Citation Nr: 1806438	
Decision Date: 02/01/18    Archive Date: 02/14/18

DOCKET NO.  12-32 794	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Nashville, Tennessee


THE ISSUES

1.  Whether the reduction in the disability rating for service-connected bilateral hearing loss from 20 to 10 percent disabling was proper.

2.  Entitlement to a disability rating in excess of 10 percent for service-connected bilateral hearing loss. 

3.  Entitlement to service connection for a left hand disability. 


REPRESENTATION

Appellant represented by:	The American Legion


WITNESS AT HEARING ON APPEAL

The Veteran

ATTORNEY FOR THE BOARD

A. Yaffe, Associate Counsel


INTRODUCTION

The Veteran served on active duty from July 1965 to July 1968, from July 1971 to April 1974, and from December 1981 to December 1985. 

This matter comes before the Board of Veterans' Appeals (Board) from February 2011, May 2011, and January 2012 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee, and Montgomery, Alabama.  

In May 2017, the Veteran testified in a videoconference hearing before the undersigned Veterans Law Judge.  A copy of the hearing transcript is of record. 

The issues of entitlement to a disability rating in excess of 10 percent for bilateral hearing loss and service connection for a left hand disability are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ).


FINDINGS OF FACT

1.  In a February 2011 rating decision, the RO increased the rating for the Veteran's service-connected bilateral hearing loss from 10 percent to 20 percent, effective November 17, 2010.

2.  After the Veteran submitted a timely notice of disagreement (NOD) to the February 2011 rating decision, the RO in a May 2011 rating decision reduced the rating for the Veteran's service-connected bilateral hearing loss from 20 percent to 10 percent.
3.  The RO's action in reducing the rating for the Veteran's service-connected bilateral hearing loss from 20 percent to 10 percent did not result in a reduction of compensation payments or overall combined rating. 

4.  The objective medical evidence of record at the time of the May 2011 rating decision reflects that the February 2011 rating decision, which increased the Veteran's bilateral hearing loss to 20 percent, was an adjudicative error, and his bilateral hearing loss has been manifested by hearing acuity no worse than Level VI in the right ear and Level III in the left ear. 
 

CONCLUSION OF LAW

The reduction of the disability rating for the Veteran's bilateral hearing loss from 20 percent to 10 percent was proper, and restoration of the 20 percent disability rating is not warranted.  38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.103, 3.105, 3.344, 4.1-4.10, 4.85, 4.86, Diagnostic Code 6100 (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

Duties to Notify and Assist

In this case, neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist.  See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument).




Reduction Claim - Applicable Law & Analysis

As a preliminary matter, the Board finds that the procedural safeguards outlined in section 3.105(e) are not for application in this case.  As delineated above, the RO's action in reducing the rating for the Veteran's service-connected hearing loss from 20 percent to 10 percent did not result in a reduction of compensation payments.  Under these circumstances, compliance with the pre-reduction procedural safeguards delineated in 38 C.F.R. § 3.105(e) was not required.  See VAOPGCPREC 71-91 (Nov. 7, 1991); see also Stelzel v. Mansfield, 508 F.3d 1345, 1347-49 (Fed. Cir. 2007); O'Connell v. Nicholson, 21 Vet. App. 89, 92 (Vet. App. 2007).  

Evaluations of bilateral defective hearing range from non-compensable to 100 percent based on organic impairment of hearing acuity as measured by the results of controlled speech discrimination tests together with the average hearing threshold level measured by pure tone audiometry tests in the frequencies of 1000, 2000, 3000, and 4000 cycles per second (Hertz).  To evaluate the degree of disability from bilateral service-connected defective hearing, the schedule establishes 11 auditory hearing acuity levels designated from Level I for essentially normal hearing acuity through Level XI for profound deafness.  38 C.F.R. §§ 4.85, Tables VI and VII, Diagnostic Codes 6100 (2017).  Disability ratings for hearing loss are derived from a mechanical application of the rating schedule to the numeric designations resulting from audiometric testing.  See Lendenman v. Principi, 3 Vet. App. 345 (1992).

An exceptional pattern of hearing impairment occurs when the pure tone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) is 55 decibels or more.  In that situation, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or Table VIA, whichever results in the higher numeral.  38 C.F.R. § 4.86(a).  Further, when the average pure tone threshold is 30 decibels or less at 1000 Hertz, and 70 decibels or more at 2000 Hertz, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or Table VIA, whichever results in the higher numeral.  That numeral will then be elevated to the next higher Roman numeral.  Each ear will be evaluated separately.  38 C.F.R. § 4.86(b).

Table VIa will be used when the examiner certifies that the use of speech discrimination test is not appropriate because of language difficulties, inconsistent speech discrimination scores, etc., or when indicated under the provisions of 38 C.F.R. § 4.86.  38 C.F.R. § 4.85(c).

Turning to the evidence, the Veteran underwent a VA audiology examination in February 2011.  Pure tone thresholds, in decibels, were as follows:




HERTZ



AVG
1000
2000
3000
4000
RIGHT
73
60
70
75
85
LEFT
74
50
65
80
100

Speech recognition score was 84 percent in the right ear and 88 percent in the left ear.  

Here, applying the February 2011 audiometric result to Table VII, the Veteran had Level III hearing acuity in the right ear and Level III in the left ear, resulting in a non-compensable rating.  38 C.F.R. § 4.85, Diagnostic Code 6100.  

Nevertheless, the right ear meets the criteria for an exceptional pattern of hearing loss under Table VIA, because the pure tone threshold at each of the four specified frequencies is 55 decibels or more.  Under Table VIA, the Veteran's right ear is rated at Level VI, and when combined with his left ear under Table VII, the rating is consistent with a 10 percent disability. 

As noted above, a mechanical application of the rating criteria to the audiometric data contained in the February 2011 examination shows that a 10 percent rating was warranted.  The February 2011 rating decision arrived at its conclusion that the Veteran's hearing impairment warranted a 20 percent evaluation based on a misstatement of the Maryland CNC test results in the left ear (stated as 80 percent instead of 88 percent), which led to a hearing acuity Level of V instead of Level III. 

The May 2011 rating decision issued only three months later amended this error.  Therefore, a restoration of the erroneously awarded 20 percent evaluation for bilateral hearing loss is not warranted.

The Board reviewed the Veteran's VA treatment records; however, those did not provide audiogram results reflecting a more severe bilateral hearing loss.  Furthermore, the Board has considered the Veteran's credible testimony regarding the severity of his hearing loss symptoms.  The Board notes that while the Veteran is competent to testify regarding these symptoms as they are within the knowledge and observation of lay witnesses, compensation for hearing loss can only be obtained as a result of the mechanical application of the criteria under Diagnostic Code 6100.  This evidence can only be shown by an examination conducted by a state-licensed audiologist and must include the Maryland CNC speech recognition test and pure tone audiometry test.  

However, as will be discussed in the remand portion of this decision, the Board finds that although the reduction was proper, an additional VA examination is necessary to determine the current severity of the disability. 

ORDER

The reduction of the rating from 20 to 10 percent for bilateral hearing loss was proper; restoration of the previously assigned 20 percent rating for bilateral hearing loss is denied.


REMAND

Remand is necessary in order to provide the Veteran with VA examinations pertaining to his increased rating claim for bilateral hearing loss and service connection claim for a left hand disability. 
As determined above, the reduction of the Veteran's rating for bilateral hearing loss to 10 percent was proper.  However, the Veteran should be afforded a new examination to determine the current severity of his hearing loss, since the last examination was conducted over six years ago.  Moreover, after the Board hearing, the Veteran submitted additional VA primary care notes that show an impression of significantly impaired hearing and noted his use of hearing aids.  The examiner noted that his hearing had not been recently evaluated.  It appears that the visit was for health maintenance and a hearing aid check, rather than a full audiology examination.  

In addition, the Veteran should be afforded a VA examination in connection with his left hand claim.  Notably, the RO determined that the Veteran's service treatment records (STRs) were silent as to any reports of a left hand disability and the medical evidence did not show a current diagnosis of a left hand disability; however, during his May 2017 hearing, the Veteran submitted additional STRs, which include various records of an in-service left hand injury, a November 1971 letter purportedly authored by the Veteran to his mother in which he indicates that he had injured his arm/hand and was having difficulty writing. He also submitted 1971 nursing notes showing a hospital admission at the 85th Evac Hospital describing treatment, as relevant, of the left hand, the thumb in particular.  Also, a November 1971 clinical record cover sheet indicates a hospital admission for multiple abscesses.  The Veteran has also stated that he underwent surgery for his left hand, post-service.  A VA examination should be afforded to him to determine the likely etiology of any current left hand disability.

Accordingly, the case is REMANDED for the following action:

1.  Obtain and associate with the claims file any outstanding VA medical evidence, specifically to include 2011 records and beyond from the VA facility in Bay Pines, Florida, documenting left hand treatment/procedure.  

2.  Ensure that the Veteran's STRs, including hospital records, are complete.  In May 2017, the Veteran submitted copies of STRs/hospital records that he received from NPRC and those describe left hand/thumb hospital treatment.

3.  Then, provide the Veteran with a new VA audiological examination in order to accurately determine the current severity of his service-connected left ear hearing loss.

All indicated tests and studies, including a pure tone audiometry test and a speech recognition test (Maryland CNC test), shall be conducted, and the results of such testing shall be included in the examination report.  

The examiner must also fully describe the functional effects of the Veteran's hearing disability.

The examiner should provide a complete rationale for any proffered opinions.  

4.  Provide the Veteran with a VA examination to identify the nature and etiology any left hand disability. 

After a complete review of the claims file, the examiner should:

(a)  Specifically identify all disabilities of the left hand/thumb, including arthritis.  

(b) For each left hand disability demonstrated since the beginning of the claim, even if since resolved, the examiner is asked to respond to the following: 

Provide an opinion, for each left hand disability, on whether it had its onset during active service or is otherwise related to it, including the documented November 1971 injury to left hand/thumb.

Your attention is called to the following: 

(i)  Clinical records from 85th Evac Hospital dated November 1971 showing complaints and treatments of a left hand injury, to include left thumb swelling, tenderness, induration of 1st web space, multi abscesses on dorsal and dorsum of left thumb, inability to flex thumb, incision and drainage of left thumb, a note showing the Veteran was alert when awakened after a procedure done on his left thumb, a note indicating the left thumb will need graft, and note indicating the Veteran was instructed to do no field duties for a full week, soak his hand in warm water, and practice flexing his thumb.  See VBMS entry dated 5/12/2017 titled "Medical Treatment Record - Government Facility" on pages 19-22, 24, 27, and 34-39.

(ii) Report of Medical History (Medical Board) refers to a November 1971 diagnosis of cellulitis (see Questions 18 and 19).

(iii)  The Veteran's lay assertions during his May 2017 hearing testimony as to the symptoms and treatment he received in-service for his left thumb/hand.

(iv)  VA Bay Pines, Florida records dated June 2011 documenting left hand pain likely arthritis and consultation recommended.

The examiner should provide a complete rationale for any proffered opinions.  

5.  Thereafter, readjudicate the increased rating claim for bilateral hearing loss and service connection claim for a left hand disability.  If any benefit is not granted, the Veteran and his representative should be furnished with a supplemental statement of the case, with a copy to his representative, 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 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. §§ 5109B, 7112 (2012).



______________________________________________
S. B. MAYS
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs