BVA9507224 DOCKET NO. 91-42 873 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Manila, Philippines THE ISSUES 1. Entitlement to restoration of a 20 percent rating for residuals of a fractured right clavicle (reduced to 10 percent). 2. Entitlement to restoration of a 40 percent rating for bilateral hearing loss (reduced to zero percent). REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARINGS ON APPEAL Appellant, his spouse, and his son-in-law ATTORNEY FOR THE BOARD Joseph P. Gervasio, Jr., Counsel INTRODUCTION The veteran served on active duty from March 1946 to March 1949. This appeal came to the Board of Veterans' Appeals (Board) from a May 1988 decision by the Department of Veterans Affairs (VA), Manila, Philippines, Regional Office (RO) which reduced the veteran's evaluation for his service-connected residuals of a fractured right clavicle from 20 percent to 10 percent, and reduced his evaluation for his bilateral hearing loss from 40 percent to zero percent. The case was before the Board in February 1992 at which time it was remanded for additional development of the evidence. The case was returned to the Board and remanded in July 1993. It was again remanded, by letter, in December 1993 in order to provide the veteran with an opportunity to testify at a hearing at the RO. The case was returned to the Board in September 1994. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that his right clavicle fracture residuals and bilateral hearing loss are as disabling as they were in 1978 when 20 percent and 40 percent evaluations were assigned for the respective disabilities. He argues that those ratings should be restored. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991), has reviewed and considered all of the evidence and material of record in the veteran's claims file. Based on its review of the relevant evidence in this matter, and for the following reasons and bases, it is the decision of the Board that the preponderance of the evidence is against restoration of a 20 percent rating for the residuals of a right clavicle fracture, and that the evidence supports restoration of a 40 percent evaluation for bilateral hearing loss. FINDINGS OF FACT 1. Service-connected residuals of a right clavicle fracture were rated 20 percent since 1978, and the RO reduced the rating to 10 percent in 1988. 2. The 1988 rating reduction for the right clavicle condition was based on a full and complete examination showing material and sustained improvement which would continue under the normal conditions of life; the right clavicle condition is manifested by malunion of the bone with slight limitation of motion, and the arm can be raised well above the shoulder level. 3. Service-connected bilateral hearing loss was rated 40 percent since 1978, and the RO reduced the rating to zero percent in 1988. 4. Medical evidence shows no improvement in the bilateral hearing loss either at the time of the 1988 rating reduction or since then; and hearing acuity in each ear corresponds to literal designation "D" under rating criteria in effect prior to December 18, 1987. CONCLUSIONS OF LAW 1. The criteria for restoration of a 20 percent rating, reduced to 10 percent, for residuals of a fracture of the right clavicle have not been met. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. §§ 3.105, 3.344, 4.71a, Code 5203 (1994). 2. The criteria for restoration of a 40 percent rating for bilateral hearing loss have been met. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. §§ 3.105, 3.344, 3.951 (1994); 38 C.F.R. § 4.85, Code 6288 (effective prior to December 18, 1987). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Factual Background The veteran served on active duty from March 1946 to March 1949. Service medical records show that in November 1947 the veteran sustained a simple, complete comminuted fracture of the right clavicle. At a physical examination conducted in February 1949 in connection with his separation from service, it was observed he had a bilateral hearing defect of 10/15, the cause of which was undetermined. It was also noted he had dislocated his right shoulder but had no complications or sequelae. By rating action in September 1952, the RO granted service connection for the residuals of a fractured right clavicle with deformity and assigned a 10 percent evaluation. By rating action in November 1952, the RO granted service connection for bilateral hearing loss and assigned a zero percent evaluation. By rating action in December 1971, the RO granted the veteran a 20 percent evaluation for bilateral hearing loss, effective from March 1971. An examination was performed by the VA in December 1978. Examination of the right shoulder showed the mid shaft of the right clavicle was deformed and bulged out. Abduction of the right shoulder was limited to 85 degrees. Forward flexion was accomplished to 90 degrees. X-ray studies compared with previous films showed no significant change in the old healed fracture deformity of the right clavicle. The diagnoses were old healed malunited fracture of the right clavicle with limitation of motion of the right shoulder. The veteran underwent an audiometric examination in December 1978. The pure tone thresholds at 500, 1,000 and 2,000 hertz averaged 60 decibels, none more than 65, in the right ear; and the average was 63.1 decibels, none more than 65, in the left ear. Speech reception thresholds were 60 decibels with a 100 percent correct discrimination ability in the right ear; and 65 decibels with discrimination ability of 92 percent correct in the left ear. An RO rating action in January 1979 assigned a 40 percent evaluation for a bilateral hearing defect and a 20 percent evaluation for the residuals of a fractured right clavicle with limitation of right shoulder motion, both effective in August 1978. In a September 1987 statement, Eduardo C. Enojado, M.D. reported that the veteran had various complaints including progressive loss of hearing in both ears. On examination there reportedly were marked signs of deafness, mixed type, in both ears. There were reportedly also marked signs of arthritic pain of the midclavicular joint on the right and limitation of shoulder motion. The diagnoses included total deafness of both ears, mixed type, and a right clavicular fracture with limitation of motion of the right shoulder. In October 1987 the veteran filed claims for increased ratings for hearing loss and the residuals of a fracture of the right clavicle. An examination was performed by the VA in November 1987. Examination of the musculoskeletal system disclosed a slight anterior angulation of the mid right clavicle. There was no tenderness and no limitation of motion of the right shoulder. X-ray films of the right clavicle showed a slight overriding of the fracture fragments; the fracture appeared to be completely healed; and the radiologist's impression was old healed malunited fracture of the mid shaft of the right clavicle. The clinical diagnosis was healed fracture of the right clavicle. An audiometric examination was conducted by the VA in November 1987. Following the examination, the VA audiologist stated that pure tone thresholds averaged 67 decibels, none more than 70, in the right ear; and averaged 87 decibels, none more than 95, in the left ear, at 500, 1000 and 2000 hertz. Speech reception thresholds were 55 decibels in the right ear and 60 decibels in the left ear. It was remarked that the veteran presented with inconsistent responses throughout the test procedure; there was gross exaggeration of the hearing thresholds; and it was recommended that he be retested after three months. In April 1988, an audiological examination was conducted at Clark Air Force Base. At that time, the ascending and descending pure tone air conduction thresholds were obtained at 500, 1,000 and 2,000 hertz, bilaterally. It was noted there were large ascending and descending differences and a large discrepancy between the pure tone average and the speech reception thresholds. The assessment was pseudohypacusic test behavior. It was noted the veteran's true hearing thresholds were not obtained due to his lack of cooperation during testing. It was suggested that further testing procedures be accomplished which could not be undertaken at that facility. In May 1988, the RO reduced the evaluation of the residuals of a fracture of the right clavicle to 10 percent disabling and the evaluation of hearing loss to zero percent. Both reductions were effective in August 1988, and the veteran was notified of the intended reduction and his right to submit evidence. The rating decision and an RO letter to the veteran noted that the 40 percent rating for hearing loss was being reduced to zero percent because true hearing thresholds could not be obtained on the last VA examination due to lack of cooperation by the veteran. In a statement, dated in July 1989, Domingo S. Tuanqui, M.D., indicated that he had examined the veteran for various complaints, including an inability to hear ordinary voice at a very short distance because of bilateral deafness, and a fracture of the right clavicular joint with limitation of motion, pain, and tenderness of the right shoulder joint. On examination, the veteran reportedly had limitation of motion of the right shoulder and a marked sign of bilateral severe deafness. The diagnoses included severe deafness of both ears, fracture of the right shoulder joint with limitation of motion, and osteoarthritis of the right shoulder joint. An examination was conducted by the VA in March 1990. Examination of the right shoulder showed a prominent right clavicle. Abduction was limited to 130 degrees, forward flexion was limited to 150 degrees, and external and internal rotation were limited to 60 degrees. An X-ray study showed an old healed malunited fracture of the mid shaft of the right clavicle, unchanged from prior studies. The diagnosis was an old healed malunited fracture of the mid shaft of the right clavicle. In March 1990 the veteran also underwent a VA audiometric examination. Pure tone audiometry showed decibel thresholds, at 500, 1,000, 2,000, 3,000, and 4,000 hertz, of 80, 80, 85, 85, and 95, respectively, for the right ear; and 65, 65, 65, 60, and 65, respectively, for the left ear. Speech audiometry showed speech reception thresholds of 60 decibels for the right ear and 40 decibels for the left ear; and speech recognition ability was 100 percent correct for both ears. The audiologist commented that true hearing levels seemed to be closer to speech reception and reflex thresholds than to pure tone averages. Potenciana Dilag-Principi, M.D., submitted a report in October 1990 that was to the effect the veteran's hearing loss had been progressive and the present audiogram showed severe sensorineural hearing loss in the right and profound sensorineural hearing loss in the left. A chart of the recent audiogram was submitted. Dr. Mariane G. Kilates reported in a November 1990 statement, that the veteran had complaints of right clavicular region pain aggravated under pressure and an impairment of hearing. X-rays reportedly showed an old right clavicle fracture with callus formation. The doctor's recommendation was increased compensation. In August 1991, the veteran, his wife, and son-in-law testified at a hearing before a hearing officer at the RO. The veteran stated that there had been no improvement in his hearing or physical condition. The veteran's wife stated that they were always quarreling because of his hearing problem. The veteran's son-in-law stated that the veteran had a problem answering his questions. In March 1992, the veteran underwent a VA audiological examination. Pure tone decibel thresholds at 500, 1,000, 2,000, 3,000, and 4,000 hertz were 55, 55, 55, 60, and 70, respectively, for the right ear; and 50, 50, 60, 60, and 65, respectively, for the left ear. Speech reception thresholds were 40 for the right ear and 40 for the left ear. Speech recognition was 98 percent correct for the right ear and 100 percent correct for the left ear. The veteran was considered to have moderate bilateral sensorineural hearing loss, with speech reception thresholds slightly better than pure tone thresholds. In April 1992, a brainstem auditory evoked response test was performed for the VA. The VA audiologist stated that this testing was consistent with a bilateral sensorineural hearing loss In August 1992, Dr. Dilag-Principi reported the veteran had severe sensorineural hearing loss on the right and profound sensorineural hearing loss on the left. A copy of a recent audiometry chart was submitted. In July 1993, the veteran underwent a VA audiometric examination. The examiner stated that the veteran had severe sensorineural hearing loss, with pure tone audiometric thresholds appearing to reliably estimate the degree of organic hearing loss. Pure tone decibel thresholds at 500, 1,000, 2,000, 3,000, and 4,000 hertz, were 75, 75, 85, 80, and 85, respectively, for the right ear; and 80, 75, 75, 75, and 80, respectively, for the left ear. Speech recognition was 90 percent correct for the right ear and 100 percent correct for the left ear. The audiologist noted that pure tone decibel threshold averages (at 1,000, 2,000, 3,000, and 4,000 hertz) were 81.2 for the right ear and 76.2 for the left ear. The pure tone thresholds at 500, 1000, and 2000 hertz averaged 78 decibels, none more than 85, in the right ear; and averaged 77 decibels, none more than 80, in the left ear. The examiner stated that using the old rating criteria in use prior to December 1987, the hearing acuity was level "D" in each ear. In February 1994 the veteran and his wife testified at another RO hearing. They generally asserted that the disabilities in issue continued and that prior rating should be restored. II. Analysis It is initially noted that the veteran's claims on appeal are well grounded; that is, they are not inherently implausible. 38 U.S.C.A. § 5107(a). It is also found that the facts relevant to the issues on appeal have been properly developed and the statutory obligation of the VA to assist the veteran in the development of his claims has been satisfied. Id. A. Restoration of a 20 Percent Rating for Residuals of a Fractured Right Clavicle (reduced to 10 percent) Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Separate diagnostic codes identify the various disabilities. Malunion of the clavicle or scapula, or nonunion without loose movement, warrants a 10 percent evaluation. A 20 percent evaluation requires nonunion with loose movement or dislocation. These disabilities may also be rated on the basis of impairment of function of the contiguous joint. 38 C.F.R. § 4.71a, Code 5203. Limitation of motion of the arm to shoulder level warrants a 20 percent rating for either a major or minor extremity. 38 C.F.R. § 4.71a, Code 5201. Examinations less full or complete than those on which payments were authorized or continued will not be used as a basis for reduction. Ratings on account of diseases subject to temporary or episodic improvement will not be reduced on any one examination, except in those instances where all the evidence of record clearly warrants the conclusion that sustained improvement has been demonstrated. Moreover, though material improvement in the condition is clearly reflected, consideration will be given to whether the evidence makes it reasonably certain that the improvement will be maintained under the ordinary conditions of life. These provisions apply to ratings which have continued for long periods of time (five years or more); they do not apply to disabilities which have not become stabilized and are likely to improve. 38 C.F.R. § 3.344. The veteran's 20 percent evaluation for residuals of a fracture of the right clavicle had been in effect since 1978, well over five years. Thus, 38 C.F.R. § 3.344 applies to his case. However, after careful review of the evidence of record, the Board finds that material and sustained improvement of the right clavicle fracture residuals has been demonstrated and the 1988 reduction to 10 percent was proper. In this regard it is noted that on examination in December 1978, the veteran was only able to raise his right arm to the shoulder level. Therefore, he met the criteria for a 20 percent rating under diagnostic code 5201. On examination in November 1987 he had full range of motion of the shoulder and no tenderness. Malunion of the old healed clavicle fracture was noted, but there was no significant functional impairment. The examination was full and complete, and the evidence clearly showed improvement, so that the disability was no more than 10 percent disabling under Code 5203. There was no evidence of recent treatment for the condition, and the findings and nature of the condition made it reasonably certain that the improvement would be maintained under the ordinary conditions of life. The Board finds that the RO properly followed 38 C.F.R. § 3.344, and the reduction was warranted by the May 1988 decision. Moreover, the RO complied with 38 C.F.R. § 3.105(e), by making the reduction effective in August 1988, and giving the veteran an opportunity to submit evidence. Evidence subsequent to the reduction verifies that the veteran's right clavicle condition continues to be no more than 10 percent disabling. In March 1990 he was again examined and, although some slight limitation of motion was demonstrated, he was able to raise his arm well above the shoulder level. The private medical statements submitted by the veteran, both before and after the reduction, and the hearing testimony, lack the detailed clinical findings found on the VA examinations and are considered of little probative value as to the true severity of the right clavicle condition and as to whether the condition improved. In this particular case, the VA examination findings are the most credible and support the reduction in the rating from 20 percent to 10 percent. The preponderance of the evidence is against the claim for restoration of the 20 percent rating for the right clavicle disability. Thus, the benefit-of-the-doubt doctrine does not apply, and the claim must be denied. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet.App. 49 (1990). B. Restoration of a 40 Percent Rating for Bilateral Hearing Loss (reduced to zero percent) Evaluations of bilateral hearing loss range from noncompensable to 80 percent based on organic impairment of hearing acuity within the conversational voice range (500 to 2,000 cycles per second) as measured by the results of controlled speech reception tests or pure tone audiometry reported on VARO or authorized audiology clinic examinations. 38 C.F.R. § 4.85 et seq., Codes 6277 to 6297, effective prior to December 18, 1987. Evaluations of bilateral defective hearing range from noncompensable to 100 percent based on organic impairment of hearing acuity as measured by the results of controlled speech discrimination tests together with the average hearing threshold level as measured by pure tone audiometry tests in the frequencies 1,000, 2,000, 3,000 and 4,000 cycles per second. To evaluate the degree of disability from bilateral service- connected defective hearing, the revised rating schedule establishes eleven auditory acuity levels designated from level I for essentially normal acuity through level XI for profound deafness. 38 C.F.R. § 4.85 et seq., Codes 6100 to 6110; effective December 18, 1987. In this case, the veteran's 40 percent rating for hearing loss disability, which had been in effect since 1978, was reduced in the 1988 RO rating decision because it was considered that he had not fully cooperated with the November 1987 examination. Noting the observations of the examining audiologist, that the veteran had given inconsistent and exaggerated responses, the RO found that true hearing thresholds could not be determined and that the disability should be rated zero percent. When the veteran sought to have his rating reestablished, he was evaluated under new criteria that became effective in December 1987. The evidence, including the 1993 VA audiometric test, shows that the veteran's hearing loss is, indeed, zero percent disabling under the new rating criteria. A major question in this case is whether the veteran's hearing loss may continue to be rated under the old criteria. The law provides that a readjustment to the VA's rating schedule shall not be grounds for reduction of a disability rating in effect on the date of the readjustment unless medical evidence establishes that the disability to be evaluated has actually improved. 38 U.S.C.A. § 1155; 38 C.F.R. § 3.951(a); Fugere v. Derwinski, 1 Vet.App. 103 (1990). Giving the veteran the full benefit of the doubt, 38 U.S.C.A. § 5107(b), the Board finds that the November 1987 VA examination, as well as subsequent examinations, did not show medical improvement in his hearing loss, notwithstanding some indication that he exaggerated his responses during testing. Therefore, the hearing loss may continue to be rated under the old criteria. The evidence as a whole shows that under the old rating criteria, the veteran's bilateral hearing loss continues to be 40 percent disabling. The most reliable audiology examination during the pendency of this claim is the one conducted by the VA in 1993. On that examination, pure tone audiometry (which the examiner felt was the most reliable test) at the frequencies of 500, 1,000, and 2,000 hertz (frequencies relevant to the old criteria) rendered results which correspond to literal designation "D" of the old criteria, which, in turn, is to be rated 40 percent under Code 6288. For these reasons, restoration of the 40 percent rating for bilateral hearing loss is warranted. ORDER Restoration of a 20 percent rating for residuals of a fracture of the right clavicle is denied. Restoration of a 40 percent rating for bilateral hearing loss is granted. L. W. TOBIN Member, Board of Veterans' Appeals The Board of Veterans' Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___ (1994), permits a proceeding instituted before the Board to be assigned to an individual member of the Board for a determination. This proceeding has been assigned to an individual member of the Board. NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991), a decision of the Board of Veterans' Appeals granting less than the complete benefit, or benefits, sought on appeal is appealable to the United States Court of Veterans Appeals within 120 days from the date of mailing of notice of the decision, provided that a Notice of Disagreement concerning an issue which was before the Board was filed with the agency of original jurisdiction on or after November 18, 1988. Veterans' Judicial Review Act, Pub. L. No. 100-687, § 402 (1988). The date which appears on the face of this decision constitutes the date of mailing and the copy of this decision which you have received is your notice of the action taken on your appeal by the Board of Veterans' Appeals.