Citation Nr: 1301358	
Decision Date: 01/14/13    Archive Date: 01/23/13

DOCKET NO.  10-14 472	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Oakland, California


THE ISSUE

Whether the reduction of the rating evaluation for service-connected bilateral hearing loss from 20 percent to 10 percent, effective September 1, 2009, was proper.


REPRESENTATION

Veteran represented by:	California Department of Veterans Affairs


ATTORNEY FOR THE BOARD

K. M. Schaefer, Counsel





INTRODUCTION

The Veteran served on active duty from November January 1968 to December 1969. 

This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from an August 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Oakland, California. 


FINDINGS OF FACT

1. A rating decision issued in July 2007 increased the Veteran's rating evaluation for service-connected bilateral hearing loss from noncompensable to 20 percent.

2. An August 2009 rating decision found clear and unmistakable error in the July 2007 rating and reduced the rating evaluation for the Veteran's service-connected bilateral hearing loss from 20 percent to 10 percent, effective September 1, 2009. 

3. The 20 percent disability evaluation was in effect for less than five years at the time the reduction took effect. 

4. At the time of the reduction, there was no competent and probative evidence establishing that the Veteran had hearing acuity warranting less than a 20 percent rating evaluation, or that the Veteran's hearing had improved.

5. The RO's decision to reduce the Veteran's evaluation from 20 percent to 10 percent was not supported by the evidence contained in the record at the time of the reduction. 





CONCLUSION OF LAW

The reduction in the disability rating of the Veteran's service-connected bilateral hearing loss from 20 percent to 10 percent, effective September 1, 2009, was not proper, and the 20 percent rating is restored, effective September 1, 2009.  
38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.105, 3.344, 4.1, 4.3, 4.7, 4.21 (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

As the Board's decision herein to restore the 20 percent rating for service-connected bilateral hearing loss, effective September 1, 2009, is a full grant of the benefits sought on appeal, no further action is required to comply with the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000), enacted November 9, 2000 (codified at 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2002)) and the implementing regulations.

A rating reduction must be based upon review of the entire history of the Veteran's disability.  See Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991).  VA must ascertain, based upon 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.  Thus, 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 actually reflects an improvement in the Veteran's ability to function under the ordinary conditions of life and work.  Id.

Prior to reducing a veteran's disability rating, VA is required to comply with pertinent VA regulations applicable to all rating-reduction cases, regardless of the rating level or the length of time that the rating has been in effect.  Generally, when reduction in the evaluation of a service-connected disability is contemplated and the lower evaluation would result in a reduction or discontinuance of compensation payments, a rating proposing the reduction or discontinuance will be prepared setting forth all material facts and reasons.  The beneficiary must be notified at his or her latest address of record of the contemplated action and furnished detailed reasons thereof.  The beneficiary must be given 60 days for the presentation of additional evidence to show that compensation payments should be continued at the present level.  38 C.F.R. § 3.105(e) (2012).  In the advance written notice, the beneficiary will be informed of his right for a pre-determination hearing, and if a timely request for such a hearing is received (i.e., within 30 days), benefit payments shall be continued at the previously established level pending a final determination.  38 C.F.R. § 3.105(i)(1) (2012).  Where there is no reduction in the amount of compensation payable to a beneficiary, 38 C.F.R. § 3.105(e) does not apply.  See VAOPGCPREC 71-91.  

In this case, the RO did not afford the Veteran notice of a proposed reduction, nor the opportunity to supply evidence or request a hearing.  However, the Veteran's combined rating evaluation for all service-connected disabilities was 40 percent both before and after the reduction took effect.  Accordingly, the RO was not obligated to notify the Veteran of the proposed reduction.  

In certain rating reduction cases, VA benefits recipients are to be afforded greater protections, set forth in 38 C.F.R. § 3.344 (2012).  Rating agencies will handle cases affected by change of medical findings or diagnosis, so as to produce the greatest degree of stability of disability evaluations consistent with the laws and VA regulations governing disability compensation and pension.  However, these considerations apply to ratings that have continued for long periods at the same level (five years or more), and not to disabilities that have not become stabilized and are likely to improve.  In this case, the 20 percent disability rating was effective April 9, 2007, less than five years before the reduction took effect on September 1, 2009.  Thus, various provisions of 38 C.F.R. § 3.344, pertaining to stabilization of disability ratings, do not apply; reexamination disclosing improvement will warrant a rating reduction.  38 C.F.R. § 3.344(c).  Nevertheless, the Court noted in Brown v. 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.  5 Vet. App. 413, 420-21 (1993). 

Specifically, VA regulation 38 C.F.R. § 4.1 requires that each disability be viewed in relation to its history.  Furthermore, VA regulation 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.  Id.; 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 at 421. 

The Veteran's service-connected bilateral hearing loss was evaluated noncompensably prior to an April 2007 claim for increase, pursuant to 38 C.F.R. §§ 4.85, 4.86, Diagnostic Code 6100 (2012).  In a rating decision issued in July 2007, a rating of 20 percent was granted, effective April 9, 2007.  Thereafter, in an August 2009 rating decision, the RO determined that a clear and unmistakable error had been made in assigning the 20 percent rating and reduced the rating evaluation for the Veteran's service-connected bilateral hearing loss from 20 percent to 10 percent, effective September 1, 2009.  The Veteran contends that the severity of his hearing loss warrants a higher rating than that assigned and that his need for hearing aids demonstrates this contention.  

Ratings of hearing loss range from noncompensable to 100 percent based on organic impairment of hearing acuity as measured by the results of speech discrimination tests (Maryland CNC) combined with the average hearing threshold levels as measured by pure tone audiometry tests in the frequencies 1000, 2000, 3000, and 4000 cycles per second.  To rate the degree of disability for service-connected hearing loss, the Rating Schedule has established eleven auditory acuity levels, designated from Level I, for essentially normal acuity, through Level XI, for profound deafness.  38 C.F.R. § 4.85(h), Tables VI, VIA (2012).  In order to establish entitlement to a compensable rating for hearing loss, certain minimum levels of the combination of the percentage of speech discrimination loss and average pure tone decibel loss must be met.  
The results of the pure tone audiometry test and speech discrimination test are charted on Table VI, Table VIA, in exceptional cases as described in 38 C.F.R. 
§ 4.86, and Table VII, as set out in the Rating Schedule.  38 C.F.R. § 4.85.  Table VIA will be used when the examiner certifies that use of the speech discrimination test is not appropriate because of language difficulties, inconsistent speech discrimination scores, etc., or when an exceptional pattern of hearing loss is shown, specifically when the pure tone threshold at 1000, 2000, 3000, and 4000 Hertz is 55 decibels or more, or when the pure tone threshold is 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hertz.  38 C.F.R. § 4.86.  When the pure tone threshold at 1000, 2000, 3000, and 4000 Hertz is 55 decibels or more in a particular ear, determination of the level of hearing acuity in that ear will be made using either Table VI or Table VIA, whichever results in the higher numeral.  Id.  

The audiological evaluation on which the reduction was based was performed in June 2009.  A September 2009 VA examination was performed after the reduction took effect and is not relevant to the claim.  

At the June 2009 VA examination, pure tone thresholds, measured in decibels were as follows: 




HERTZ




1000
2000
3000
4000
RIGHT

60
70
95
100
LEFT

40
65
70
80

The average decibel loss was 81.25 decibels in the right ear and 63.75 decibels in the left ear.  Speech audiometry was not reported.  The examiner stated that only pure tone thresholds should be used to evaluate the hearing loss as the Veteran's responses were of exaggerated difficulty with both recorded and live speech.  The examiner stated the Veteran demonstrated poor intra and inter-test reliability.
  
Given the examiner's statement that only pure tone thresholds should be used, the Veteran's hearing acuity for both ears is determined using Table VIA, even though the Veteran does not have an exceptional pattern of hearing loss in his left ear.  38 C.F.R. § 4.86.  Using Table VIA, the Veteran had Level VII hearing acuity in the right ear and Level V hearing acuity in the left ear.  Applying Table VII to these results, the Veteran's hearing loss does not meet the criteria for a reduction in disability rating from 20 percent to 10 percent.  

The Veteran's hearing loss has not improved since the May 2007 VA examination.  That examination showed the following pure tone thresholds:




HERTZ




1000
2000
3000
4000
RIGHT

35
70
75
95
LEFT

45
70
95
100

The average decibel loss was 68.75 decibels in the right ear and 77.5 decibels in the left ear.  Speech recognition scores were reported at 48 percent in the right ear and 28 percent in the left ear.  Applying these findings to Table VI and VII in the rating schedule yields a rating well in excess of 20 percent.  Even if the speech scores are not used based on later findings of unreliability, the Roman Numerals assigned for the right and left year are VII and V respectively according to table VIa, which are the same findings as the June 2009 VA examination indicated.  Therefore, with no indication of improvement, and a June 2009 VA exam that supports at least a 20 percent rating for bilateral hearing loss, there is no basis on which to reduce the disability rating for the Veteran's service-connected bilateral hearing loss.

In light of the above, the Board finds that the regulatory requirements for reduction of a disability evaluation have not been met, and a preponderance of the evidence is not in favor of the reduction.  Therefore, the Board concludes that the reduction from 20 percent to 10 percent for the Veteran's service-connected bilateral hearing loss was not proper and that the 20 percent disability evaluation is to be restored, effective September 1, 2009. 




ORDER

The reduction of the disability rating for the Veteran's service-connected bilateral hearing loss from 20 percent to 10 percent, effective September 1, 2009 was not proper, and the claim to restore the 20 percent rating, effective September 1, 2009 is granted.



____________________________________________
ROBERT C. SCHARNBERGER
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs