Citation Nr: 1102012 Decision Date: 01/18/11 Archive Date: 01/26/11 DOCKET NO. 10-33 462 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUES 1. Entitlement to restoration of a 40 percent evaluation for bilateral hearing loss disability. 2. Entitlement to an increased rating for bilateral hearing loss disability, currently evaluated as 30 percent disabling. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD J. Barone, Counsel INTRODUCTION Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2010). 38 U.S.C.A. § 7107(a)(2) (West 2002). The Veteran had active service from January 1954 to January 1984. This matter comes before the Board of Veterans' Appeals (Board) from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Louisville, Kentucky. FINDINGS OF FACT 1. In November 2008, the RO notified the appellant of a proposal to reduce the evaluation for bilateral hearing loss disability from a 40 percent schedular evaluation to a 30 percent evaluation based evidence showing that the severity of the disability had improved. 2. A July 2009 rating decision reduced the 40 percent schedular evaluation assigned for bilateral hearing loss disability to 30 percent, effective October 1, 2009. 3. At the time of the reduction, a 40 percent evaluation for the appellant's disability had been in effect since June 30, 2006, less than five years. 4. The evidence reflects an improvement of the service-connected bilateral hearing loss disability so as to warrant a reduction in the assigned evaluation from 40 percent to 30 percent. 5. During the appeal period, bilateral hearing loss disability has been manifested, at worst, Level VII hearing loss in the right ear and Level VI hearing loss in the left ear. CONCLUSIONS OF LAW 1. The criteria for restoration of a 40 percent evaluation for bilateral hearing loss disability have not been met. 38 U.S.C.A. §§ 1155, 5103(a), 5103A, 5112 (West 2002); 38 C.F.R. §§ 3.105, 3.344, 4.1, 4.2, 4.3, 4.6, 4.118, Diagnostic Code 6100 (2010). 2. The criteria for an evaluation in excess of 30 percent for bilateral hearing loss disability have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.85, 4.118, Tables VI, VIA, VII, Diagnostic Code 6100 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2010). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2010); 38 C.F.R. § 3.159(b) (2010); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. VCAA notice should be provided to a claimant before the initial unfavorable RO decision on a claim. See Pelegrini v. Principi, 18 Vet. App. 112 (2004); Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). On March 3, 2006, the Court of Appeals for Veterans Claims (Court) issued a decision in the consolidated appeal of Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), which held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: 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. The Court held that upon receipt of an application for a service-connection claim, 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating or is necessary to substantiate the elements of the claim as reasonably contemplated by the application. Id. at 486. The Board notes that this appeal stems from disagreement with a 38 C.F.R. § 3.105(e) reduction and is not based on a claim or application for benefits. The regulations pertaining to the reduction of evaluations for compensation contain their own notification and due process requirements, which will be discussed in greater detail below. See 38 C.F.R. § 3.105(e), (i) (2010). For this reason, the Board concludes that the VCAA does not apply to the claim decided herein. However, even if the Board is in error and VCAA fully applies under the circumstances of this case, the Board further concludes that any error in VA's compliance with the duties to notify and to assist are not prejudicial. A letter dated in May 2008 in response to a claim for individual unemployability also discussed the manner in which VA determines disability ratings and effective dates. The letter also discussed the evidence necessary to support an increased rating. The Veteran was invited to submit or identify evidence showing that his service-connected disabilities had worsened. The evidence of record was listed and the Veteran was told how VA would assist him in obtaining additional relevant evidence. A November 2008 rating decision proposed a reduction in the evaluation of the Veteran's bilateral hearing loss disability and explained the basis for the proposal. Except as discussed below, the Board finds that the content of the notice fully complied with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) regarding VA's duty to notify. The Board acknowledges that the RO did not specifically identify the appeal as encompassing the issue of the reduction in the statement of the case. Instead, the issue on appeal was characterized solely as a claim for an increased rating. However, the Board finds that any error in not identifying the reduction issue was harmless because the statement of the case issued in July 2010 addressed essentially the same criteria and evidence relevant to the reduction action. Moreover, the Board finds that the RO followed proper procedure in proposing the reduction, allowing the Veteran the requisite period to respond, and ultimately carrying out the reduction. In essence, the Veteran has been provided with every opportunity to submit evidence and argument in support of his claim and to respond to VA notices. Further, the Board finds that the purpose behind the notice requirement has been satisfied because the Veteran has been afforded a meaningful opportunity to participate effectively in the processing of his claim. Regarding VA's duty to assist, available relevant records have been obtained and associated with the claims file. The RO provided the Veteran appropriate VA examinations in October 2006, June 2008, and July 2010. There is no evidence indicating that there has been a material change in the severity of the Veteran's hearing loss disability since he was last examined. The VA examination reports are thorough and supported by VA outpatient treatment records. The Board concludes the examinations in this case are adequate upon which to base a decision in that they were performed by neutral, skilled providers who accurately recited the Veteran's history; the resulting reports provide the data required to appropriately rate the Veteran's hearing loss disability. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). The Board observes that in Martinak v. Nicholson, 21 Vet. App. 447 (2007), the Court noted that VA had revised its hearing examination worksheets to include the effect of the Veteran's hearing loss disability on occupational functioning and daily activities. See Revised Disability Examination Worksheets, Fast Letter 07-10 (Dep't of Veterans Affairs Veterans Apr. 24, 2007); see also 38 C.F.R. § 4.10 (2010). The Court also noted, however, that even if an audiologist's description of the functional effects of the Veteran's hearing disability was somehow deficient, the Veteran bears the burden of demonstrating any prejudice caused by a deficiency in the examination. Neither the Veteran nor his representative has asserted that there is any deficiency in the examinations conducted. Further, the Board notes that the VA examination reports discussed the Veteran's problems hearing others in situations with background noise and difficulty a speaker unless he was facing them. Thus, as contemplated by Martinak and directed by 38 C.F.R. § 4.10, the examiners discussed the functional effects of the Veteran's hearing problems in the examination report. Moreover, neither the Veteran nor his representative has identified any additional evidence or information which could be obtained to substantiate the claims. The Board is also unaware of any such outstanding evidence or information. Therefore, the Board is also satisfied that the RO has complied with the duty to assist requirements of the VCAA and the implementing regulations. For the foregoing reasons, it is not prejudicial to the appellant for the Board to proceed to a final decision in this appeal. Factual Background Service connection was granted for bilateral hearing loss disability in a December 2001 rating decision. A noncompensable evaluation was assigned. In August 2005 the RO awarded a 30 percent evaluation. The Veteran submitted a claim for increase in June 2006. In response, the Veteran was afforded a VA examination in October 2006. He related that he had difficulty understanding conversation in background noise. Objective testing revealed the following puretone thresholds: HERTZ 1000 2000 3000 4000 Average Right 50 95 90 95 83 Left 55 75 75 85 73 Speech recognition scores were 68 percent for the right ear and 64 percent for the left. Based on the October 2006 examination the RO increased the evaluation for bilateral hearing loss disability to 40 percent, effective June 30, 2006, the date of receipt of the Veteran's claim for increase. The Veteran submitted a claim of entitlement to a total rating based on unemployability due to service-connected disability (TDIU) in May 2008. He stated that his hearing and back disabilities prevented him from securing or following any substantially gainful occupation. In response to the Veteran's claim, the RO scheduled examinations, to include an audiological evaluation which was carried out in June 2008. At that time, the Veteran's history was comprehensively reviewed. The Veteran reported that his situation of greatest difficulty was understanding speech when he was not facing the speaker. Objective testing revealed the following puretone thresholds: HERTZ 1000 2000 3000 4000 Average Right 45 85 85 85 75 Left 45 70 70 85 68 Speech recognition scores were 68 percent for the right ear and 72 percent for the left. Based on the June 2008 findings, the RO proposed to reduce the Veteran's evaluation for bilateral hearing loss. In November 2008 it issued a rating decision outlining the proposed reduction and explaining the basis for reducing the evaluation of the Veteran's bilateral hearing loss disability. The Veteran did not respond to the June 2008 rating decision. Rather, in January 2009 he submitted a notice of disagreement with that rating decision's denial of a TDIU. An additional VA examination was conducted in June 2009. The Veteran reported that his hearing was worse and that he felt that his speech understanding was not what it should be. Audiometric testing revealed the following puretone thresholds: HERTZ 1000 2000 3000 4000 Average Right 55 90 90 90 81 Left 50 70 60 75 64 Speech recognition scores were 72 percent for the right ear and 84 percent for the left. In a July 2009 rating decision, the RO reduced the evaluation of the Veteran's bilateral hearing loss disability to 30 percent, effective October 1, 2009. The Veteran disagreed with that decision and this appeal ensued. The Veteran submitted to an additional VA examination in July 2010. Testing revealed the following puretone thresholds: HERTZ 1000 2000 3000 4000 Average Right 60 90 80 85 79 Left 55 75 65 80 72 Speech recognition scores were 60 percent for the right ear and 72 percent for the left. Analysis Disability ratings are based upon schedular requirements that reflect the average impairment of earning capacity occasioned by the state of a disorder. 38 U.S.C.A. § 1155. Separate rating codes identify the various disabilities. 38 C.F.R. Part 4. In determining the level of impairment, the disability must be considered in the context of the entire recorded history, including service medical records. 38 C.F.R. § 4.2. An evaluation of the level of disability present must also include consideration of the functional impairment of the Veteran's ability to engage in ordinary activities, including employment. 38 C.F.R. § 4.10. The Board observes that there is no question that a disability rating may be reduced; however, the circumstances under which rating reductions can occur are specifically limited and carefully circumscribed by regulations promulgated by the Secretary. Dofflemyer v. Derwinski, 2 Vet. App. 277, 280 (1992). The Court, in Brown v. Brown, 5 Vet. App. 413 (1993), interpreting the provisions of 38 C.F.R. § 3.344, also interpreted the provisions of 38 C.F.R. § 4.13 to require that in any rating reduction case, it must be ascertained, based upon a review of the entire recorded history of the condition, whether the evidence reflects an actual change in the disability and whether the examination reports reflecting such change are based upon thorough examinations. Moreover, 38 C.F.R. §§ 4.2 and 4.10 provide that in any rating-reduction case, not only must it be determined that an improvement in a disability has actually occurred, but also that that improvement in a disability actually reflects an improvement in the Veteran's ability to function under the ordinary conditions of life and work. See Brown. The Board also notes that 38 C.F.R. § 3.344(a) provides for the stabilization of disability evaluations and requires that prior to a rating reduction there must be a comparison of the evidence, and particularly any rating examinations, to ensure completeness and that ratings subject to temporary or episodic improvement will not be reduced on a single examination unless clearly warranted by all the evidence. Any material improvement must be reasonably certain to continue under the ordinary conditions of life. But 38 C.F.R. § 3.344(c) stipulates that the provisions of 38 C.F.R. § 3.44(a) apply to ratings that have continued for long periods at the same level (meaning 5 years or more) and do not apply to disabilities that have not become stabilized and are likely to improve. Reexaminations disclosing improvement, physical or mental, in these disabilities will warrant reduction in rating. Evaluations of hearing loss range from noncompensable to 100 percent, based upon 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 1000, 2000, 3000, and 4000 cycles per second. 38 C.F.R. § 4.85(a) and (d) (2010). To evaluate the degree of disability for service-connected bilateral hearing loss, the rating schedule establishes eleven (11) auditory acuity levels, designated from level I, for essentially normal acuity, through level XI, for profound deafness. 38 C.F.R. § 4.85, Diagnostic Code 6100 (2010). The assignment of disability ratings for hearing impairment is derived by a mechanical application of the rating schedule to the numeric designations assigned after audiometric evaluations are rendered. See Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). When the pure tone thresholds at the four specified frequencies (1000, 2000, 3000, and 4000 hertz) are 55 decibels or more, or when the pure tone thresholds are 30 decibels or less at 1000 Hz and 70 decibels or more at 2000 Hz, 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 highest Roman numeral. 38 C.F.R. § 4.86. The Board notes that the Veteran's hearing loss disability does not comport with either of these exceptional patterns of hearing impairment. Examinations are conducted using the controlled speech discrimination tests, together with the results of the puretone audiometry test. The horizontal lines in table VI, referenced in 38 C.F.R. § 4.85, represent nine categories of percent of discrimination based upon the controlled speech discrimination test. The vertical columns in table VI represent nine categories of decibel loss based upon the puretone audiometry test. The numeric designation of impaired efficiency (I through XI) will be determined for each ear by intersecting the horizontal row appropriate for the percentage of discrimination and the vertical column appropriate to puretone decibel loss; thus, for example, with a percent of discrimination of 70 and average puretone decibel loss of 64, the numeric designation is V for one ear. The same procedure will be followed for the other ear. The numeric designations are then applied to table VII, also referenced in 38 C.F.R. § 4.85, to determine the Veteran's disability rating. Reduction In sum, based on the evidence of record at the time of the rating reduction decision, the Board finds that a preponderance of the evidence establishes that the Veteran's bilateral hearing loss was appropriately rated as 30 percent disabling, and that the reduction from the previously assigned 40 percent rating by the RO was warranted and supported by the evidence of record. See Brown, 5 Vet. App. at 421. The Veteran was afforded a full and complete evaluation of his hearing loss disability in the June 2008 VA examination. In the November 2008 rating decision, the RO considered the June 2008 VA examination, which indicated that the Veteran's hearing loss disability no longer met the criteria for a 40 percent evaluation. The July 2009 rating decision also considered the June 2009 examination, which also demonstrated that the criteria for a 30 percent evaluation, but no higher, were met. The Board's review of the record demonstrates that the results of the June 2008 examination, when applied to the rating criteria, result in a numeric designation of Level VI for the right ear and Level VI for the left. When applied to Table VII, a 30 percent evaluation results. The results of the June 2009 VA examination result in a numeric designation of Level VI for the right ear and Level III for the left; application of § 4.86 results in a numeric designation of Level VII for the right ear, and is inapplicable to the left ear audiometric results. As such, at most, a 20 percent evaluation is warranted based on the results of the June 2009 testing. In summary, the objective record demonstrates that at worst, the Veteran's bilateral hearing loss disability warranted a 30 percent evaluation during the period in question. The Board notes that the Veteran has argued that the RO erred in failing to apply § 4.86 to the audiometric testing results. However, we note that such application fails render an evaluation in excess of 30 percent. Moreover, the Veteran has also argued that the RO failed to apply § 3.344. In this regard, the Board notes that as the 40 percent evaluation was not in effect for a period of five years, the provisions addressing for the stabilization of disability evaluations are not applicable. In summary, the Board concludes that the reduction of the 40 percent rating for the service-connected bilateral hearing loss disability to 30 percent, effective October 1, 2009, was proper. As the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable. See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). Rating Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. 38 C.F.R. §§ 4.1, 4.2 (2008); see also Francisco v. Brown, 7 Vet. App. 55 (1994). In Hart v. Mansfield, 21 Vet. App. 505 (2007), however, the Court held that "staged ratings" are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. In this case the Board has concluded that the disability has not significantly changed and that a uniform evaluation is warranted for the period considered. With respect to an evaluation in excess of the currently assigned 30 percent, the Board finds that the currently assigned 30 percent evaluation is appropriate. As noted above, the results of the June 2008 examination result in a numeric designation of Level VI for the right ear and Level VI for the left; resulting in a 30 percent evaluation. The results of the June 2009 VA examination result in a numeric designation of Level VI for the right ear and Level III for the left; application of the values for the right ear to Table VIa results also results in a designation of Level VII, and is inapplicable to the left ear audiometric results. As such, at most, a 20 percent evaluation is warranted based on the results of the June 2009 testing. Finally, the results of the July 2010 examination result in a numeric designation of Level VII for the right ear and of Level VI for the left, warranting a 30 percent evaluation; and application of those values to Table VIa results in numeric designations of Level VII for the right ear and Level V for the left, also warranting a 30 percent evaluation. Thus, the record demonstrates that the Veteran's hearing loss disability has not been more than 30 percent disabling during the appellate period. Extraschedular Consideration Ordinarily, the VA Schedule will apply unless there are exceptional or unusual factors which would render application of the schedule impractical. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993). According to the regulation, an extraschedular disability rating is warranted upon a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that would render impractical the application of the regular schedular standards. See 38 C.F.R. § 3.321(b)(1) (2009); see also Fanning v. Brown, 4 Vet. App. 225, 229 (1993). Under Thun v. Peake, 22 Vet. App. 111 (2008), there is a three- step inquiry for determining whether a Veterans entitled to an extraschedular rating. First, the Board must first determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Second, if the schedular evaluation does not contemplate the level of disability and symptomatology and is found to be inadequate, the Board must then determine whether the claimant's disability picture exhibits other related factors such as those provided by the regulation as "governing norms." Third, if the rating schedule is inadequate to evaluate a Veteran's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extraschedular rating. With respect to the initial inquiry posed by Thun, the Board has been unable to identify an exceptional or unusual disability picture with respect to the Veteran's service-connected thumb, knee, or cold injury disabilities. The medical evidence fails to demonstrate symptomatology of such an extent that application of the ratings schedule would not be appropriate. In fact, as discussed in detail above, the symptomatology of the Veteran's disabilities are specifically contemplated under the appropriate ratings criteria. Accordingly, the Board finds that the Veteran's disability picture has been contemplated by the ratings schedule. Moreover, the Board notes that the rating criteria for hearing loss disability were last revised, effective June 10, 1999. See 64 Fed. Reg. 25,200 (May 11, 1999). In forming these revisions, VA sought the assistance of the Veteran's Health Administration (VHA) in developing criteria that contemplated situations in which a Veteran's hearing loss was of such a type that speech discrimination tests may not reflect the severity of communicative functioning these Veterans experienced or that was otherwise an extreme handicap in the presence of any environmental noise, even with the use of hearing aids. VHA had found through clinical studies of Veterans with hearing loss that when certain patterns of impairment are present, a speech discrimination test conducted in a quiet room with amplification of the sounds does not always reflect the extent of impairment experienced in the ordinary environment. Id. The decibel threshold requirements for application of Table VIA were based on the findings and recommendations of VHA. The intended effect of the revision was to fairly and accurately assess the hearing disabilities of Veterans as reflected in a real life industrial setting. 59 Fed. Reg. 17,295 (April 12, 1994). Accordingly, the Board finds that functional impairment due to hearing loss that is compounded by background or environmental noise is a disability picture that is considered in the current schedular rating criteria. In short, the Board finds that the Veteran's complaints of hearing difficulty, have been considered under the numerical criteria set forth in the rating schedule. Thus, the Board further concludes that the schedular rating criteria adequately contemplate the Veteran's symptomatology, and that the criteria for submission for assignment of an extraschedular rating pursuant to 38 C.F.R. § 3.321(b)(1) are not met. See Bagwell v. Brown, 9 Vet.App. 337 (1996); Shipwash v. Brown, 8 Vet.App. 218, 227 (1995). ORDER Entitlement to restoration of a 40 percent evaluation for bilateral hearing loss disability is denied. Entitlement to an evaluation in excess of 30 percent for bilateral hearing loss disability is denied. ____________________________________________ MICHAEL LANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs