Citation Nr: 19132575 Decision Date: 04/25/19 Archive Date: 04/25/19 DOCKET NO. 19-00 036 DATE: April 25, 2019 REMANDED Propriety of a reduction from 80 percent to a 40 percent disability rating for bilateral hearing loss, effective July 1, 2018, is remanded. REASONS FOR REMAND The Veteran served on active duty from March 1953 to March 1955. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an April 2018 rating decision. Propriety of a reduction of disability rating from 80 percent to 40 percent for bilateral hearing loss, effective July 1, 2018, is remanded. The Veteran essentially contends that it was improper to reduce the disability rating for his service-connected bilateral hearing loss from 80 percent to 40 percent because his hearing acuity has not improved and his ability to comprehend speech was not accurately reflected by speech recognition scores obtained during the February 2018 VA examination. The Veteran’s VA medical records show that in November 2005 he was referred for an audiology examination by his primary care physician, and he underwent his first hearing test. The following pure tone thresholds, in decibels, based on air conduction were obtained: HERTZ 1000 2000 3000 4000 Avg. RIGHT 5 30 50 65 37.5 LEFT 25 75 95 95 72.5 It was noted that speech recognition thresholds were 15 decibels for the right ear and 35 decibels for the left ear. The speech recognition score for the right ear was 96 percent at a presentation level of 55 decibels and for the left ear was 56 percent at a presentation level of 75 decibels. It was noted that the most comfortable loudness levels were 55 decibels for the right ear and 75 decibels for the left ear. In March 2006, the Veteran was afforded a VA examination for hearing loss, during which the following pure tone thresholds were obtained: HERTZ 1000 2000 3000 4000 Avg. RIGHT 10 25 50 70 39 LEFT 30 80 100 105 79 It was noted that speech recognition thresholds were 20 decibels for the right ear and 40 decibels for the left ear. The speech recognition score for the right ear was 88 percent at a presentation level of 72 decibels and for the left ear was 58 percent at a presentation level of 87 decibels. In an April 2006 rating decision, service connection for bilateral hearing loss was granted, evaluated as 10 percent disabling effective December 9, 2005. In connection to the Veteran’s prescribed use of hearing aids, a hearing examination in August 2008 produced the following pure tone thresholds: HERTZ 1000 2000 3000 4000 Avg. RIGHT 15 55 65 65 50 LEFT 30 75 90 95 72.5 It was noted that speech recognition thresholds were obtained at 20 decibels for the right ear and at 40 decibels for the left ear. The speech recognition score for the right ear was 80 percent at a presentation level of 60 decibels and for the left ear was 56 percent at a presentation level of 75 decibels. The Veteran was again given a clinical hearing examination in April 2010, during which the following pure tone thresholds were obtained: HERTZ 1000 2000 3000 4000 Avg. RIGHT 55 60 75 80 67.5 LEFT 35 75 85 100 73.75 It was recorded that speech recognition thresholds were unobtainable for both the right and left ears. The speech recognition score for the right ear was 28 percent at a presentation level of 65 decibels and for the left ear was 28 percent at a presentation level of 75 decibels. It was noted that the most comfortable loudness levels were 65 decibels for the right ear and 75 decibels for the left ear. The Veteran’s VA medical records show that in December 2013, during a semi-annual physical, he reported that after the last adjustment of his hearing aids he still had problems so he went to an outside audiologist who cleaned wax out of his right ear, which solved the problem. It was recorded on November 5, 2014: “cursory otoscopic indicated significant cerumen bilaterally, which was removed.” In November 2014, the Veteran sought an increased disability rating, and in March 2015 he was afforded a VA examination. The following pure tone thresholds were obtained: HERTZ 1000 2000 3000 4000 Avg. RIGHT 55 65 75 75 68 LEFT 45 75 95 95 78 The speech recognition score for the right ear was 40 percent and for the left ear was 24 percent. In an April 2015 rating decision, the Veteran’s service-connected bilateral hearing loss was evaluated as 80 percent disabling. The Veteran’s VA medical records show that in May 2015 he underwent ear lavage and hearing aid adjustment. In September 2015, it was recorded that his ear canals were completely occluded with cerumen. In October 2015, the Veteran was treated for ear wax and ear fungal infection. It was noted that there was a cheesy white exudate bilaterally and that the Veteran swam every day and put his hearing aids in immediately afterward. In September 2016, it was noted that ear canals indicated slight cerumen bilaterally. In February 2017, cerumen management was planned, which included requesting a machine for the Veteran to put his hearing aids in to keep them and his ears dry; no fungal infection was noted. It was noted in May 2017 that there was no occluding cerumen, however, it was noted during his May 2017 annual physical that his ears were cleaned. In July 2017 the Veteran was treated for occluding cerumen with ear lavage. It was noted that there was moderate cerumen occlusion, which was treated with ear lavage, and it was planned that the Veteran would return every three months for ear lavage. It was noted that the Veteran had very narrow ear canals and ears, which plugged easily with wax. October 2017 emergency room records show that the Veteran’s ears had been irrigated two weeks before, after which he experienced reduced hearing. His primary care physician prescribed antibiotics. At the emergency room, he complained of his right ear feeling plugged up, and his right ear was irrigated, during which copious amounts of white substance returned by suction. It was believed this was related to the prescribed antibiotic. The Veteran stated that he could hear much better afterward. In December 2017, the Veteran sought an increased disability rating. Medical records show that in January 2018 there was moderate cerumen bilaterally, which was treated with ear lavage. In February 2018, the Veteran was afforded a VA examination, during which the following pure tone thresholds were obtained: HERTZ 1000 2000 3000 4000 Avg. RIGHT 60 75 70 75 70 LEFT 45 85 95 100 81 The speech recognition score for the right ear was 72 percent and for the left ear was 52 percent. In a February 2018 rating decision, the Veteran was given notice of a proposed decrease of evaluation of disability from 80 percent to 40 percent. In a March 2018 statement in support of claim, the Veteran pointed out that the pure tone thresholds had slightly worsened when comparing the audiograms of his March 2015 VA examination (mistakenly identified as November 2014, which was when he filed a claim for increased rating) and that of February 2018. The speech recognition scores in February 2018, however, improved in each ear by 30 percent. Medical records show that in March 2018 the Veteran requested new hearing aids. It was noted that his ear canals were patent. In the April 2018 rating decision that is on appeal, the Veteran’s disability rating for his service-connected bilateral hearing loss was reduced to 40 percent effective July 1, 2018. The Veteran perfected this appeal. The Board finds that, for several reasons, the evidence of record in its current state of development does not fully inform the Board as to the Veteran’s current hearing abilities. The Secretary has an affirmative duty to gather the evidence necessary to render an informed decision on a claim. Douglas v. Shinseki, 23 Vet. App. 19 (2009). Once VA provides an examination, it must be adequate. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). An examination is adequate if it “takes into account the records of prior medical treatment, so that the evaluation of the claimed disability will be a fully informed one.” Id. (quoting Green v. Derwinski, 1 Vet. App. 121, 124 (1991)). Moreover, an examination must be based upon consideration of the Veteran’s prior medical history and examinations. Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007). First, the Veteran’s serial audiograms have revealed progressive worsening of pure tone thresholds along with decreasing speech recognition capability, which comports with the Veteran’s claims of functional loss, such that the speech recognition scores during the February 2018 VA examination appear anomalous. Therefore, on remand, a new VA hearing examination is required. Second, in the last couple of years a well-documented history of mechanical obstruction of the ear canals in the form of ear wax build-up and fungal infection has occurred. Hence, on remand, a medical opinion is required as to how this obstruction may skew testing results. Third, the Board notes that not all of the documentation of the Veteran’s VA hearing examinations have been associated with the claims file. As part of the testing process, handwritten audiological evaluation sheets are utilized by the examiner to prepare the electronic disability benefits questionnaire (DBQ). The audiological evaluation sheet for the March 2006 VA examination is in the file, but those for the March 2015 and February 2018 examinations are not. This raw data is extremely informative, as it provides the speech recognition threshold and the decibels at which speech recognition scores are reported, and it may be dispositive in evaluating the severity of a veteran’s hearing impairment when the reported speech recognition scores are not supported by the underlying testing data. Two pertinent phenomena in hearing loss cases are (1) the reliance upon an examiner’s reporting of a single speech recognition score, which may not be accurate due to a transcription error or failure to follow testing protocol and (2) testing results are rarely consistent, suggesting variably random improvement and worsening from test to test. That being the case, on remand, the handwritten audiological evaluation sheets for the Veteran’s March 2015 and February 2018 VA hearing examinations should be obtained and associated with the claims file. Likewise, the audiological evaluation sheet for the Veteran’s newly scheduled VA hearing examination must be associated with the claims file. The matter is REMANDED for the following actions: 1. Obtain and associate with the record the handwritten audiological evaluation sheets from the Veteran’s March 2015 and February 2018 VA examinations for hearing loss, if available. Obtain and associate with the record the handwritten audiological evaluation sheet for the newly scheduled VA examination directed below. All actions to obtain the requested records should be fully documented in the record. If they cannot be located or no such records exist, the Veteran and his representative should be so notified in writing. 2. Schedule the Veteran for a VA audiology examination to determine the current severity of his service-connected bilateral hearing loss. The electronic claims file and a copy of this Remand must be provided to the examiner and he or she must indicate review of these items in the examination report. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed, including the Maryland CNC test and a pure tone audiometry test. The examiner is requested to review all pertinent records associated with the claims file. The examiner must comment on the severity of the Veteran’s service-connected bilateral hearing loss and should discuss the effect of the disability on the Veteran’s occupational functioning and daily activities. The examiner must comment on the effect, if any, of the recent cleaning of ear wax from the Veteran’s anatomically narrow ear canals on the Veteran’s apparent improved speech recognition ability during the February 2018 VA hearing examination. It should be noted that the Veteran is competent to attest to factual matters of which he had first-hand knowledge, including observable symptomatology. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. (CONTINUED ON NEXT PAGE) 3. After completing the above actions and any other development as may be indicated by any response received as a consequence of the actions taken in the paragraphs above, the claim must be readjudicated. If the claim remains denied, a supplemental statement of the case must be provided to the Veteran and his representative. After the Veteran has had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. L. CHU Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Leanne M. Innet, Associate Attorney