Citation Nr: 19111007 Decision Date: 02/12/19 Archive Date: 02/12/19 DOCKET NO. 15-39 676 DATE: February 12, 2019 ORDER Service connection for left ear hearing loss is granted. Service connection for right ear hearing loss is denied. Restoration of the 20 percent rating for service-connected right shoulder dislocation is granted effective November 14, 2017, subject to the laws and regulations governing the payment of monetary awards. REMANDED Service connection for a right hip disability, to include as secondary to treatment for a service-connected psychiatric disability, is remanded. Entitlement to a disability rating greater than 10 percent for a service-connected left ankle disability is remanded. Entitlement to an initial disability rating greater than 50 percent for service-connected major depressive disorder and unspecified anxiety disorder (psychiatric disability) is remanded. Entitlement to a separate compensable rating for an anxiety disorder is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. FINDINGS OF FACT 1. Resolving reasonable doubt in the Veteran’s favor, it is at least as likely as not that his current left ear hearing loss disability is etiologically related to significant threshold shifts shown during active service. 2. The Veteran does not have a current right ear hearing loss disability for VA purposes. 3. In a December 2017 rating decision, the Regional Office (RO) reduced the Veteran’s disability rating for his service-connected right shoulder dislocation under Diagnostic Codes (DCs) 5003-5203 from 20 percent to 0 percent effective November 14, 2017 due to his failure to report to a reexamination without providing good cause. 4. The RO failed to issue a pretermination notice as required under governing procedures before it reduced the Veteran’s disability rating for his service-connected right shoulder dislocation in the December 2017 rating decision. CONCLUSIONS OF LAW 1. The criteria for service connection for left ear hearing loss have been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 1137, 1153, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.385. 2. The criteria for service connection for right ear hearing loss have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 1137, 1153, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.385. 3. The rating reduction for a service-connected right shoulder dislocation from 20 percent to 0 percent effective November 14, 2017 was improper; therefore, restoration of the prior rating is warranted. 38 U.S.C. §§ 1155, 5112; 38 C.F.R. §§ 3.105, 3.344, 3.655. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 1989 to December 1992 and March 1994 to August 2014. He also had additional inactive service. The issues on appeal were certified to the Board as part of multiple separate appeal streams. For the sake of efficiency and consistent with Board policy, the Board has merged those appeal streams into one. This does not prejudice the Veteran in any way. The Board notes that while this appeal was pending, an August 2018 rating decision assigned an increased rating of 20 percent for the right shoulder dislocation, effective April 4, 2018, and then a September 2018 rating decision determined assignment of such a rating was clearly and unmistakably erroneous and discontinued it effective October 1, 2018. The Veteran disagreed with that determination, and a Statement of the Case was issued in November 2018. The Veteran is advised he does not have to appeal that Statement of the Case because, as a result of this decision, his 20 percent rating will be retroactively restored effective November 14, 2017. Although the January 2017 Statement of the Case (SOC) also addressed the issues of entitlement to an evaluation in excess of 20 percent for right shoulder dislocation, and entitlement to service connection for thoracic spine degeneration and chronic pain (also claimed as dextroscoliosis) and for a left elbow condition, the Veteran chose not to appeal those claims. In his January 2017 VA Form 9, he indicated he was only appealing the claim for an increased rating for the left ankle condition, which was also addressed in the January 2017 SOC. The RO sent him a letter in October 2017 confirming these issues were not on appeal, and the Veteran did not express any disagreement with that conclusion. Although the record contains evidence that the Agency of Original Jurisdiction (AOJ) has not yet considered, the Veteran waived initial AOJ review of this evidence in September 2018 correspondence. The Board has thoroughly reviewed all the evidence in the Veteran’s VA files. In every decision, the Board must provide a statement of the reasons or bases for its determination, adequate to enable an appellant to understand the precise basis for the Board’s decision, as well as to facilitate review by the Court. 38 U.S.C. § 7104(d)(1); see Allday v. Brown, 7 Vet. App. 517, 527 (1995). Although the entire record must be reviewed by the Board, the Court has repeatedly found that the Board is not required to discuss, in detail, every piece of evidence. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Dela Cruz v. Principi, 15 Vet. App. 143, 149 (2001) (rejecting the notion that the Veterans Claims Assistance Act mandates that the Board discuss all evidence). Rather, the law requires only that the Board address its reasons for rejecting evidence favorable to the appellant. See Timberlake v. Gober, 14 Vet. App. 122 (2000). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The appellant must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See id. Pertinent regulations for consideration were provided to the Veteran in the respective Statements of the Case (SOCs), and will not be repeated here in full. Service Connection Initially, the AOJ framed the hearing loss issues on appeal as one claim for bilateral hearing loss. However, the Board has split that issue into two separate service connection claims for right ear hearing loss and left ear hearing loss due to the different dispositions warranted for those respective issues. Service connection for left ear hearing loss is granted and service connection for right ear hearing loss is denied for the following reasons. 1. Service connection for left ear hearing loss is granted. The Veteran claims service connection for left ear hearing loss. After a full review of the record, the claim is granted on a direct basis. Initially, the Board concedes the presence of a current left ear hearing loss disability for VA purposes. See January 2018 VA audiological examination. The evidence summarized below is at least in equipoise that his current left ear hearing loss is related to service: - April 2015 and January 2018 favorable VA nexus opinions (competently and persuasively concluding the Veteran’s left ear hearing loss was at least as likely as not caused by or a result of military noise exposure; reasoning that despite low probability of hearing loss from his military occupational specialty as a nurse practitioner, service treatment records showed a significant shift in auditory thresholds for the left ear during active service; explaining that significant shifts in auditory thresholds may indicate noise exposure or acoustic trauma); - Service treatment records, e.g., March 2009 post-deployment health assessment (noting audiological referral after Veteran’s Iraq deployment); September 2012 annual audiological evaluation (noting mild loss at 6000 Hz in the left ear and “early warning” for hearing change at 4000 Hz bilaterally); April 2013 retirement report of medical examination (audiometric test results showed left ear pure tone threshold of 45 dB at 4000 Hz); April 2013 audiological note (concluding audiological testing showed significant threshold shifts); May 2013 audiological evaluation and hearing conservation program note (noting slight asymmetry in hearing and sensorineural hearing loss, with the left worse than right; finding deterioration in hearing and significant threshold shift). - The Veteran’s competent and credible reports of hearing loss symptoms during and continuing after active service bolstered by: April 2013 retirement report of medical history (reporting “yes” regarding hearing loss and ear, nose, or throat trouble); and the fact that he filed a service connection claim for hearing loss in May 2013, i.e., prior to separation. In conclusion, resolving reasonable doubt in the Veteran’s favor, the Board finds the evidence is at least in equipoise that his current left ear hearing loss disability is related to active service. Therefore, the claim is granted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 2. Service connection for right ear hearing loss is denied. The Veteran claims service connection for right ear hearing loss. After a full review of the record, the claim must be denied because the Veteran has no current right ear hearing loss disability for VA purposes. The threshold for normal hearing is from 0 to 20 decibels, and higher threshold levels indicate some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). For purposes of applying the laws administered by VA, impaired hearing is considered a disability when: the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. See 38 C.F.R. § 3.385. Here, the competent evidence of record shows that the Veteran does not have a current right ear hearing loss disability for VA purposes. See April 2015 and January 2018 VA audiological examinations. The Board acknowledges that the 2015 and 2018 VA examiners checked boxes diagnosing right ear sensorineural hearing loss. However, the examination reports noted that he may have had right ear hearing loss at a level that is not considered disabling for VA purposes, which is exactly the case here. The Board recognizes the Veteran’s contention that he has a current right ear hearing loss disability. However, he is not competent to report the specific audiometric values for his right ear hearing acuity or speech recognition, or to conclude that he currently has right ear hearing loss for VA purposes. Accordingly, such lay contentions are not competent evidence. The VA regulations summarized above specifically and clearly define what constitutes a hearing loss disability based on objective audiometric data, and those criteria have not been met as to the right ear.   As the Veteran has not asserted and the evidence does not otherwise show that his right ear hearing acuity has materially worsened since the January 2018 VA audiological examination, a new examination is unnecessary. See 38 C.F.R. §§ 3.326, 3.327 (new VA examinations will be requested when VA determines that there is a need to verify the current severity of a disability, e.g., when evidence indicates there has been a material change in a disability or that the current rating may be incorrect); Snuffer v. Gober, 10 Vet. App. 400, 403 (1997); VAOPGCPREC 11-95 (1995) (stating that a new VA examination is appropriate when there is evidence of an increase in severity since the last examination). In conclusion, service connection for right ear hearing loss is denied. See 38 C.F.R. § 3.385. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine does not apply. 38 U.S.C. § 5107; Gilbert, 1 Vet. App. at 53. 3. Duties to notify and assist The Veteran suggested in his August 2015 notice of disagreement (NOD) that his 2015 VA audiological examination was inadequate. Specifically, he contended that the 2015 examination was unreliable and invalid because it was not as “high tech” as his separation audiological evaluation, as the VA examiner merely used “simple hand signals.” The Board rejects this contention and affirmatively finds that the VA audiological examinations relied upon in the denial above were adequate. The VA examiners competently conducted thorough audiological evaluations and provided adequate discussions of the Veteran’s pertinent medical history, as well as the audiometric findings necessary to render a decision. Thus, there is no duty to provide another VA audiological examination. Furthermore, in March 2015, the AOJ notified the Veteran that it was unable to obtain some service treatment records. In March 2015 correspondence, he responded that he previously had submitted his complete service treatment records with his original, 2013 pre-discharge service connection claims. After a full review of the file, the Board is satisfied that the AOJ obtained and the Veteran submitted all available service treatment records. The Veteran has not raised any other duty to notify or duty to assist issues regarding the service connection claim denied above. 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). Rating Reduction The AOJ scheduled a review examination to assess the current severity of the Veteran’s service-connected right shoulder disability for November 14, 2017. As he failed to respond to a voice mail message and a letter notifying him of the examination, it was cancelled due to his failure to “R.S.V.P.” See November 14, 2017 web document. In December 2017, the AOJ issued a rating decision reducing his separate compensable rating for a right shoulder dislocation under Diagnostic Codes 5003-5203 from 20 percent to 0 percent effective November 14, 2017, and notified him accordingly. The basis of the reduction was the Veteran’s failure to report for the scheduled VA examination. The Veteran contends that the rating reduction was improper and seeks restoration of the prior rating. For the reasons below, the Board agrees and the prior rating is therefore restored. Pursuant to VA laws and regulations, disability ratings for service-connected conditions may be reduced based on the failure of the claimant to report for a reexamination, or based on improvement of the underlying disability. Under either scenario, to properly reduce a disability rating, VA must meet both procedural and substantive criteria. Reductions based on the claimant’s failure to report to a VA examination are governed by 38 C.F.R. § 3.655. When “continued entitlement to a benefit cannot be established or confirmed without a current VA examination or reexamination and a claimant without good cause, fails to report for such examination, or reexamination,” then a running award may be reduced under the guidelines set forth in 38 C.F.R. § 3.655(c). See 38 C.F.R. § 3.655(a). Examples of good cause for missing an examination “include, but are not limited to, the illness or hospitalization of the claimant, death of an immediate family member, etc.” Id. When a claimant fails to report for a reexamination, “VA shall issue a pretermination notice advising the payee that payment for the disability or disabilities for which the reexamination was scheduled will be discontinued.” Id. at § 3.655(c)(1). This pretermination notice “shall include the prospective date of discontinuance, the reason therefor, and a statement of the claimant’s procedural and appellate rights.” Id. Following the issuance of this notice, “the claimant shall be allowed 60 days to indicate his or her willingness to report for a reexamination” or to present evidence regarding the disability for which the reexamination was scheduled. Id. If the claimant fails to respond to the pretermination notice within 60 days (or if any submitted evidence does not establish continued entitlement to the benefit), then “payment for such disability or disabilities shall be discontinued or reduced as of the date indicated in the pretermination or the date of last payment, whichever is later.” 38 C.F.R. § 3.655(c)(2). Conversely, if in the 60 days following the issuance of the pretermination notice, “notice is received that the claimant is willing to report for a reexamination before payment has been discontinued or reduced, action to adjust payment shall be deferred.” 38 C.F.R. § 3.655(c)(3). In such cases, the “reexamination shall be rescheduled and the claimant notified that failure to report for the rescheduled examination shall be cause for immediate discontinuance or reduction of payment.” Id. (The procedural and substantive requirements governing rating reductions based on improvement of the underlying disability are set forth in 38 C.F.R. §§ 3.105(e) and 3.344. Those provisions are not relevant to the legal posture of this case, however.) The U.S. Court of Appeals for Veterans Claims consistently has held that when the RO reduces a veteran’s disability rating without following the applicable regulations, the reduction is void ab initio. See Greyzck v. West, 12 Vet. App. 288, 292 (1999). Although a remand for compliance with the law normally would be an adequate remedy, in a rating reduction case, the erroneous reduction must be vacated and the prior rating must be restored. Schafrath, 1 Vet. App. at 595. In this case, in a December 2017 rating decision, the RO reduced the Veteran’s separate compensable rating for a right shoulder dislocation from 20 percent to 0 percent effective November 14, 2017 due to his failure to report for a scheduled VA examination or provide good cause. However, the RO failed to comply with the notice procedures under 38 C.F.R. § 3.655 prior to reducing the rating. Specifically, the RO was required to provide a “pretermination notice” advising him of what disability was to be discontinued or reduced; thereafter, the Veteran would have had 60 days to respond to the notice and either request rescheduling of the examination or provide additional information. 38 C.F.R. § 3.655(c)(1). However, the RO provided no notice whatsoever to the Veteran before issuing the December 2017 rating decision, in clear violation of § 3.655(c)(1). In conclusion, the December 2017 rating decision’s reduction of the Veteran’s disability rating for his service-connected right shoulder dislocation from 20 percent to 0 percent was improper. Accordingly, the reduction is vacated and the prior rating is restored effective November 14, 2017. REASONS FOR REMAND 1. Service connection for a right hip disability, to include as secondary to treatment for a service-connected psychiatric disability, is remanded. - VA medical opinion: A VA medical opinion is needed to address the secondary service connection theory raised by the evidence of record. Specifically, medical evidence suggests that the Veteran’s current right hip disability (see December 2016 imaging showing calcific tendinopathy), manifested as limited and objectively painful motion, may be related to documented weight gain around late 2016 to early 2017. The Veteran’s VA mental health provider competently confirmed that his weight gain was a side effect of Abilify, a medication prescribed for his service-connected psychiatric disability. Cf. VAOPGCPREC 1-2017 (noting that obesity could act as an “intermediate step” to establish service connection for another disability as secondary to a service-connected disability under certain circumstances). 2. Entitlement to a disability rating greater than 10 percent for a left ankle disability is remanded. - Current VA examination: A new VA examination is needed to assess the current state of the Veteran’s service-connected left ankle disability. The most recent VA examination of this condition was in April 2015, and he has asserted worsened symptomatology since then. His statements and the passage of almost four years since the most recent VA examination warrant an updated evaluation. - Department of Defense (Defense) facility post-service treatment records: The Veteran submitted post-service treatment records from Defense medical facilities beginning soon after his final period of active service through approximately April 2018. This facility appears to have provided most of his post-service medical care (excluding, in pertinent part, mental health care). As this claim must be remanded for a current VA examination, the AOJ also should attempt to obtain all updated treatment records from this government medical facility. 3. Entitlement to an initial disability rating greater than 50 percent for service-connected major depressive disorder and unspecified anxiety disorder is remanded. - Current VA examination: A new VA examination is needed to assess the current state of the Veteran’s service-connected psychiatric disability. The most recent VA examination of this condition was in April 2015 and he has asserted worsened symptomatology since then. His statements and the passage of almost four years since the most recent VA examination warrant an updated evaluation. - VA treatment records: As this issue must be remanded for a current VA examination, the AOJ also should obtain updated VA treatment records. - Private treatment records: The record references relevant treatment at a private medical facility in the Philippines, where the Veteran has spent significant time during the pendency of this claim. A remand is required to allow VA to obtain authorization and request them. If they are unavailable, then the AOJ must advise him accordingly and give him an opportunity to submit the records. (Moreover, the Board notes that the AOJ previously requested private treatment records from the Veteran’s non-VA mental health provider, J. Schwartz. She responded with a letter generally summarizing the Veteran’s care as opposed to submitting the supporting records. As a remand is needed for the reasons discussed above, the AOJ should re-request those records.) 4. Entitlement to a separate compensable rating for an anxiety disorder is remanded. As this claim is inextricably intertwined with the remanded psychiatric increased rating claim, it also must be remanded. The Board notes that the Veteran already has been awarded service connection for major depressive disorder and unspecified anxiety disorder, and any symptoms due to other psychiatric disorders would be combined with the current psychiatric disability rating. Therefore, the Veteran should consider whether it is appropriate to withdraw this claim and not expend further time and resources when no likely benefit will result to him. 5. Entitlement to a TDIU is remanded. As the TDIU claim is inextricably intertwined with the remanded increased rating claims, the TDIU claim also must be remanded. The AOJ also should complete the following development: - Current VA examinations: As this issue must be remanded for the reasons stated above, the AOJ also should schedule updated VA examinations for the following service-connected disabilities: hypertension; tension headaches; gastritis with GERD and hiatal hernia; asthma; allergic rhinitis; and plantar fasciitis. The most recent VA examinations of those conditions were in 2015 and 2016. The Veteran has had multiple address changes in the U.S. and abroad during the pendency of the claims on appeal. This has resulted in missed VA examinations and other issues. VA's duty to assist is not always a one-way street. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). The Veteran must cooperate in VA’s efforts to obtain evidence needed to adjudicate his claims, including keeping his contact information up-to-date, attending scheduled VA examinations, and promptly communicating with VA why he cannot attend a scheduled VA examination. See, e.g., 38 C.F.R. §§ 3.159(c) (requiring claimant to "cooperate fully with VA's efforts" to obtain both VA and non-VA medical records), 3.655(b) (setting forth potential consequences when a veteran fails to appear for a scheduled examination). The Veteran’s failure to appear at a scheduled VA examination without good cause may result in his claims being decided based on the available medical evidence or, if appropriate, denied. 38 C.F.R. § 3.655(b). The matters are REMANDED for the following action: 1. Obtain the Veteran’s VA treatment records from the Providence, RI VA Medical Center and all associated outpatient clinics from October 2018 to the present. 2. Obtain the Veteran’s post-service Department of Defense outpatient treatment records from the Naval Branch Health Clinic in Groton, CT and the Newport, RI Naval Clinic from April 2018 to the present.   3. After obtaining the necessary releases from the Veteran, request all outstanding medical records from the following identified private / non-VA providers: (a.) J. Schwartz, LMHC, Portsmouth Counseling Center; (b.) CEBU Hospital in the Philippines*; (c.) any other private / non-VA providers that the Veteran may identify in the appropriate release(s). Document any negative responses. If any private treatment records are unavailable, then notify the Veteran and give him the opportunity to submit the records himself. If additional, relevant care is referenced in these private treatment records, then attempt to obtain records of that care as well. *If any obtained private treatment records require translation into English, then please do so before scheduling any VA examinations. 4. DO NOT PROCEED WITH THE FOLLOWING INSTRUCTIONS UNTIL ALL ACTIONS AND DEVELOPMENT REQUESTED ABOVE HAVE BEEN COMPLETED TO THE EXTENT POSSIBLE. 5. PRIOR TO obtaining opinions on the right hip claim, an opinion must be obtained concerning the relationship between the Veteran’s weight gain and his service-connected psychiatric disability, to include medication side effects. The examiner must opine as to whether it is as likely as not that side effects from medications prescribed for the Veteran’s service-connected psychiatric disabilities, including Abilify, caused his weight gain in approximately late 2016 to early 2017. (See December 2016, January 2017 VA mental health outpatient treatment records.) 6. Then, schedule a VA examination regarding the service connection claim for a right hip disability. The examiner must address the following, with full supporting rationales: (a.) IF AND ONLY IF AN OPINION IS OBTAINED THAT THE VETERAN’S WEIGHT GAIN WAS CAUSED BY MEDICATION SIDE EFFECTS OF HIS SERVICE-CONNECTED PSYCHIATRIC DISABILITIES, then opine whether it is at least as likely as not: i) that the weight gain was a substantial factor in causing any current right hip disability (whether a diagnosis or symptoms and impairments described above), and ii) that any current right hip disability (whether a diagnosis or symptoms described above) would NOT have occurred but for the weight gain caused by medications prescribed to treat the service-connected psychiatric conditions. See medical evidence suggesting a possible link between the Veteran’s weight gain and his right hip symptoms and impairments: December 2016 Defense medical facility note (documenting complaints of hip pain; noting factors correlating with pain onset included weight gain; the Veteran, who is a mental health professional, attributed his recent weight gain to Abilify). The examiner should note his or her complete review of the file, including this remand. If any findings are not possible without resort to mere speculation, then please explain why. 7. Schedule the appropriate VA examinations to address the current nature, symptoms, and severity of the following service-connected disabilities: (a.) psychiatric disability; (b.) left ankle disability; (c.) asthma; (d.) plantar fasciitis. (e.) hypertension; (f.) tension headaches; (g.) gastritis with GERD and hiatal hernia; (h.) allergic rhinitis. Each examiner must comment on the functional impact of those respective disabilities on his ability to work. Each examiner must note his or her   review of the complete claims file. If any findings are not possible without resort to mere speculation, then the examiner(s) must explain why. MICHELLE L. KANE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD R. Janofsky, Associate Counsel