Citation Nr: 0811715 Decision Date: 04/09/08 Archive Date: 04/23/08 DOCKET NO. 05-28 612A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Whether the reduction from 80 percent to 40 percent in the disability rating for hearing loss was proper. 2. Entitlement to two separate 10 percent ratings for tinnitus. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD W. R. Harryman, Counsel INTRODUCTION The veteran had active duty from September 1956 to August 1960 and from September 1961 to August 1967. This matter comes before the Board of Veterans' Appeals (Board) on appeal from decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. Concerning the tinnitus issue, the Board notes that an April 2005 rating decision, in part, denied an increased rating for tinnitus. In May 2005, the veteran filed a claim for separate 10 percent ratings for tinnitus, citing Smith v. Nicholson, 19 Vet. App. 63 (2005). The RO notified the veteran by letter dated May 21, 2005, that it was denying the claim for separate disability evaluations for tinnitus. The veteran's notice of disagreement filed in May 2005 referred to the May 21, 2005 letter and only addressed the denial of separate disability evaluations for tinnitus. The September 2005 statement of the case (SOC) essentially parroted the April 2005 rating decision denying an increased rating for tinnitus. The veteran's September 2005 and March 2006 VA Form 9s, however, discussed just the denial of separate ratings for bilateral tinnitus. The SOC regarding the reduction of the rating for hearing loss also discussed the denial of separate ratings for tinnitus. The Board construes the veteran's repeated statements regarding separate 10 percent ratings for tinnitus (and the absence of argument regarding an increased rating for tinnitus) as indicative of his desire to appeal only the issue concerning separate ratings, rather than the issue concerning an increased rating for tinnitus. FINDINGS OF FACT 1. A January 2003 rating decision assigned an 80 percent rating for hearing loss, effective from September 2002. 2. In April 2005, the RO issued a decision proposing to reduce the veteran's rating for hearing loss from 80 to 30 percent based on the results of audiometric testing, notified the veteran of the contemplated action and the reasons therefor, and informed him of his right to submit additional evidence and to appear at a hearing. 3. In August 2005, the RO implemented the proposed reduction to 30 percent, effective from November 1, 2005; as of that date, the veteran's hearing loss was manifested by Level VIII hearing in the right ear and Level V hearing in the left ear. 4. A rating decision in January 2006 assigned a 40 percent rating for hearing loss, effective from November 1, 2005; as of that date, the veteran's hearing loss was manifested by Level IX hearing in the right ear and Level V hearing in the left ear. 5. The veteran has a 10 percent rating for tinnitus, the maximum authorized under Diagnostic Code 6260. CONCLUSIONS OF LAW 1. The reduction in the evaluation for hearing loss, from 80 to 40 percent, was proper. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.105, 4.1, 4.7, 4.85, Code 6100 (2007). 2. There is no legal basis for assigning a schedular evaluation higher than 10 percent for tinnitus. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.87, Diagnostic Code 6260 (2005); Smith v. Nicholson, 451 F.3d 1344 (C.A. Fed., June 19, 2006). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Analysis A. Reduction in the rating for hearing loss The record shows that, in January 2003, the RO issued a rating decision that increased the rating for hearing loss from 30 percent to 80 percent, effective in September 2002. In an April 2005 rating decision, the RO proposed reducing the veteran's disability evaluation for hearing loss from 80 percent to 30 percent. In an August 2005 rating decision, the RO reduced the disability evaluation from 80 percent to 30 percent, effective from November 1, 2005. Later, a rating decision in January 2006 increased the 30 percent rating to 40 percent, effective from November 1, 2005, the date of the reduction. Thus, the issue in this case is now whether the reduction from 80 percent to 40 percent is proper. 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. In addition, 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. 38 C.F.R. § 3.105(e). By a rating decision and a letter to the veteran in May 2005, the RO satisfied these procedural requirements. After completing the predetermination procedures specified in 38 C.F.R. § 3.105(e), the RO must send the veteran written notice of the final action. This notice must set forth the reasons for the action and the evidence upon which the action is based. 38 C.F.R. § 3.105(e). Where a reduction of benefits is found warranted following consideration of any additional evidence submitted and the reduction was proposed under the provisions of 38 C.F.R. § 3.105(e), the effective date of the final action shall be the last day of the month in which a 60-day period from the date of notice to the beneficiary of the final action expires. 38 C.F.R. § 3.105(e). Here, the notice of the final action was sent in an August 2005 letter, and the effective date of the reduction was November 1, 2005. The RO satisfied the requirements by allowing a 60-day period to expire before assigning the reduction effective date. The question, then, is whether the reduction was proper, based on the evidence of record. Where a disability evaluation has continued at the same level for less than five years, that analysis is conducted under 38 C.F.R. § 3.344(c). Here, the veteran's 80 percent disability evaluation was awarded effective in September 2002, and was reduced effective November 1, 2005, slightly more than 3 years later. Accordingly, 38 C.F.R. § 3.344(c) applies. Under § 3.344(c), a reexamination that shows improvement in a disability warrants a reduction in the disability evaluation. The veteran's service-connected hearing loss is rated under Diagnostic Code 6100. Pursuant to Code 6100, disability ratings are assigned based on the numeric designation for each ear determined following audiometric testing. 38 C.F.R. § 4.85, Code 6100. On VA audiometric evaluation in December 2002, the veteran reported that his hearing had gradually decreased in both ears. Testing revealed an average pure tone threshold of 80 dB in his right ear, with a discrimination score of 20 percent, and an average pure tone threshold of 59 dB in his left ear, with a discrimination score of 36 percent. Using Table VI, those data correspond to Level XI hearing in the veteran's right ear and Level IX hearing in his left ear. Section 4.85 provides that, for those numeric designations, an 80 percent rating is to be assigned. The examiner noted that there appeared to be a slight decrease in the veteran's hearing, compared to testing one year earlier. She commented that the word discrimination scores were much more severe than prior testing and recommended retesting. However, an additional test was not conducted, and a rating decision in January 2003 increased the rating for the veteran's service- connected hearing loss to 80 percent, effective from September 20, 2002, the date of receipt of his claim for increase. An audiological evaluation was obtained in April 2005. That examination revealed an average pure tone threshold of 88 dB in the right ear, with a speech discrimination score of 88 percent, and an average pure tone threshold of 61 dB in the left ear, with a discrimination score of 72 percent. The examiner, who was the same examiner who evaluated the veteran in December 2002, stated that there had been no significant change in the pure tone thresholds since the December 2002 examination. She noted, however, that the veteran's speech reception thresholds had improved slightly. Using Table VI, those data correspond to Level IV hearing in the veteran's right ear and Level V hearing in his left ear, which is assigned a 10 percent rating using Table VII. The puretone thresholds for the veteran's right ear, however, meet the exceptional pattern of hearing impairment specified at 38 C.F.R. § 4.86(a). An average puretone threshold of 88 dB is assigned a numeric designation of VIII using Table VIa. When applied to Table VII with a level V hearing loss in the left ear, this would result in a rating of 30 percent rating. Accordingly, a rating decision in August 2005 reduced the rating for the veteran's hearing loss to 30 percent. The veteran then submitted the report of a private audiometric evaluation he had undergone in August 2005. That report displayed the audiometric findings in graphical format, which the Board cannot interpret. See Kelly v. Brown, 7 Vet. App. 471, 474 (1995). The examiner did not comment on the results of the examination. Another VA audiometric evaluation was obtained in December 2005 by the same examiner who had tested the veteran on the two prior examinations. She noted that the veteran reported there had been no change in his hearing. The examination revealed average pure tone thresholds of 91 dB in the right ear and 69 dB in his left ear. The examiner commented that the veteran's word recognition scores were not considered adequate for rating; she stated that the veteran would not repeat the words and would not even guess at them. She indicated that the speech reception thresholds were approximately 60 to 72 percent decreased compared to the last examination. The examiner provided no other recommendations. The regulations provide that Table VIa will be used when the examiner certifies that use of the speech discrimination test is not appropriate because of language difficulties or inconsistent speech discrimination scores. Table VIa is used to determine a Roman numeral designation (I through XI) for hearing impairment based only on the puretone threshold average. 38 C.F.R. § 4.85(c). The pure tone thresholds obtained in December 2005 correspond to Level IX hearing for the veteran's right ear and Level V for his left ear. The rating schedule provides that a 40 percent rating is warranted for those Numeric Designations. Accordingly, a rating decision in January 2006 increased the rating for the veteran's hearing loss to 40 percent, effective from November 1, 2005. The veteran disagreed with the reduction in the rating for his service-connected hearing loss. He argued that his hearing had not improved, but had actually worsened. He contended that the VA audiometric examinations were inadequate. Modern pure tone audiometry testing and speech audiometry utilized in VA audiological clinics are well adapted to evaluate the degree of hearing impairment accurately. Methods are standardized so that the performance of each person can be compared to a standard of normal hearing, and ratings are assigned based on that standard. The assigned evaluation is determined by mechanically applying the rating criteria to certified test results. Lendenmann v. Principi, 3 Vet. App. 345 (1992). Despite the veteran's contention as to the adequacy of the recent VA examinations, and his inability to provide valid word recognition scores in December 2005, there is no indication in the record that either the April 2005 or the December 2005 examination was inadequate for rating purposes. On the other hand, the examiner clearly indicated at the time of the December 2002 examination that she questioned the validity of the results of that testing, on which the increased 80 percent rating was based, and recommended re- testing. Unfortunately, another examination was not obtained at that time to verify the December 2002 test results, and an 80 percent rating was assigned using those test results. Moreover, the examiner did not question the results of the two audiometric evaluations in 2005 and the pure tone data, at least, were similar, further indicating that the December 2002 examination results were not accurate, and that the 2005 results were accurate. However, regardless of the accuracy of the December 2002 audiometric data and the 80 percent rating that was based on those data, there is no indication that the data obtained on the examinations in 2005 are inconsistent with each other or that they are otherwise erroneous. Nor do they indicate that the current 40 percent rating is not appropriate. Therefore, the Board finds that the medical evidence of record demonstrates that the RO's reduction of the disability evaluation for hearing loss from an 80 percent rating to a 40 percent rating was proper. Having determined that the RO fully complied with the procedures set forth at 38 C.F.R. § 3.105(e) to reduce the disability rating for the veteran's hearing loss, and that the assigned rating was warranted by the evidence, the Board concludes that the reduction from 80 percent to 40 percent in the rating for hearing loss was proper. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the appellant's claim, that doctrine is not applicable in the current appeal. 38 U.S.C.A. 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1991); Alemany v. Brown, 9 Vet. App. 518, 519 (1996). B. Separate ratings for tinnitus The record shows that a November 1993 rating decision granted service connection for tinnitus and assigned a 10 percent rating for the disability. An April 2005 rating decision denied an increased rating for tinnitus, and the RO notified the veteran in May 2005 that it had denied his claim for separate disability evaluations for tinnitus. In his May 2005 notice of disagreement, the veteran disagreed with the denial of separate 10 percent ratings for tinnitus in each ear. As discussed above, although the RO has also certified the issue concerning an increased rating for tinnitus, the Board construes the veteran's statements to indicate his desire to appeal only the issue relating to separate 10 percent ratings for his tinnitus. Tinnitus is evaluated under Diagnostic Code 6260, which was revised effective June 13, 2003, to clarify existing VA practice that only a single 10 percent evaluation is assigned for tinnitus, whether the sound is perceived as being in one ear, both ears, or in the head. 38 C.F.R. § 4.87, Diagnostic Code 6260, note 2 (2005). In Smith v. Nicholson, 19 Vet. App. 63 (2005), the United States Court of Appeals for Veterans Claims (Court) reversed a Board decision that found that, under pre-June 2003 regulations, no more than a single 10-percent rating could be provided for tinnitus, whether perceived as bilateral or unilateral. The Court held that pre-1999 and pre-June 13, 2003, versions of Diagnostic Code 6260 required that VA assign dual 10-percent ratings for "bilateral" tinnitus where it was perceived as affecting both ears. However, the United States Court of Appeals for the Federal Circuit (Federal Circuit) reversed the Court's decision in Smith and affirmed VA's long-standing interpretation of Diagnostic Code 6260 as authorizing only a single 10-percent rating for tinnitus, whether perceived as unilateral or bilateral. Smith v. Nicholson, 451 F.3d 1344 (C.A. Fed., June 19, 2006). Citing Supreme Court precedent, the Federal Circuit explained that an agency's interpretation of its own regulations was entitled to substantial deference by the courts as long as that interpretation was not plainly erroneous or inconsistent with the regulations. Finding there was a lack of evidence in the record suggesting that VA's interpretation of Diagnostic Code 6260 was plainly erroneous or inconsistent with the regulations, the Federal Circuit concluded the Court erred in not deferring to VA's interpretation. The net result of all of this is that Code 6260 precludes an evaluation higher than 10-percent for tinnitus. Therefore, the veteran's claim for separate 10 percent ratings for each ear for his tinnitus must be denied. And as the disposition of this claim is based on the law, and not the facts of the case, the claim must be denied based on a lack of entitlement under the law. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). II. Duties to notify and to assist VA has a duty to notify and to assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2007). Section 5103(a) specifies the notice that VA shall give to a claimant upon receipt of a complete or substantially complete application. See also 38 C.F.R. § 3.159(b). In a situation involving the reduction of a disability rating, however, the RO initiates the reduction; the claimant does not apply for a rating reduction. Any required notice in cases of rating reduction is satisfied by the notice provided pursuant to 38 C.F.R. § 3.105(e). As discussed above, the RO complied with the procedural requirements set forth in § 3.105(e). Therefore, no additional Section 5103(a) notice is needed regarding the issue concerning the reduction of the disability rating for the veteran's hearing loss. In addition, the U. S. Court of Appeals for Veterans Claims (Court) has held that the Section 5103(a) notice requirement does not apply to a claim if resolution of the claim is based on statutory interpretation, rather than consideration of the factual evidence. See Dela Cruz v. Principi, 15 Vet. App. 143, 149 (2001). For the issue concerning separate ratings for tinnitus, the facts are not in dispute. Resolution of the veteran's appeal of that issue is dependent on interpretation of the regulations pertaining to the assignment of disability ratings for tinnitus. Consequently, Section 5103(a) notice is not required for this issue. Also, because no reasonable possibility exists that further notice or assistance would aid in substantiating this claim, any deficiencies of the notice or assistance requirements are rendered moot. See 38 U.S.C.A. § 5103A; Wensch v. Principi, 15 Vet. App. 362, 368 (2001) (compliance is not required if no reasonable possibility exists that any notice or assistance would aid the appellant in substantiating the claim). ORDER The reduction from 80 percent to 40 percent in the disability rating for hearing loss was proper and the appeal of that tissue is denied. The claim for separate 10 percent ratings for tinnitus is denied. ____________________________________________ MARY GALLAGHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs