Citation Nr: 0815122 Decision Date: 05/07/08 Archive Date: 05/14/08 DOCKET NO. 07-19 981 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Lincoln, Nebraska THE ISSUE Whether reduction in the disability rating for bilateral hearing loss from 70 to 50 percent was proper, effective November 1, 2006. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARINGS ON APPEAL Appellant ATTORNEY FOR THE BOARD J. N. Moats, Associate Counsel INTRODUCTION The veteran had active duty service from March 1941 to August 1945. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2006 rating decision by a Regional Office (RO) of the Department of Veterans Affairs (VA). A notice of disagreement was received in March 2007, a statement of the case was issued in May 2007, and a substantive appeal was received in May 2007. A personal RO hearing was held in July 2006. Further, a Board hearing at the local RO was held in April 2008. The Board notes that the veteran submitted additional evidence to the Board at the April 2008 hearing. In an attached statement, the veteran waived RO consideration of this evidence. The Board granted a motion to advance this case on the docket due to the veteran's advanced age in April 2008. 38 C.F.R. § 20.900(c). FINDINGS OF FACT 1. An August 2006 rating decision decreased the rating for the veteran's service-connected bilateral hearing loss from 70 percent to 50 percent, effective November 1, 2006. 2. At the time of the August 2006 rating decision, the 70 percent rating for the veteran's service-connected bilateral hearing loss had been in effect for less than five years. 3. The medical evidence of record at the time of the August 2006 rating decision demonstrated a sustained improvement in the veteran's service-connected disability. CONCLUSION OF LAW The reduction of a rating evaluation for bilateral hearing loss from 70 percent to 50 percent was proper and the 50 percent disability rating remains effective from November 1, 2006. 38 U.S.C.A. §§ 1155, 5103A, 5107(b) (West 2002); 38 C.F.R. §§ 3.105, 3.344, Part 4, including §§ 4.7, 4.85, Diagnostic Code 6100 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION Veterans Claims Assistance Act of 2000 Under the Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107 and 5126; see also 38 C.F.R. §§ 3.102, 3.156(a), and 3.326(a), VA has a duty to notify the claimant of any information and evidence needed to substantiate and complete a claim, and of what part of that evidence is to be provided by the claimant and what part VA will attempt to obtain for the claimant. 38 U.S.C.A. § 5103(a); 38 C.F.R § 3.159(b)(1); Quartuccio v. Principi, 16 Vet.App. 183, 187 (2002). The record shows that in a January 2006 VCAA letter, the appellant was informed of the information and evidence necessary to warrant entitlement to the benefit sought on appeal. The appellant was also advised of the types of evidence VA would assist him in obtaining as well as his own responsibilities with regard to identifying relevant evidence. See Quartuccio v. Principi, 16 Vet.App. 183 (2002); Charles v. Principi, 16 Vet.App. 370 (2002). Although the January 2006 VCAA letter specifically addressed the issue of an increased rating, in Sanders v. Nicholson, 487 F.3d 881 (Fed. Cir. 2007), the United States Court of Appeals for the Federal Circuit held that any error by VA in providing the notice required by 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b)(1) is presumed prejudicial, and that once an error is identified as to any of the four notice elements the burden shifts to VA to demonstrate that the error was not prejudicial to the appellant. The Federal Circuit stated that requiring an appellant to demonstrate prejudice as a result of any notice error is inconsistent with the purposes of both the VCAA and VA's uniquely pro-claimant benefits system. Instead, the Federal Circuit held in Sanders that all VCAA notice errors are presumed prejudicial and require reversal unless VA can show that the error did not affect the essential fairness of the adjudication. To do this, VA must show that the purpose of the notice was not frustrated, such as by demonstrating: (1) that any defect was cured by actual knowledge on the part of the claimant, see Vazquez-Flores v. Peake, 22 Vet.App. 37 (2008). ("Actual knowledge is established by statements or actions by the claimant or the claimant's representative that demonstrates an awareness of what was necessary to substantiate his or her claim.") (citing Dalton v. Nicholson, 21 Vet.App. 23, 30-31 (2007)); (2) that a reasonable person could be expected to understand from the notice what was needed; or (3) that a benefit could not have been awarded as a matter of law. Sanders, 487 F.3d at 889. In the instant case, the Board finds that the veteran had actual knowledge of the requirements for a rate reduction as demonstrated by his hearing testimony in which he testified as to the effects his hearing loss had on his daily activities. Further, even though the January 2006 letter specifically addressed the requirements for an increased rating, the evidence and information requested is the same that would be required with respect to a rate reduction claim. Moreover, the veteran is represented by a National service organization that also has actual knowledge of the requirements in a rate reduction case. Thus, the Board finds no prejudice to the appellant in proceeding with the issuance of a final decision. See Bernard v. Brown, 4 Vet.App. 384, 394 (1993) (where the Board addresses a question that has not been addressed by the agency of original jurisdiction, the Board must consider whether the appellant has been prejudiced thereby). The Board also notes that the January 2006 VCAA letter notified the appellant of the need to submit any pertinent evidence in the appellant's possession. In this regard, the appellant was advised, at page 2, to submit any evidence in his possession that pertains to his claim. The Board concludes that the requirements of 38 C.F.R. § 3.159(b)(1) have been met. The Board finds that all notices required by VCAA and implementing regulations were furnished to the appellant and that no useful purpose would be served by delaying appellate review to send out additional VCAA notice letters. The United States Court of Appeals for Veterans Claims' (Court's) decision in Pelegrini v. Principi, 18 Vet. App. 112 (2004) held, in part, that a VCAA notice as required by 38 U.S.C. § 5103(a), must be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim for VA benefits. In this case, the RO provided VCAA notice to the veteran in January 2006, which was prior to the August 2006 rating decision. Accordingly, the requirements the Court set out in Pelegrini have been satisfied. Further, the notice requirements apply to all five elements of a service connection claim: 1) veteran status; 2) existence of a disability; (3) a connection between the veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. Dingess v. Nicholson, 19 Vet.App. 473 (2006). In the present appeal, the appellant was provided with notice of what type of information and evidence was needed to substantiate the claim. Further, a March 2006 letter gave notice of the types of evidence necessary to establish a disability rating and effective date for the disability on appeal. Moreover, the Board finds that there has been substantial compliance with the assistance provisions set forth in the law and regulations. The record in this case includes VA and private treatment records and VA examination reports. The Board finds that the record as it stands includes adequate competent evidence to allow the Board to decide the case and no further action is necessary. See generally 38 C.F.R. § 3.159(c)(4). No additional pertinent evidence has been identified by the claimant. The veteran was afforded VA examinations in August 2005 and February 2006. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4). The examination reports obtained contains sufficient information to decide the issue on appeal. See Massey v. Brown, 7 Vet.App. 204 (1994). Thus, the Board finds that a further examination is not necessary. For all the foregoing reasons, the Board concludes that VA's duties to the claimant have been fulfilled with respect to the issue on appeal. Analysis This appeal arises out of the veteran's disagreement with a decision to reduce the disability rating for his service- connected bilateral hearing loss from 70 percent to 50 percent disabling. A claim stemming from a rating reduction action is a claim as to whether the reduction was proper, not whether the veteran is entitled to an increased rating. See Dofflemyer v. Derwinski, 2 Vet.App. 277, 279-80 (1992). Disability evaluations are determined by the application of the Schedule for Rating Disabilities, which assigns ratings based on the average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two evaluations should be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Regulations provide that where the reduction in 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, rating action will be taken. The reduction will be made effective the last day of the month in which a 60-day period from the date of notice to the payee expires. The veteran will be notified of the proposed reduction, that he has 60 days to present evidence showing why the reduction should not be implemented, and that he may request a hearing. 38 C.F.R. § 3.105(e). The record shows that the veteran was granted a 70 percent rating for his bilateral hearing loss by rating decision dated June 2005. In a March 2006 rating decision, the RO proposed to reduce the disability rating to 50 percent. In August 2006, the RO reduced the veteran's disability rating for hearing loss to 50 percent, effective November 1, 2006. The criteria governing certain rating reductions for certain service connected disabilities is found in 38 C.F.R. § 3.344. The Court stated that this regulation applied to ratings that had been continued for long periods of time at the same level (five years or more). Brown v. Brown, 5 Vet.App. 413 (1993). In the present case, the 70 percent rating was in effect from March 14, 2005, less than 5 years, and thus the provisions of 38 C.F.R. § 3.344 pertaining to stabilization of disability evaluations do not apply; reexamination disclosing improvement will warrant a rating reduction. 38 C.F.R. § 3.344(c). Nevertheless, the Court noted in Brown that there are several general VA regulations that apply to all rating reductions regardless of whether the rating has been in effect for five years or more. Id. at 420-421. Specifically, 38 C.F.R. § 4.1 requires that each disability be viewed in relation to its history. Furthermore, 38 C.F.R. § 4.13 provides that the rating agency should assure itself that there has been an actual change in the condition, for better or worse, and not merely a difference in the thoroughness of the examination or in use of descriptive terms. Additionally, in any rating reduction case, not only must it be determined that an improvement in a disability has actually occurred, but that such improvement reflects improvement in ability to function under ordinary conditions of life and work. Brown, 5 Vet.App. at 420-21; see 38 C.F.R. §§ 4.2, 4.10. A claim as to whether a rating reduction was proper must be resolved in the veteran's favor unless the Board concludes that a fair preponderance of evidence weighs against the claim. Brown, 5 Vet.App. at 421. The current version of the Ratings Schedule provides a table for ratings purposes (Table VI) to determine a Roman numeral designation (I through XI) for hearing impairment, established by a state-licensed audiologist including a controlled speech discrimination test (Maryland CNC), and based upon a combination of the percent of speech discrimination and the puretone threshold average which is the sum of the puretone thresholds at 1000, 2000, 3000 and 4000 Hertz, divided by four. See 38 C.F.R. § 4.85. Table VII is used to determine the percentage evaluation by combining the Roman numeral designations for hearing impairment of each ear. The horizontal row represents the ear having the poorer hearing and the vertical column represents the ear having the better hearing. Id. Table VIA is used when the examiner certifies that the use of speech discrimination test is not appropriate because of language difficulties, inconsistent speech discrimination scores, etc., or when indicated under the provisions of 38 C.F.R. § 4.86. 38 C.F.R. § 4.85(c). When the puretone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) is 55 decibels or more, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or Table VIA, whichever results in the higher numeral. Each ear will be evaluated separately. 38 C.F.R. § 4.86(a). When the puretone threshold is 30 decibels or less at 1000 Hertz, and 70 decibels or more at 2000 Hertz, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or Table VIA, whichever results in the higher numeral. That numeral will then be elevated to the next higher Roman numeral. Each ear will be evaluated separately. 38 C.F.R. § 4.86(b). To evaluate the degree of disability from defective hearing, the rating schedule establishes eleven auditory acuity levels designated from I for essentially normal acuity, through XI for profound deafness. 38 C.F.R. § 4.85, Tables VI, VII. A 70 percent evaluation is warranted where hearing in the better ear is VIII and hearing in the poorer ear is XI; or where hearing in the better ear is IX and hearing in the poorer ear is X. A 50 percent evaluation is warranted where hearing in the better ear is VI and hearing in the poorer ear is X to XI; where hearing in the better ear is VII and hearing in the poorer ear is IX; or where hearing in the better ear is VIII and hearing in the poorer ear is VIII to IX. 38 C.F.R. § 4.85, Table VII, Diagnostic Code 6100. Pertinent case law provides that the assignment of disability ratings for hearing impairment are to be derived by the mechanical application of the Ratings Schedule to the numeric designations assigned after audiometry evaluations are rendered. Lendenmann v. Principi, 3 Vet.App. 345 (1992). The veteran's rating of 70 percent for his service connected bilateral hearing loss was primarily based on an April 2005 VA audiological examination. This evaluation showed pure tone thresholds, in decibels, as follows: HERTZ 1000 2000 3000 4000 RIGHT 50 85 90 100 LEFT 55 65 65 80 The puretone threshold average when rounded was 81 in the right ear and 66 in the left ear. The speech discrimination test revealed speech recognition ability of 28 in the right ear and 44 in the left ear. At the time of the April 2005 VA audiological examination, the veteran was shown to have an average puretone hearing loss of 81 decibels in the right ear, with 28 percent speech discrimination, which translates to a Roman numeral designation of XI for the right ear. Further, the veteran was shown to have an average puretone hearing loss of 66 decibels in the left ear, with 44 percent speech discrimination, which translates to a Roman numeral designation of VIII for the left ear. 38 C.F.R. § 4.85, Table VI. Thus, when applying Table VII, Diagnostic Code 6100, level XI for the right ear and level VIII for the left ear equates to a 70 percent disability evaluation. However, with respect to the left ear, since the veteran's puretone threshold was 55 decibels or more at all four specified frequencies, it must be determined whether a higher Roman numerical designation would result under Table VIA. At the time of the April 2005 VA audiological examination, the veteran was shown to have an average puretone hearing loss in the left ear of 66 decibels, which translates to a Roman numeral designation of V for the left ear. 38 C.F.R. § 4.85, Table VIA. However, as the Roman numeral designation was actually less for the left ear under table VIA, it is more beneficial to the veteran to apply Table VI as done above. Further, as the puretone threshold was not 55 decibels or more at all four specified frequencies in the right ear, Table VIA cannot be applied to this ear as each ear is evaluated separately. 38 C.F.R. § 4.86. Thus, in the June 2005 rating decision, the RO assigned a 70 percent disability evaluation for the veteran's bilateral hearing loss, effective March 14, 2005. The veteran was afforded another VA audiological examination in August 2005 in association with a claim for a total disability rating based on individual unemployability. At this examination, the pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 RIGHT 50 85 90 100 LEFT 55 65 65 80 The puretone threshold average when rounded was 81 in the right ear and 66 in the left ear. The Maryland CNC speech discrimination test revealed speech recognition ability of 40 percent in the right ear and 60 percent in the left ear. At the time of the August 2005 VA examination, the veteran was shown to have an average puretone hearing loss of 81 decibels in the right ear, with 40 percent speech discrimination, which translates to a Roman numeral designation of IX for the right ear. Further, the veteran was shown to have an average puretone hearing loss of 66 decibels in the left ear, with 60 percent speech discrimination, which translates to a Roman numeral designation of VII for the left ear. 38 C.F.R. § 4.85, Table VI. Thus, when applying Table VII, Diagnostic Code 6100, level IX for the right ear and level VII for the left ear equates to a 50 percent disability evaluation. However, again, with respect to the left ear, since the veteran's puretone threshold was 55 decibels or more at all four specified frequencies, the Board must determine whether a higher Roman numerical designation would result under Table VIA. At the time of the August 2005 VA examination, the veteran was shown to have an average puretone hearing loss in the left ear of 66 decibels, which translates to a Roman numeral designation of V for the left ear. 38 C.F.R. § 4.85, Table VIA. Again, as the Roman numeral designation is actually less for the left ear under table VIA, it is more beneficial to the veteran to apply Table VI as done above. Further, as the puretone threshold was not 55 decibels or more at all four specified frequencies in the right ear, Table VIA cannot be applied to this ear as each ear is evaluated separately. 38 C.F.R. § 4.86. VA treatment records showed that in November 2005, the veteran had an audiological evaluation for hearing aid purposes. The examiner noted that the veteran was last evaluated in August 2005 and that his hearing was essentially unchanged with the exception of the word recognition in the right ear. Results reported then were significantly poorer than those recorded in August. However, the examiner indicated that those results should be viewed with caution as many of the errors were a result of failure to respond to a stimulus word. The veteran appeared tired and seemed to have difficulty focusing on the task. The Board observers that as it is not apparent on its face that the examiner used the Maryland CNC test, this evaluation is insufficient for rating purposes. 38 C.F.R. § 4.85. Regardless, the veteran was afforded another VA audiological examination in accordance with VA regulations just three months later in February 2006. The February 2006 VA audiological examination, which showed pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 RIGHT 50 80 85 95 LEFT 50 65 65 90 When rounded, the puretone threshold average was 78 in the right ear and 68 in the left ear. The Maryland CNC speech discrimination test revealed speech recognition ability of 36 percent in the right ear and 58 percent in the left ear. At the time of the February 2006 VA audiological examination, the veteran was shown to have an average puretone hearing loss of 78 decibels in the right ear, with 36 percent speech discrimination, which translates to a Roman numeral designation of IX for the right ear. Further, the veteran was shown to have an average puretone hearing loss of 68 decibels in the left ear, with 58 percent speech discrimination, which translates to a Roman numeral designation of VIII for the left ear. 38 C.F.R. § 4.85, Table VI. Thus, when applying Table VII, Diagnostic Code 6100, level IX for the right ear and level VIII for the left ear again equates to a 50 percent disability evaluation. Based on the February 2006 VA examination, table VIA is not for application because the veteran's puretone threshold was not 55 decibels or more at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz), nor was his puretone threshold 30 or lower at 1000 Hertz and 70 or more at 2000 Hertz. See 38 C.F.R. §§ 4.85(c), 4.86(a) and (b). Although the claims file was not available for review at the February 2006 VA examination, given the examiner conducted an audiological evaluation in accordance with 38 C.F.R. § 4.85 and the examination report sets forth detailed examination findings in a manner which allows for informed appellate review under applicable VA laws and regulations, the Board finds the examination to be sufficient for rating purposes. Thus, the Board finds no prejudice to the veteran in proceeding with the issuance of a final decision based on the August 2005 and February 2006 VA examinations. See Bernard v. Brown, 4 Vet.App. 384, 394 (1993). Therefore, after reviewing the evidence, the Board finds that the record reflects actual improvement of the disability itself to include the veteran's ability to function under the ordinary conditions of life and work. Significantly, the August 2005 and February 2006 VA examinations were done with the express purpose of ascertaining the current level of severity of the veteran's hearing. The examinations were conducted using the Maryland CNC test in accordance with 38 C.F.R. § 4.85(a). Thus, when applying VA audiological examinations from August 2005 and February 2006 to the rating criteria, the Board finds that the rate reduction as of November 1, 2006 was proper. The Board has also considered the veteran's hearing testimony as well as statements from his children and friend indicating that the veteran's hearing has gotten worse and the impact of his service-connected bilateral hearing loss on his daily activities. However, as previously noted, because assignment of disability ratings for hearing impairment are derived by a mechanical application of the rating schedule to the numeric designations assigned after audiometry evaluations are rendered, there is no doubt as to the proper evaluation to assign. Lendenmann, 3 Vet.App. 345; 38 C.F.R. § 4.85, Tables VI and VII, Diagnostic Code 6100. Thus, these statements have minimal probative value when weighed against the medical evidence of record. At the time of his hearing, the veteran also questioned how examination results could be "so different." A review of the pertinent examinations in this case that met regulatory standards under 38 C.F.R. § 4.85 shows that the two crucial examinations, showing somewhat better speech discrimination from a prior examination, were consistent with each other and not dramatically different from the earlier examination that was initially used to assign a rating. Additionally, the VA treating examiner in November 2005 noted several factors that could account for variations in test results, such as fatigue or lack of focus. In sum, the evidence of record appears to support the currently assigned rating. The Board recognizes that the veteran was afforded another VA examination in May 2007. Further, the claims file also includes December 2006 and February 2007 private audiological evaluations as well as a March 2008 VA audiological evaluation. However, as this medical evidence did not exist at the time of the rate reduction, it cannot be considered with respect to whether the reduction was proper. Nevertheless, the Board notes that the private evaluations and March 2008 VA audiological evaluation would however be insufficient for rating purposes as it does not appear that the examiners used the Maryland CNC test as required by regulation under 38 C.F.R. § 4.85(a). Further, the private reports would also be considered insufficient for rating purposes under 38 C.F.R. § 4.85 because the audiologists did not clearly state the puretone thresholds, in decibels, but rather provided a frequency chart that must be interpreted. Further, the May 2007 VA examination showed that, when rounded, the puretone threshold average was 81 in the right ear and 59 in the left ear. The Maryland CNC speech discrimination test revealed speech recognition ability of 40 percent in the right ear and 56 percent in the left ear. These results translate to a Roman numeral designation of IX for the right ear and VII for the left ear. 38 C.F.R. § 4.85, Table VI. Thus, when applying Table VII, Diagnostic Code 6100, level IX for the right ear and level VII for the left ear also equates to a 50 percent disability evaluation. Further, applying Table VIA to the right ear would also not provide for a higher rating. The Board is bound in its decisions by the regulations of the Department. 38 U.S.C.A. § 7104(c). The supplementary information included with the publication of the revisions to the Schedule for rating hearing loss (64 FR 25206 (May 11, 1999)) discusses VA's choice of methodology employed for determining impairment of auditory acuity. In short, the use of the Maryland CNC speech discrimination test and the puretone threshold average determined by an audiometry test was established by a regulation for evaluating hearing loss published in the Federal Register on November 18, 1987 (52 FR 44117). That regulation changed the method of evaluating hearing loss based on a VA study on hearing loss testing methods and assistive hearing devices that Congress had requested in 1984. The results of this study were published by VA in a January 1986 report entitled "Report on Hearing Loss Study. "This long-standing methodology was properly administered in this case, and there is no evidence that VA improperly interpreted the testing results. The evaluations derived from the Schedule are intended to make proper allowance for improvement by hearing aids. Veterans Health Administration (VHA) consultants have "indicated that it is well accepted in the audiological literature that the better the speech discrimination score, the better the overall result with hearing aids . . ." See 64 FR 25200, 25204 (May 11, 1999). The schedular criteria are specific, and, regrettably, the veteran's hearing loss, as found by competent rating specialists, justified the reduction. See Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). The Schedule does provide for modified rating of "exceptional patterns of hearing impairment." See 38 C.F.R. § 4.86(b). This provision was meant to compensate for a pattern of hearing impairment that is an extreme handicap in the presence of environmental noise. VHA has concluded that when this pattern of impairment is present, a speech discrimination test conducted in a quiet room with sounds amplified does not always reflect the extent of impairment experienced in an ordinary environment. See 64 FR 25200, 25203 (May 11, 1999). Yet no such exceptional pattern of hearing impairment has been demonstrated in this case during the relevant timeframe that justifies other than the currently-assigned rating. In conclusion, the Board finds that a preponderance of the evidence supports the reduction and that restoration of the 70 percent rating is not warranted. As the preponderance of the evidence weighs against the claim, the benefit-of-the- doubt doctrine does not apply. See 38 U.S.C.A. § 5107(b). ORDER Entitlement to restoration of a 70 percent rating for service-connected bilateral hearing loss is not warranted. The appeal is denied. ____________________________________________ M. SABULSKY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs