not proper; restoration of the 10 percent rating is warranted. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.105, 3.344, 4.118, Diagnostic Code (DC) 7800, 7804. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty military service from October 1967 to February 1968 and from August 1970 to October 1971. These matters come before the Board of Veterans’ Appeals (Board) from December 2013 and February 2014 rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). In the December 2013 rating decision, the RO, in pertinent part, reduced the Veteran’s disability rating for service-connected painful scalp scar from 10 to 0 percent, effective March 1, 2014. In the February 2014 rating decision, the RO, in pertinent part, denied service connection for bilateral hearing loss, tinnitus, lumbar degenerative disc and joint disease (lumbar spine disability), and diabetes mellitus, type II. The Veteran testified before the undersigned Veteran’s Law Judge (VLJ) in November 2016. A copy of the transcript has been reviewed and associated with the claims file. Service Connection Service connection will be granted for a disability resulting from an injury or disease contracted in the line of duty, or for aggravation of a pre-existing injury suffered or disease contracted in the line of duty, in the active military, naval, or air service. 38 U.S.C. § 1110, 1131; 38 C.F.R. § 3.303(a). Service connection requires evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Consistent with this framework, service connection is warranted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Where the Veteran asserts entitlement to a chronic disease but there is insufficient evidence of a diagnosis in service, service connection may be established under 38 C.F.R. § 3.303(b) by demonstrating a continuity of symptomatology since service, but an award solely on this basis is only permissible if the chronic disease is listed under 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection for hearing loss may be granted where there is credible evidence of acoustic trauma due to significant noise exposure in service, post-service audiometric findings meeting the regulatory requirements for hearing loss for VA purposes, and a medically sound basis upon which to attribute the post-service findings to the injury in service (as opposed to intercurrent causes). Hensley v. Brown, 5 Vet. App. 155, 159 (1993). For purposes of applying the laws administered by the VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 (Hz) is 40 decibels or greater, or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, 4000 Hz are 26 decibels or greater, or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b). 1. Entitlement to service connection for bilateral hearing loss; 2. Entitlement to service connection for tinnitus. The Veteran asserts that his bilateral hearing loss and tinnitus are the result of noise exposure incurred during military service. The evidence shows a current bilateral hearing loss disability for VA purposes and tinnitus. See 06/28/2012, VA Examination (diagnosing bilateral sensorineural hearing loss and tinnitus). Accordingly, present disabilities of bilateral hearing loss and tinnitus have been established by the evidence. A review of the Veteran’s DD-Form 214 and military personnel records indicate that his military occupational specialty (MOS) was a wheel vehicle repairman. He testified at the hearing and stated that he was surrounded by noise from the compressors, hand tools, and banging on hammers. Accordingly, in-service noise exposure has been established as consistent with the types, places, and circumstances of the Veteran’s active service. 38 U.S.C. § 1154. Having established a current disability and conceded in-service noise exposure, the remaining question is whether the Veteran’s bilateral hearing loss and tinnitus are due to noise exposure during his active military service. The Veteran’s complete service-treatment records from August 1970 to October 1971 are unavailable for review. His June 1967 and February 1968 hearing audiological examinations were normal. During the hearing, the Veteran testified that he started having problems hearing and noticed ringing in his ears in 1971. He started dating a woman in the health profession in 1984 and she told him that he should have his hearing checked. His hearing loss and tinnitus have continued since service. A VA examination was performed in June 2012. The examiner concluded that it was less likely than not that the Veteran’s hearing loss and tinnitus were incurred in service given that he had normal hearing at discharge. After a review of the evidence, the Board finds that the evidence is at least in equipoise as to whether the Veteran’s current bilateral hearing loss and tinnitus are related to noise exposure during his active military service. The Veteran is competent to describe what he experienced in service. Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2). In this regard, the Veteran is competent to testify regarding the in-service noise exposure. Furthermore, the Veteran stated that he has experienced hearing loss and tinnitus ever since service. The Veteran is competent to describe symptoms observable to his senses; as such, he is also competent to diagnose tinnitus. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also Charles v. Principi, 16 Vet. App. 370, 374 (2003) (stating that “ringing in the ears is capable of lay observation”). The Board also finds that his statements with respect to his continuity of symptomatology to be credible. See Buchanan v. Nicholson, 451 F.3d 1331, 1336-38 (Fed. Cir. 2006). The Board acknowledges the negative opinion provided by the June 2012 examiner. However, the Board gives no weight to this opinion. In this regard, the examiner based his opinion on the lack of hearing loss at the time of the Veteran’s separation from service. However, as discussed, the Veteran’s service-treatment records from August 1970 to October 1971, including his 1971 separation examination, are not associated with the claims file. The Board further notes that as sensorineural hearing loss and tinnitus (both organic disease of the nervous system) are chronic diseases under 38 C.F.R. § 3.309(a), service connection may be awarded solely based on evidence of continuity of symptomatology. Walker v. Shinseki, 708 F.3d 1331 ( Fed. Cir. 2013). In view of the foregoing, and in consideration of the credible lay statements, the Board finds that the evidence is at least in equipoise regarding the question of whether the Veteran’s current bilateral hearing loss and tinnitus are the result of military service. In cases where the evidence is in relative equipoise, the claimant prevails. See Gilbert v. Derwinski, 1 Vet. App. 49, 53-54 (1990). 3. Propriety of the reduction of the disability rating assigned for a painful scalp scar from 10 to 0 percent disabling prior to March 1, 2014. Specific legal standards govern whether the reduction in the rating for the Veteran’s painful scalp scar was justified by the evidence. A veteran’s disability rating will not be reduced unless an improvement in the disability is shown to have occurred. 38 U.S.C. § 1155. Where a disability rating has been continued for at least five years at the same level, under 38 C.F.R. § 3.344, if there have occurred changes in essential medical findings or diagnosis, that case is to be reviewed and adjudicated so as to produce the greatest degree of stability of disability evaluation. In determining the propriety of a previous rating, the entire record as to medical history should be considered to ascertain whether the most recent examination is indeed a full and complete depiction of the level of disability. 38 C.F.R. § 3.344(a). Likewise, in such cases, provided doubt remains, after according due consideration to all the evidence developed by the several items discussed in the preceding paragraph (section 3.344(a)), the rating agency will continue the rating in effect under specified procedures. 38 C.F.R. § 3.344(b). In this case, the 10 percent disability rating assigned to the Veteran’s painful scalp scar was in effect from September 28, 2010, to March 1, 2014, which is less than five years. Therefore, the provisions of 38 C.F.R. §§ 3.344(a) and (b), which govern the reduction of protected ratings in effect for five years or more, do not apply in this case. Accordingly, reexaminations disclosing improvement, physical or mental, in these cases will warrant reduction in rating. 38 C.F.R. § 3.344(c). The determination in a reduction rating case must include the proper application as to the standard of proof. In rating reduction cases, VA must establish, by a preponderance of evidence, that the reduction was warranted. Brown v. Brown, 5 Vet. App. 413, 421 (1993); Kitchens v. Brown, 7 Vet. App. 320, 324 (1995). A reduction in rating must be based upon review of the entire history of the disability. Brown, 5 Vet. App. at 420; see also 38 C.F.R. §§ 4.1, 4.2, 4.10. VA must then ascertain whether the evidence reflects an actual change in the disability and whether the examination reports reflecting such change are based on thorough and adequate examinations. Faust v. West, 13 Vet. App. 342, 349 (2000). Finally, it must be determined whether the improvement actually reflects an improvement in the veteran’s ability to function under the ordinary conditions of life and work. Brown, 5 Vet. App. at 421. There must be an actual improvement in the disability and not just a failure to meet the requirements of a rating under the currently assigned diagnostic code. In sum, in any rating-reduction case, VA must determine (1) whether the evidence reflects an actual change in the disability based upon review of the entire recorded history of the condition; (2) whether the examination reports reflecting such change are based upon thorough examinations; and (3) whether any improvement actually reflects an improvement in the veteran’s ability to function under the ordinary conditions of life and work. Murphy v. Shinseki, 26 Vet. App. 510 516-17 (2014) (citing Brown, 5 Vet. App. at 421; 38 C.F.R. §§ 4.1, 4.2, 4.10, 4.13) In the present case, the Veteran filed a claim for increased rating for his service-connected painful scalp scar in November 2010. He was provided a VA examination in February 2011, at which time he complained of itchiness over his scar. Physical examination of the scalp revealed a 2 cm X 0.3 cm left parieto-occipital scar, left-sided. The scar was hypopigmented and slightly painful to pressure. Otherwise, the scar was superficial. Based on the February 2011 examination findings, the RO increased the Veteran’s disability rating to 10 percent for his service-connected painful scalp scar. The Veteran was afforded subsequent VA examinations in June and December 2012. Physical examination of the scar revealed it as 5 X .2 cm. The examiners indicated that the scar was not painful. The December 2012 examiner indicated that he was not confident that he had found the lesion after examination. Based upon the June and December 2012 examination findings, the RO proposed to reduce the rating for the Veteran’s scalp scar from 10 to 0 percent in a January 2013 rating decision and notice letter. In December 2013, the RO implemented the rating reduction to 0 percent, effective March 1, 2014. The Veteran testified at the hearing in November 2016 and indicated that he experienced daily itchiness over his scar and on occasion the scar bled due to his scratching of the scar. He indicated that his symptoms have remained the same since he was initially given a 10 percent rating by the RO. After a review of the evidence, the Board finds that the June and December 2012 examinations did not show an improvement of the Veteran’s scar on his scalp. In this regard, there is no evidence that the scar reduced substantially in size. Furthermore, the Veteran testified at the hearing and indicated that he has experienced itchiness over the scar, which causes bleeding on occasion, and had experienced the same symptoms from the time of the February 2011 examination to the present. The Board acknowledges that the June and December 2012 examiners indicated that the Veteran’s scar was asymptomatic. However, the Board finds that Veteran is competent to describe the symptoms of his scar, including itchiness, and finds that his statements are credible. Furthermore, there is no evidence of an actual improvement in his scalp scar under the ordinary conditions of life. REASONS FOR REMAND 1. Entitlement to service connection for a lumbar spine disability is remanded. The Veteran has been diagnosed with degenerative arthritis of the spine and asserts it was incurred while working in the motor pool and lugging 40 pounds of tools from one vehicle to another. The Veteran submitted an April 1971 profile for a low back strain. He indicated that he had a second profile for his lower back in service but could not find the paperwork. As discussed, the Veteran’s service treatment records from August 1970 to October 1971 are unavailable. The Veteran acknowledges that he injured his lower back post-service in 1984 and 1989. However, he indicated that had back pain and treatment following service and prior to his work-related accidents. A VA examination was performed in January 2014, at which time the examiner diagnosed the Veteran with degenerative arthritis of the spine and subsequently concluded that his herniated disc was more likely related to post-military job injuries and not his remote back strain in 1971. The examiner reasoned that no x-rays were found in his service-treatment records and there was no indication that he needed follow up care or that his condition became chronic. After a review of the evidence, the Board finds that the January 2014 VA examination is insufficient to determine the present claim. In this regard, the Veteran was diagnosed with degenerative arthritis but the examiner only concluded that his herniated disc was not related to service. Furthermore, the Veteran’s complete service-treatment records are not associated with the claims file but the examiner relied on the lack of in-service follow up treatment and x-rays as a basis for concluding that the Veteran’s lumbar spine disability was not related to service. The Board finds that a new VA examination is warranted in order to assess the etiology of the Veteran’s lumbar spine disability. 2. Entitlement to service connection for diabetes mellitus, Type II is remanded. The Veteran asserts that he has been diagnosed with diabetes mellitus, type II, and it is related to his in-service exposure to Agent Orange. In this regard, VA has found that the Veteran had service in the Korean DMZ and herbicide exposure has been conceded. After a review of the evidence, the Board finds that there is conflicting evidence with regard to whether the Veteran has a current diagnosis of diabetes mellitus, type II. In this regard, the Veteran testified at the hearing and stated that he is currently receiving treatment for diabetes mellitus, type II, and is taking Metformin. VA treatment records dated in November 2012 and January 2014 note an active problem of diabetes. However, additional VA treatment records throughout the rating period on appeal indicate that he has hyperglycemia and takes Metformin for prediabetes. VA examinations performed in December 2013 and January 2014 indicate he has no official diagnosis of diabetes mellitus, type II. The Board finds that a remand is necessary in order for the Veteran’s updated VA and any private treatment records to be obtained and associated with the claims file. If and when these records are obtained and associated with the claims file, if they do not show a current diagnosis of diabetes mellitus, type II, the Board finds that a new VA examination is warranted in order to determine if the Veteran has a present diagnosis of diabetes mellitus, type II. The matters are REMANDED for the following actions: 1. Obtain and associate with the claims file the Veteran’s updated VA treatment records from November 2016 to the present. 2. Send a letter to the Veteran and his representative requesting that he provide sufficient information, including the medical provider’s name, location, and dates of treatment, and a signed dated authorization, for all relevant private treatment relating to diabetes mellitus, type II, and lumbar spine disabilities. All efforts to obtain records should be associated with the claims file and the Veteran and his representative should be provided notification if any of the listed records are unavailable pursuant to 38 C.F.R. § 3.159(e). 3. After completion of #1 and #2, schedule the Veteran for a VA examination to determine the nature and etiology of his lumbar spine disability. The claims folder, including a copy of this remand, must be made available to the examiner and such review should be noted in the examination report. The examiner should identify and discuss any lumbar spine disability found on examination or identified during the pendency of this claim, November 2011, and respond to the following: is it at least as likely as not (probability of at least 50 percent) that the Veteran’s lumbar spine disability had its onset in and/or is otherwise related to his period of active service, including his documented lumbar spine strain? In this regard, attention is called to the Veteran’s post-service work accidents relating to his lumbar spine. The examiner should understand that as long as some level of disability existed prior to the intercurrent incidents, then a positive nexus to service should be made. Solely for the purposes of future rating, if a nexus to service is made, the examiner should then attempt to estimate the percentage of symptoms attributable solely to the in-service injuries. 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. Specifically, the examiner must discuss the lay statements contained in the claims file and his hearing testimony in November 2016. The Veteran’s complete service-treatment records are unavailable. Accordingly, the examiner should not draw any negative opinion based on the lack of in-service complaints or treatment for his lumbar spine disability. 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. 4. After completion of #1 and #2, and if any additional VA treatment or private treatment records do not indicate a current diagnosis of diabetes mellitus, type II, schedule a VA examination to determine if the Veteran has a current diagnosis. The claims folder, including a copy of this remand, must be made available to the examiner and such review should be noted in the examination report. The examiner should perform any and all appropriate testing and respond to the following: is it at least as likely as not (probability of at least 50 percent) that the Veteran has a current diagnosis of diabetes mellitus, type II? Please note that current diagnosis means any time during the pendency of this appeal, or from November 2011 to the present. The examiner must provide a comprehensive rationale for each opinion provided. Specifically, the examiner should discuss the various notations of a current diagnosis of diabetes in the Veteran’s VA treatment records. 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 S. Hurley, Associate Counsel