Citation Nr: 19190895 Decision Date: 12/03/19 Archive Date: 12/03/19 DOCKET NO. 19-08 439 DATE: December 3, 2019 ORDER Reduction of the rating for bilateral hearing loss was improper and the 50 percent rating is restored. Entitlement to benefits pursuant to 38 U.S.C. § 1151 for surgical treatment of the right hand/wrist is denied. REMANDED Entitlement to service connection for a right hand/wrist disability is remanded. FINDINGS OF FACT 1. Although the evidence of record at the time of the reduction in the Veteran's hearing loss disability rating demonstrated improvements in the results of audiometric tests, the evidence did not establish an actual improvement in his ability to function under the ordinary conditions of life and work. 2. The evidence of record does not support a finding that the Veteran sustained any additional disability resulting from carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of the VA in treating the Veteran's right hand/wrist disability resulting from an event not reasonably foreseeable. CONCLUSIONS OF LAW 1. The criteria for reducing the Veteran's evaluation from 50 percent to 40 percent for bilateral hearing loss, effective October 26, 2018, have not been met; the prior 50 percent rating is restored. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.105, 3.344(c), 4.1, 4.2, 4.10, 4.85, 4.86; Diagnostic Code 6100. 2. The criteria for entitlement to benefits pursuant to 38 U.S.C. § 1151 for surgical treatment of the right hand/wrist have not been met. 38 U.S.C. §§ 1151, 5107; 38 C.F.R. §§ 3.361, 3.1000. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active military service from June 1965 to March 1969. 1. Reduction of the rating for bilateral hearing loss was improper and the 50 percent rating is restored. In October 2018, the Veteran underwent a VA examination for his claim for service-connection for tinnitus. Based on that examination, the Regional Office (RO) issued a rating decision granting the claim for tinnitus at a 10 percent evaluation effective September 29, 2017, and reducing the Veteran’s 50 percent evaluation for bilateral hearing loss to 40 percent effective October 26, 2018 based on a finding in that examination that the Veteran’s hearing had improved. A Veteran's disability rating shall not be reduced unless an improvement in the disability is shown to have occurred. 38 U.S.C. § 1155. Where a reduction in an evaluation of a service-connected disability is considered warranted and the lower evaluation 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, and the RO must notify the veteran that he has 60 days to present additional evidence showing that compensation should be continued at the present level. The Veteran is also to be informed that he may request a predetermination hearing, provided that the request is received by VA within 30 days from the date of the notice. When the RO reduces a rating without following the applicable regulations, the reduction is void ab initio. Greyzck v. West, 12 Vet. App. 288, 292 (1999). However, where a rating reduction does not involve reduction in the overall rate of compensation payable to a beneficiary, the due process protections of 38 C.F.R. § 3.105(e) do not apply. See VAOPGCPREC 71-91 (Nov. 1991); Stelzel v. Mansfield, 508 F.3d 1345, 1347-49 (Fed. Cir. 2007) (holding that provisions of §3.105(e) do not apply when there is no change in the overall disability rating). Based on the plain language of section 3.105(e), there must not only be a reduction in evaluation of a service-connected disability or employability status, but also a reduction and discontinuance of compensation payments currently being made. In the instant case, the Board finds that the RO did not comply with the procedural requirements of 38 C.F.R. § 3.105(e) in reducing the Veteran's disability rating. However, such notice is not required in this Veteran's case. The due process requirements of 38 C.F.R. § 3.105(e) serve to protect the Veteran from financial hardship from a sudden reduction in compensation. At the time that the RO issued the October 2018 rating decision, the combined evaluation for the Veteran's service-connected disabilities was 50 percent. Despite the rating reduction, the Veteran's overall compensation remained at the 50 percent rate; thus, the lack of notice prior to the reduction, as typically required by 38 C.F.R. § 3.105(e) does not, in this case, void the reduction. See VAOPGCPREC 71-91 (Nov. 1991). In cases where a rating has been in effect for five years or more, the rating agency must make reasonably certain that the improvement will be maintained under the conditions of ordinary life even if material improvement in the physical or mental condition is clearly reflected. Kitchens v. Brown, 7 Vet. App. 320 (1995). A rating that has been in effect for five years or more may not be reduced on the basis of only one examination in cases where the disability is the result of a disease subject to periodic or episodic improvement. 38 C.F.R. § 3.344 (a). The five-year period is calculated from the effective date of the rating to the effective date of the reduction. Brown v. Brown, 5 Vet. App. 413 (1993). If doubt remains, after according due consideration to all the evidence, the rating agency will continue the rating in effect. 38 C.F.R. § 3.344(b). The above requirements do not apply to ratings that have not continued for long periods of five years or more at the same level or to disabilities which have not become stabilized and are likely to improve. Rather, in such cases, reexaminations disclosing improvement, physical or mental, in those disabilities will warrant a rating reduction. 38 C.F.R. § 3.344(c). The 50 percent disability rating had been assigned by the RO in a January 2018 rating decision and was effective September 29, 2017. Thus, the rating had been in effect for less than five years and the provisions of 38 C.F.R. § 3.344 do not apply. However, in Brown v. Brown, 5 Vet. App. 413, 421 (1993), the Court identified general regulatory requirements which are applicable to all rating reductions. Pursuant to 38 C.F.R. § 4.1, it is essential, both in the examination and in the evaluation of the disability, that each disability be viewed in relation to its history. Brown, 5 Vet. App at 420. Similarly, 38 C.F.R. § 4.2 establishes that "[i]t is the responsibility of the rating specialist to interpret reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of the disability present." Id. Furthermore, per 38 C.F.R. § 4.13, the rating agency should assure itself that there has been an actual change in the condition, for better or worse, and not merely a difference in the thoroughness of the examination or in use of descriptive terms. Additionally, as mentioned, in any rating reduction case, not only must it be determined that an improvement in a disability has actually occurred, but that such improvement reflects improvement in ability to function under ordinary conditions of life and work. The burden of proof is on VA to establish that a reduction is warranted by a preponderance of the evidence. In considering the propriety of a reduction, the Board must focus on the evidence of record available to the RO at the time the reduction was effectuated, although post-reduction medical evidence may be considered for the limited purpose of determining whether the condition has demonstrated actual improvement. Dofflemyer v. Derwinski, 2 Vet. App. 277 (1992). The Veteran's bilateral hearing loss disability has been rated under Diagnostic Code 6100. 38 C.F.R. § 4.85. Ratings for hearing loss are determined in accordance with findings obtained on audiometric evaluation. Ratings for hearing impairment range from 0 percent to 100 percent based on organic impairment of hearing acuity, as measured by the results of the controlled speech discrimination tests, together with the average hearing threshold level, as measured by pure tone audiometry tests in the frequencies 1000, 2000, 3000, and 4000 cycles per second. To evaluate the degree of disability from hearing impairment, the rating schedule establishes eleven auditory acuity levels designated from Level I for essentially normal acuity through Level XI for profound deafness. Diagnostic Code 6100. Hearing tests are to be conducted without hearing aids, and the results of the testing are applied to Table VI and Table VII. 38 C.F.R. § 4.85. When the puretone threshold at each of the four specified frequencies of 1000, 2000, 3000, and 4000 Hertz is 55 decibels or more, 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. Each ear will be evaluated separately. 38 C.F.R. § 4.86(a). When the puretone 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). Factual Background and Analysis A January 2018 rating decision granted service connection for bilateral hearing loss with an evaluation of 50 percent, effective September 27, 2017 based on a November 2017 VA examination which showed a Maryland CNC speech recognition score of 44 percent in the right ear and 60 percent in the left ear. The November 2017 examination revealed the following puretone threshold levels: Frequency 1000 Hz 2000 Hz 3000 Hz 4000 Hz Average Right 55 50 70 80 63.75 Left 80 80 85 90 83.75 Since the puretone thresholds for both ears met the definition of an exceptional pattern of hearing impairment, application of Table VI resulted in a numeric designation of VIII for both ears, which resulted in the higher numeral for both ears as compared to Table VIa, warranting a 50 percent rating under Table VII. The Veteran’s October 2018 VA examination showed a Maryland CNC speech recognition score of 40 percent in the right ear and 76 percent in the left ear. The October 2018 examination revealed the following puretone threshold levels: Frequency 1000 Hz 2000 Hz 3000 Hz 4000 Hz Average Right 40 40 65 75 55 Left 70 75 80 85 78 The puretone thresholds for the right ear do not meet the definition of an exceptional pattern of hearing impairment. Thus, Table VI resulted in a numeric designation of VIII. The puretone thresholds for the left ear met the definition of an exceptional pattern of hearing impairment, and an application of Table VIa resulted in a numeric designation of VII, which resulted in the higher numeral for left ear as compared to Table VI, warranting a 40 percent rating under Table VII. The October 2018 VA examination demonstrated improvement in hearing threshold levels for both ears and speech discrimination in the left ear. However, the examiner opined that the Veteran’s hearing loss impacts ordinary conditions of daily life including his ability to work. The Veteran stated during the examination that he cannot hear without his hearing aids. This is consistent with the examiner’s opinion in the November 2017 VA examination, and consistent with the Veteran’s statements at that time. The Board finds that the October 2018 examination did not demonstrate an actual improvement in the Veteran's ability to function, as the examinations show the same type of impact on the ordinary conditions of daily life that were noted on the Veteran's November 2017 VA examination. Further, there is no evidence of record indicating that the Veteran has experienced an actual increase in hearing acuity that reflects improvement in his ability to function under ordinary conditions of life and work. He has submitted testimony indicating that he continues to suffer from hearing loss and has difficulty in communicating as a result. The Veteran is considered to be competent as a lay person to report what comes to him through his senses, including experiencing hearing difficulties. Layno v. Brown, 6 Vet. App. 465 (1994). Accordingly, his lay statements provide probative evidence in support of the appeal. Additionally, VAMC treatment records document continued use of hearing aids since August 2016. Additionally, the Veteran challenged the adequacy of the October 2018 VA examination in his Form 9. Medical examinations for the purpose of reducing a disability rating, in particular, must be full and complete. 38 C.F.R. §§ 3.344(a), 4.2; Faust v. West, 13 Vet. App. 342, 350 (2000). The Board agrees with the Veteran’s statement that the October 2018 VA examiner did not make any medical findings establishing an actual improvement in the Veteran’s ability to function under ordinary conditions of life and work. Thus, the October 2018 examination was inadequate to support a rating reduction. Resolving reasonable doubt in the Veteran's favor, the Board finds that the reduction of the rating for bilateral hearing loss was not proper because any improvement observed did not reflect improvement in the ability to function in the ordinary course of life. Because such a finding is an essential requirement for a rating reduction, see Brown, 5 Vet. App. at 421, the Board will reinstate the 50 percent rating in effect prior to the reduction. 2. Entitlement to benefits pursuant to 38 U.S.C. § 1151 for surgical treatment of the right hand/wrist is denied. The record reflects that the Veteran underwent a right wrist lunate excision and partial fusion in November 2003 at the Portland VAMC due to severe posttraumatic changes and arthritis in his right wrist. The Veteran contends that this surgical treatment by the VA caused additional disability and/or worsened his right hand/wrist disability. Pursuant to 38 U.S.C.§ 1151, VA compensation shall be awarded for a qualifying additional disability or a qualifying death of a Veteran in the same manner as if such additional disability were service connected. A disability or death is a qualifying additional disability or qualifying death if the disability or death was not the result of the Veteran's willful misconduct and either: 1) the disability or death was caused by hospital care, medical or surgical treatment, or examination furnished the Veteran under any law administered by the Secretary, either by a Department employee or in a Department facility, and the proximate cause of the disability or death was either A) carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of the Department in furnishing the hospital care, medical or surgical treatment, or examination; or B) an event not reasonably foreseeable; or 2) the disability or death was proximately caused by the provision of training and rehabilitation services by the Secretary as part of an approved rehabilitation program. 38 U.S.C. § 1151; 38 C.F.R. § 3.361. In determining whether a veteran has additional disability, VA compares his condition immediately before the beginning of the hospital care or medical or surgical treatment upon which the claim is based to his condition after such care or treatment. 38 C.F.R. § 3.361(b). To establish causation, the evidence must show that the hospital care or medical or surgical treatment resulted in the veteran's additional disability. Merely showing that a veteran received care or treatment and that the veteran has an additional disability does not establish cause. 38 C.F.R. § 3.361(c)(1). Hospital care or medical or surgical treatment cannot cause the continuance or natural progress of a disease or injury for which care or treatment was furnished unless VA's failure to timely diagnose and properly treat the disease or injury proximately caused the continuance or natural progress. 38 C.F.R. § 3.361(c)(2). The record reflects that the Veteran had a long history of right hand/wrist injuries including a broken wrist prior to service and after service. He also sustained multiple falls, which led to seeking treatment at the VAMC in November 2000. His VA physicians identified significant arthritis and posttraumatic changes as the cause of his severe pain. After the November 2003 surgery and follow-up care, he did not seek additional medical treatment for his right until July 2014 when he returned to the VAMC complaining of worsening right hand/wrist pain. His VA physicians suggested a second surgery, and the Veteran sought a second opinion from a Kaiser Permanente provider. In September 2016 he reported to a private physician at Kaiser Permanente that his right wrist felt better for “a few years after surgery” but then began to notice a worsening of pain. The Veteran ultimately had a second right wrist surgery in February 2017 performed at a Kaiser Permanente facility. A VA examination and opinion was obtained in January 2018. The examiner noted that the Veteran has posttraumatic, postoperative pain and stiffness in the right wrist. The Veteran reported that he had ongoing pain and increased stiffness after the surgery, and continued physical therapy and the use of splints intermittently. The VA examiner noted that the Veteran's right wrist injury first occurred when he was in high school playing football. He further noted that the Veteran's March 2002 right wrist x-ray showed "severe degenerative changes at the right wrist with narrowing the radiocarpal and intercarpal joint spaces. Irregularity of articular surfaces of the radius, scaphoid, and lunate, and disruption of the proximal or carpal row. The lunage is dorsally displaced and moderately angulated." Thus, the Veteran had a long history of severe posttraumatic arthritis with lunate bone displacement prior to his initial November 2003 right wrist surgery. After a thorough review of the record, the VA examiner stated: “I do not identify a deviation from reasonable and appropriate level of care by the VA prior to his transfer of care for right wrist to Kaiser Permanente in 2016.” He further stated: “I do not identify evidence that surgical treatment for his right hand/wrist caused additional disability or became worse as a result of the VA treatment at issue. He had severe post traumatic changes to his right wrist before his surgical treatment at the VA, and records indicate he did better after his right wrist surgery in 2003 for several years. I have no records or other indication that he had complications or additional disability as result of or after his right wrist surgery in 2003…[n]o indication that VA care caused additional disability resulted from an event that could not have reasonably been foreseen by a reasonable healthcare provider is identified by me.” The Board affords the January 2018 VA examiner's opinion substantial probative value. After reviewing the Veteran's electronic claims file and VA treatment, the examiner synthesized the Veteran's medical history and found no evidence of an additional disability or worsening of the Veteran’s long-standing wrist pain. To the contrary, the examiner noted that the surgery provided the Veteran relief from wrist pain for years. Further, the examiner found no evidence of carelessness, negligence, lack of proper skill, or error in judgement by the VA. The Board notes that there is no opinion in the record or further evidence to the contrary. The Board observes the Veteran's assertions that he has experienced additional pain since the above described procedures, which he claims to have caused additional disability. However, the Board notes that the Veteran himself stated that he felt better after the November 2003 surgery for years and he did not seek treatment for pain again until 2014. While he is competent to report symptoms such as wrist pain, he is not competent to independently render a medical diagnosis or opine as to any potential carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA. While his pain may have returned years after his November 2003 surgery, additional disability due to any VA fault or an event not reasonably foreseeable has not been demonstrated. Accordingly, the preponderance of the evidence of record, to include the January 2018 VA examination report and opinion, is against a finding that carelessness, negligence, lack of proper skill, or error in judgment on the part of VA caused additional disability. In addition, the preponderance of the evidence of record is against a finding that an event not reasonably foreseeable caused additional disability. Therefore, the claim for entitlement to benefits pursuant to 38 U.S.C. § 1151 for surgical treatment of right hand/wrist must be denied and the benefit of the doubt rule enunciated in 38 U.S.C. § 5107(b) is not for application. REASONS FOR REMAND Entitlement to service connection for a right hand/wrist disability is remanded. The Board notes that the Veteran first asserted that his right hand/wrist disability was related to his military service in his September 2018 Notice of Disagreement (NOD). The RO issued a Statement of the Case (SOC) in January 2019 denying the Veteran’s claim for service-connection. The Veteran contends that his hand/wrist problems began during service and continued since that time. He also asserts that his wrist fracture prior to service was asymptomatic at the time he entered service and was thereafter aggravated during service. The Board observes that the Veteran's entrance examination shows that the Veteran had a broken wrist in 1962 that healed without complications. During military service there was no treatment for right wrist or hand problems. His March 1969 separation examination made no note of any hand/wrist problems and marked his upper extremities as “normal.” Since service, the Veteran has received both VA and private treatment for a right hand/wrist disability including two surgeries. As discussed above, the Veteran underwent a VA examination for wrist conditions in January 2018. This examination was conducted for the purposes of determining whether the Veteran was entitled to compensation under 38 U.S.C. § 1151. Because the examiner did not provide a nexus opinion addressing whether the Veteran's right hand/wrist disability was incurred as a result of or aggravated by his military service, remand is required to obtain an addendum opinion that adequately addresses these questions. In cases such as the one at hand, where a condition may have pre-existed service, the Board, in considering the pertinent statutory and regulatory framework governing the presumption of aggravation, must determine: (1) whether there was a worsening of the disorder during service; and (2) if so, whether there was clear and unmistakable evidence that the increase in severity was due to the natural progress of the disease. See Crowe v. Brown, 7 Vet. App. 238, 245-46 (1994). 38 C.F.R. § 3.306 (2017). In light of the Veteran’s recent contentions, the Board finds that an additional VA opinion is necessary to determine the nature and etiology of his right hand/wrist disability, to include whether his disability pre-existed his entry into service and if so, whether it was aggravated by service. Therefore, remand is necessary prior to adjudication. The matters are REMANDED for the following action: 1. Obtain any relevant outstanding treatment records and associate them with the claims file. All attempts to obtain records should be documented in the claims folder. 2. The Agency of Original Jurisdiction (AOJ) should arrange for a VA medical opinion authored by an appropriate examiner in order to determine the nature and etiology of the Veteran's claimed right hand/wrist disability. The examiner is to be provided access to the Veteran's electronic claims file and must specify in the report that these records have been reviewed. All pertinent symptomatology and findings should be reported in detail, including all diagnoses. The examiner should provide the following opinions: (a) Did the Veteran have a right hand/wrist disability that clearly and unmistakably (i.e., undebatably) existed prior to his enlistment in-service? (b) If so, is there clear and unmistakable evidence that the pre-existing right hand/wrist disability was not aggravated (i.e., is it undebatable that the disability did not undergo a permanent increase in severity) during the Veteran's period of active service? If the Veteran's pre-existing right hand/wrist disability did undergo a permanent increase in severity, was that permanent increase in severity during service clearly and unmistakably due to the natural progress of the condition? If there was no increase in pathology, that should be clearly set out. (c) The examiner should also comment on whether there is an indication that there may have been a permanent worsening of symptoms of a right hand/wrist disability because the condition was previously asymptomatic. (d) For any right hand/wrist disability that did not pre-exist his active service, the examiner should express an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the right hand/wrist disability had its onset during, or is otherwise etiologically related to, the Veteran's active service. In providing the requested opinions, the examiner should refer to the pertinent evidence of record, including the Veteran's service treatment records as well the lay statements in support of his claim. The examiner must provide a complete rationale for any opinions expressed, based on the examiner's clinical experience, medical expertise, and established medical principles. If an opinion cannot be made without resort to speculation, the examiner should provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be made. The examiner should also reconcile all prior reports, as necessary. 3. After the development requested has been completed, the Agency of Original Jurisdiction (AOJ) should review any report to ensure that it is in complete compliance with the directives of this remand. If the report is deficient in any manner, the AOJ must implement corrective procedures at once. MICHAEL D. LYON Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board L. Sneeringer, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.