Citation Nr: 1806806	
Decision Date: 02/01/18    Archive Date: 02/14/18

DOCKET NO.  08-22 016A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Muskogee, Oklahoma


THE ISSUES

1.  Whether a rating reduction from 20 percent to noncompensable, for bilateral hearing loss, effective April 1, 2010, was proper.

2.  Entitlement to service connection for a liver disorder, to include as secondary to service-connected renal dysfunction/nephropathy.

3.  Entitlement to service connection for a skin disorder.

4.  Entitlement to an increased rating for ischemic heart disease, currently evaluated as 30 percent disabling.

5.  Entitlement to an increased rating for type II diabetes mellitus with onychomycosis and impotence, currently evaluated as 20 percent disabling.

6.  Entitlement to an increased rating for residuals of a right ankle fracture, currently evaluated as 20 percent disabling.

7.  Entitlement to a compensable rating for bilateral hearing loss prior to April 2, 2007, and in excess of 20 percent from April 2, 2007 forward.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

Michael Sanford, Counsel


INTRODUCTION

The Veteran served on active duty from November 1966 to October 1968.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from August 2007 and March 2012 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma.

In June 2016, the Board reopened the claims for service connection for a liver disorder and a skin disorder.  The Board also found that a timely notice of disagreement as to the issue of entitlement to a higher initial rating for renal dysfunction/nephropathy had not been submitted.  Finally, the Board remanded the reopened claims for service connection for a liver disorder and a skin disorder, as well as the claims for increased ratings for ischemic heart disease, type II diabetes mellitus, a right ankle disability, and bilateral hearing loss.

The Board also remanded the issue of whether the reduction in the rating for bilateral hearing loss for issuance of a statement of the case (SOC) pursuant to 38 C.F.R. § 19.9(c) (2017) (codifying Manlincon v. West, 12 Vet. App. 238, 240-41 (1999)).  An SOC was issued in July 2016 and the Veteran perfected an appeal of that issue in August 2016.  Thus, that matter is properly before the Board. 

The issues of service connection for a liver disorder and a skin disorder and the claims for increased ratings for ischemic heart disease, type II diabetes mellitus, a right ankle disability and bilateral hearing loss are addressed in the REMAND portion of the decision below and REMANDED to the Agency of Original Jurisdiction (AOJ).


FINDINGS OF FACT

1.  In a January 2010 rating decision, the RO reduced the Veteran's bilateral hearing loss from 20 percent to noncompensable effective, April 1, 2010.

2.  The reduction of the 20 percent rating for the Veteran's bilateral hearing loss was not based on improvement in the Veteran's ability to function under the ordinary conditions of life and work.


CONCLUSION OF LAW

The reduction in rating for a bilateral hearing loss from 20 percent to noncompensable was not proper.  38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.105(e), 4.71a, Diagnostic Codes (DCs) 5003, 5243 (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

Duties to Notify and Assist

To the extent the actions taken herein below are favorable to the Veteran and considered a full grant of benefits requested with respect to the only issue decided herein, further discussion of the VCAA is not necessary at this time.

Merits

Where a reduction in a rating of a service-connected disability is considered warranted and the lower rating would result in a reduction or discontinuance of compensation payments currently being made, a rating proposing the reduction or discontinuance must be prepared setting forth all material facts and reasons.  VA must also notify the veteran that he or she has 60 days to present additional evidence showing that compensation should be continued at the present level.  38 C.F.R. § 3.105(e) (2017).

The RO complied with the due process protections of 38 C.F.R. § 3.105(e).

Nevertheless, the Court has stated that certain regulations "impose a clear requirement that VA rating reductions, as with all VA rating decisions, be based upon review of the entire history of the veteran's disability."  Brown v. Brown, 5 Vet. App. 413, 420 (1993) (referring to 38 C.F.R. §§ 4.1, 4.2, 4.13).  38 C.F.R. § 3.344(c), applicable to ratings such as this one in effect for less than 5 years, requires improvement before an evaluation is reduced.  Implicit in the regulations is that any improvement must be of such a nature as to warrant a change in the evaluation.  The Brown case articulated three questions that must be addressed in determining whether a rating reduction was warranted by the evidence.  First, a rating reduction case requires ascertaining "whether the evidence reflects an actual change in the disability."  Second, it must be determined whether the examination reports reflecting such change were based upon thorough examinations.  Third, 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.

In the present case, the Veteran contends that the reduction was improper because his hearing loss had worsened, rather than improved.

The Board determines that the reduction in rating for the Veteran's bilateral hearing loss was not proper.  A review of the RO's January 2010 rating decision, which pertained to the reduction, demonstrates that the RO appears to have essentially analyzed the issue of reduction of the 20 percent evaluation just as it would a claim for an increased rating.  Specifically, the RO did not address whether there was "an actual improvement in the Veteran's ability to function under the ordinary conditions of life and work."  Brown, 5 Vet. App. at 421.  This is furthered by the July 2016 SOC, which treated the claim as an increased rating claim, as well.  The evidence does not reflect that there was any improvement in the Veteran's ability to function under the ordinary conditions of life and work.  In fact, the Veteran's competent, credible lay statements indicated that his hearing worsened, notwithstanding any improvement in audiometric test scores.

The Court has stated that both decisions by the RO and by the Board that do not apply the provisions of 38 C.F.R. § 3.344, when applicable, are void ab initio (i.e., at their inception).  Brown, 5 Vet. App. at 413; see also Hayes v. Brown, 9 Vet. App. 67, 73 (1996) (where VA reduces the appellant's rating without observing applicable laws and regulations the rating is void ab initio and the Court will set aside the decision).

Since the rating decision that accomplished the reduction of the 20 percent rating for the Veteran's service-connected bilateral hearing loss did not properly apply the provisions of 38 C.F.R. § 3.344, the reduction is void.  The appropriate remedy in this case is a restoration of the 20 percent rating.  See Hayes, 9 Vet. App. at 73   (improper reduction reinstated effective date of reduction).


ORDER

Restoration of a 20 percent rating for bilateral hearing loss, effective April 1, 2010, is granted, subject to the rules and regulations governing the award of monetary benefits.




REMAND

Initially, the Board notes that the Veteran was hospitalized at a VA Medical Center (VAMC) multiple in late 2017.  Only VA treatment records dated until February 2017 are of record.  As pointed out by the Veteran's representative in the December 2017 brief, those VA treatment records could be relevant to the claims remaining on appeal.   The Board agrees and these matters must be remanded to obtain those outstanding VA treatment records.  See Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992).

Regarding the claims for service connection for a liver disorder and for increased ratings for diabetes mellitus and ischemic heart disease, these matters were remanded for VA examinations.  However, an August 2016 record shows that the Veteran did not show up for his scheduled examinations.  To date, he has offered no explanation for his failure to attend his scheduled examinations.  In light of the necessity to remand these matters for outstanding VA treatment records and the Veteran's hospitalizations in 2017, suggesting that the Veteran did not attend the examinations because of poor health, the Board will provide the Veteran another opportunity to attend VA examinations for his claims for increased ratings for diabetes mellitus and ischemic heart disease.  In this regard, the Board notes that, when a claimant, without good cause, fails to report for an examination scheduled in conjunction with a claim for increased rating, the claim shall be denied. 38 C.F.R. § 3.655(b) (2017).  Regarding the claim for service connection, the Board will seek a medical opinion as the duty to assist regulation pertains to providing "medical examinations or obtaining medical opinions."  38 C.F.R. § 3.159(c)(4) (2017) (emphasis added).

Regarding the claim for service connection for a skin disability, as noted in the June 2016 Board decision, a December 2010 treatment record indicated that the Veteran reported a rash all over and the clinician noted areas of erythematous papules on the right hand and scattered areas on the chest.  In the past, the Veteran has reported experiencing skin problems during service.  See October 2007 Board Decision.  This evidence is sufficient to trigger VA's duty to seek a medical opinion regarding the etiology of any skin disability.  McLendon v. Nicholson, 20 Vet. App. 79, 81   (2006); see also 38 U.S.C. § 5103A (d)(2); 38 C.F.R. § 3.159(c)(4).

Regarding the claim for an increased rating for bilateral hearing loss, the Board has restored the 20 percent rating from April 1, 2010, forward.  The Veteran was last afforded a VA examination to determine the severity of his bilateral hearing loss in August 2009, nearly a decade ago.  In a September 2009 VA Form 9, the Veteran reported that his hearing had worsened.  As such, the Board finds that a new VA examination is necessary to properly assess the severity of the Veteran's hearing loss.  See McLendon, 20 Vet. App. at 81.

Accordingly, the case is REMANDED for the following action:

1. Obtain outstanding VA treatment records, to include records dated since February 2017, if any.

2.  Request an opinion as to the etiology of the Veteran's liver disability from a VA physician.

The Veteran's VA claims folder should be made available to the physician for review in conjunction with this opinion.

The physician should address the following:

(a)  Identify all liver disabilities, including cirrhosis.

(b)  Whether it is at least as likely as not (at least a 50 percent probability) that any identified liver disability is in part caused by or related to the Veteran's active military service?

(c)  Is it at least as likely as not (at least a 50 percent probability) that any identified liver disability was caused by the Veteran's service-connected renal dysfunction/nephropathy?

(d)  Is it at least as likely as not (at least a 50 percent probability) that any identified liver disability was aggravated (i.e. made worse) by the Veteran's service-connected renal dysfunction/nephropathy?

The physician should provide an explanation for all conclusions reached.  As part of his or her explanation, the examiner should discuss any pertinent lay statements.

3.  Request an opinion as to the etiology of the Veteran's skin disability from a VA clinician.

The Veteran's VA claims folder should be made available to the clinician for review in conjunction with this opinion.

The clinician should address the following:

(a)  Identify all skin disabilities, to include erythematous papules.

(b)  Whether it is at least as likely as not (at least a 50 percent probability) that any identified skin disability is in part caused by or related to the Veteran's active military service?

The physician should provide an explanation for all conclusions reached.  As part of his or her explanation, the examiner should discuss any pertinent lay statements, to include the Veteran statement that he began experiencing skin problems in service.

4.  Schedule the Veteran for a VA examination by an audiologist to determine the current nature and severity of his hearing loss disability.  The claims file, to include a copy of this Remand, must be sent to the examiner for review; consideration of such should be reflected in the completed examination report.  All tests and studies deemed necessary by the examiner must be conducted. 

All pertinent pathology should be noted in the evaluation report in accordance with the current disability benefits questionnaire.

5.  Schedule the Veteran for a VA examination to determine the current nature and severity of his ischemic heart disease.  The claims file, to include a copy of this Remand, must be sent to the examiner for review; consideration of such should be reflected in the completed examination report.  All tests and studies deemed necessary by the examiner must be conducted. 

All pertinent pathology should be noted in the evaluation report in accordance with the current disability benefits questionnaire.

6.  Schedule the Veteran for a VA examination to determine the current nature and severity of his type II diabetes mellitus with onychomycosis and impotence.  The claims file, to include a copy of this Remand, must be sent to the examiner for review; consideration of such should be reflected in the completed examination report. All tests and studies deemed necessary by the examiner must be conducted. 

All pertinent pathology should be noted in the evaluation report in accordance with the current disability benefits questionnaire.

7.  With regard to the VA examinations, the Veteran is informed that when a claimant, without good cause, fails to report for an examination scheduled in conjunction with a claim for increased rating, the claim shall be denied. 38 C.F.R. § 3.655(b).

8.  If any benefit sought on appeal remains denied, the AOJ should issue a supplemental statement of the case. After the Veteran is given an opportunity to respond, the case should be returned to the Board.

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. §§ 5109B, 7112 (2012).




______________________________________________
Jonathan Hager
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs