Citation Nr: A21020005 Decision Date: 12/15/21 Archive Date: 12/15/21 DOCKET NO. 191025-44262 DATE: December 15, 2021 ORDER A rating reduction from 10 percent to noncompensable, effective May 6, 2019, for the service-connected left lower extremity radiculopathy was improper, and restoration of the prior 10 percent is granted. Entitlement to service connection for bilateral hearing loss is denied. REMANDED Entitlement to service connection for sleep apnea is remanded. Entitlement to service connection for right upper extremity carpal tunnel syndrome is remanded. Entitlement to service connection for a cervical spine disability is remanded. FINDINGS OF FACT 1. The rating for left lower extremity radiculopathy was in effect for more than 5 years and was reduced improperly since the RO failed to address the regulatory requirements that govern such reductions; the VA examination used as the basis to reduce the Veteran's 10 percent rating for left lower extremity radiculopathy to noncompensable effective May 6, 2019 was inadequate; therefore, the reduction was improper. 2. The Veteran does not have a hearing loss disability for VA purposes. CONCLUSIONS OF LAW 1. The criteria for restoration of a 10 percent disability rating for left lower extremity radiculopathy from May 6, 2019 have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.105(e), 3.105, 3.344, 4.71a, Diagnostic Code 8520. 2. The criteria for service connection for bilateral hearing loss have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.385. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Air Force from January 1985 to June 2007. The Board notes that the rating decision on appeal was issued in May 2019. In October 2019, the Veteran filed a VA Form 10-182, Decision Review Request: Board Appeal (Notice of Disagreement), seeking the hearing docket. In July 2021, the Veteran testified at a hearing before the undersigned. A transcript of the hearing has been associated with the claims file. 1. A rating reduction from 10 percent to 0 percent, effective May 6, 2019, for the service-connected left lower extremity radiculopathy was improper, and the prior 10 percent rating is restored. For a reduction of a disability rating to be proper, there are both procedural and substantive requirements that must be followed. Congress has provided that a veteran's disability will not be reduced unless an improvement in the disability is shown to have occurred. 38 U.S.C. § 1155. When a RO reduces a rating without following the applicable regulations, the reduction is void ab initio. Greyzck v. West, 12 Vet. App. 288, 292 (1999). Generally, the provisions of 38 C.F.R. § 3.105(e) and (i) require notice of a proposed rating reduction, a 60-day period to submit evidence, and 30-day period to request a hearing; and the provisions of 38 U.S.C. § 5112(b)(6) regulate the establishment of effective dates for rating reductions. Notwithstanding the requisite procedural steps, a rating reduction is not proper unless the veteran's disability shows actual improvement in his or her ability to function under the ordinary conditions of life and work. See Faust v. West, 13 Vet. App. 342, 349 (2000). In addition, the Board notes that the Veteran's 10 percent disability rating for left lower extremity radiculopathy was in effect for more than five years at the time of the RO's reduction. Reductions of evaluations which have been in effect for more than 5 years may be only predicated on an adequate "full and complete" examination that establishes that it is "reasonably certain that the improvement will be maintained." 38 C.F.R. § 3.344. Notably, however, if the VA examination report justifying the rating reduction is inadequate, the reduction cannot be upheld. See Tucker v. Derwinski, 2 Vet. App. 201 (1992) (holding that the failure of the examiner in that case to review the claims file rendered the reduction decision void ab initio). Here, the RO determined that a 10 percent disability rating for the Veteran's left lower extremity radiculopathy was no longer warranted pursuant to Diagnostic Code 8520, based primarily on a May 2019 examination report. However, as will be described in detail below, the Board finds that the May 2019 VA examination was inadequate. At her July 2021 Board hearing, and in an October 2019 VA Form 21-4138, the Veteran attested to the inadequacy of her VA examination. She also testified that her symptoms had not improved and that she continues physical therapy and acupuncture. The Veteran received a VA Knee and Lower Leg Conditions examination and a Peripheral Nerve Conditions examination in May 2019. Neither examination adequately addressed the Veteran's left lower extremity radiculopathy as they focused on the Veteran's right knee strain and carpal tunnel syndrome, further corroborating the Veteran's contentions regarding the adequacy of her examination. The examinations did not exhibit that the Veteran's condition improved under the ordinary conditions of life and work. Accordingly, based on the inadequacy of the May 2019 VA examination report, the Board finds that the reduction in rating was improper, and the 10 percent disability rating for left lower extremity radiculopathy is restored, effective May 6, 2019. 38 C.F.R. § 3.344; Brown v. Brown, 5 Vet. App. 413 (1993). 2. Entitlement to service connection for bilateral hearing loss The Veteran seeks entitlement to service connection for bilateral hearing loss. Service connection may be established for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Service connection requires evidence showing: (1) a current disability; (2) incurrence or aggravation of a disease or injury in service; and (3) a nexus between the current disability and the disease or injury incurred or aggravated in service. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). When there is an approximate balance of positive and negative evidence regarding the merits of an issue, the benefit of the doubt shall be given to the Veteran. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. If the preponderance of the evidence is against the claim, the claim is to be denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Generally, for VA purposes, impaired hearing will be considered to be 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. VA secured an audiological evaluation in April 2019. At that time, audiometry revealed that puretone thresholds, in decibels, were: HERTZ 1000 2000 3000 4000 Average RIGHT 35 25 25 25 27.5 LEFT 30 30 25 25 27.5 Speech audiometry revealed speech recognition ability of 98 percent for the right ear and 98 percent in the left ear. See April 2019 VA examination. The Board finds that service connection for hearing loss is not warranted as there is no hearing loss for VA compensation purposes. 38 C.F.R. § 3.385. The VA examination report does not document auditory thresholds of 40 decibels or greater at any of the relevant frequencies, auditory thresholds of 26 decibels at least three of the frequencies, or speech recognition scores using the Maryland CNC Test of less than 94 percent. A hearing loss disability for VA purposes has simply not been present at any point during the appeal period, and the claim of entitlement to service connection for bilateral hearing loss must therefore be denied. In reaching this decision the Board considered the doctrine of reasonable doubt; however, as the preponderance of the evidence is against the Veteran's claim, the doctrine is not for application. Gilbert, 1 Vet. App. 49. REASONS FOR REMAND 1. Entitlement to service connection for sleep apnea is remanded. 2. Entitlement to service connection for right upper extremity carpal tunnel syndrome is remanded. 3. Entitlement to service connection for a cervical spine disability is remanded. The Board finds that remand is required for the remaining issues to correct a duty to assist error that occurred prior to the rating decision on appeal The record shows the Veteran has been diagnosed with sleep apnea, right upper extremity carpal tunnel syndrome, and a cervical spine disability. The Veteran has asserted that her claimed disabilities were caused by, or began in, her active-duty service. May 200 treatment notes as well as a May 2004 post deployment health assessment document in-service complaints of trouble sleeping. She also reports her trouble sleeping being related to her service-connected PTSD. The Veteran was also seen in December 2006, while on active duty, for complaints of neck pain and was diagnosed with cervical disc herniation with radiculopathy. Prior to the rating decision on appeal, the Veteran also submitted multiple buddy statements corroborating her in-service difficulty sleeping. There is insufficient evidence, however, for the Board to render a determination on her claims, as the Veteran has not been afforded a VA examination regarding her claimed sleep apnea or cervical spine disability, and the April 2019 VA examination of her carpal tunnel syndrome is inadequate, as it did not provide an etiological opinion regarding whether the disability had its onset in service or is otherwise related to service. VA has a duty to provide an examination or obtain a medical opinion on an issue of service connection when the record 1) contains competent evidence that the claimant has a current disability or signs and symptoms of a current disability, 2) indicates that the disability or signs and symptoms of a disability may be associated with active service, and 3) the record does not contain sufficient information to make a decision on the issue. 38 U.S.C. § 5103A(d); McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). The threshold for determining whether the evidence "indicates" that there "may" be a nexus between a current disability and an in-service event is a low one. McLendon, 20 Vet. App. at 83. As such, based on the record before the Board, a remand for VA examination is necessary to determine the nature and etiology of the Veteran's sleep apnea, right upper extremity carpal tunnel syndrome, and cervical spine disability. The Board will thus remand to correct this pre-decisional duty to assist error in failing to obtain such examinations and opinions. The matters are REMANDED for the following action: Obtain a VA examination to determine the nature and etiology of the Veteran's sleep apnea, right upper extremity carpal tunnel syndrome, and cervical spine disability. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the claims file, including a copy of this remand, the Veteran's service treatment records, post-service medical records, and statements. It should be noted that the Veteran is competent to attest to factual matters of which she had first-hand knowledge. If there is a medical basis to support or doubt the history provided by the appellant, the examiner should provide a fully reasoned explanation. The examiner must fully discuss the Veteran's and her buddies' contentions regarding the in-service onset and continuity thereafter of each claimed disability. After examining the Veteran and considering her pertinent medical history and lay statements regarding her reported symptoms, the examiner should opine as to: (a) Whether it is at least as likely as not that her sleep apnea was incurred in, aggravated by, or etiologically related to her military service, to include the multiple in-service reports of trouble sleeping. (b) Whether it is at least as likely as not that her right upper extremity carpal tunnel syndrome was incurred in, aggravated by, or etiologically related to her military service, to include the December 2006 diagnosis of cervical disc herniation with radiculopathy. (c) Whether it is at least as likely as not that her cervical spine disability was incurred in, aggravated by, or etiologically related to her military service, to include the December 2006 diagnosis of cervical disc herniation with radiculopathy. (d) Whether it is at least as likely as not that her sleep apnea was caused by her service-connected PTSD. (e) Whether it is at least as likely as not that her sleep apnea was aggravated by her service-connected PTSD. Aggravation is defined as any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the nonservice-connected disease. The examiner is advised that a finding that a disability was aggravated beyond the normal progression due to a service-connected disability does not require evidence of permanent worsening and may encompass any additional impairment in earning capacity resulting from an already service-connected condition. A clear rationale for all opinions must be provided and a discussion of the facts and medical principles involved would be of considerable assistance. Caroline B. Fleming Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Javed, 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.