Citation Nr: 1302967	
Decision Date: 01/28/13    Archive Date: 02/05/13

DOCKET NO.  10-43 032	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Muskogee, Oklahoma


THE ISSUES

1.  The propriety of a rating reduction for service-connected hearing loss from 30 percent to 10 percent, effective July 1, 2012.

2.  Entitlement to an increased rating for hearing loss, currently rated as 30 percent disabling prior to July 1, 2012, and 10 percent thereafter.

3.  Entitlement to an initial disability evaluation in excess of 10 percent for tinnitus.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

A. Michel, Associate Counsel

INTRODUCTION

The Veteran had active service from April 1953 to January 1957.

This case comes before the Board of Veterans' Appeals (Board) on appeal from a November 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma that granted entitlement to service connection for hearing loss with an evaluation of 30 percent, effective from the date of service connection on September 28, 2009; and granted entitlement to service connection for tinnitus with an evaluation of 10 percent.

The Veteran filed a notice of disagreement with the November 2009 decision; however, instead of increasing the disability rating for hearing loss, the RO reduced the disability rating in an April 2012 rating decision from 30 percent to 10 percent, effective July 1, 2012.

The Board has not only reviewed the Veteran's physical claims file, but also the Veteran's file on Virtual VA, to ensure a total review of the available evidence.

Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012).  38 U.S.C.A. § 7107(a) (2) (West 2002).

In January 2013, the Board received written statements from the Veteran's family.  These letters have been taken into consideration in the evaluation of the Veteran's case.  These letters appear to raise the claim of service connection for an acquired psychiatric disability, but this is unclear.  The RO should take appropriate action to clarify whether or not the Veteran is raising such a claim.  A formal claim should be raised by the Veteran or his representative in order to expedite this issue (if needed). 





FINDINGS OF FACT

1.  In October 2011, the RO notified the Veteran of a proposal to reduce the disability rating for hearing loss from 30 percent to 10 percent disabling. 

2.  An April 2012 rating decision reduced the rating for the Veteran's hearing loss to 10 percent, effective July 1, 2012.

3.  At the time of the reduction, the 30 percent rating for the Veteran's hearing loss had been in effect since September 28, 2009, a period less than five years.

4.  The record demonstrates that at the time the RO reduced the 30 percent evaluation assigned to the Veteran's hearing loss there had not been sustained material improvement in the symptoms attributable to that disability; therefore, the reduction was not proper.

5.  Throughout the period of this claim, the Veteran's hearing loss has been no worse than Level V in the right ear and no worse than a Level VII in the left ear. 

6.  VA's rating schedule does not provide for an evaluation higher than 10 percent for bilateral tinnitus; the Veteran already has this rating, and his tinnitus does not present an exceptional or unusual disability picture as to render impractical the application of the regular schedular standards. 


CONCLUSIONS OF LAW

1.  The rating for hearing loss was improperly reduced from 30 percent to 10 percent from July 1, 2012.  38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2012); 38 C.F.R. § 3.159, 4.1-4.14, 4.85, 4.86 (2012).

2.  The criteria for a rating in excess of 30 percent for hearing loss are not met.  38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 3.159, 4.1-4.14, 4.85, 4.86 (2012).

3.  There is no legal basis for the assignment of an initial evaluation higher than 10 percent for bilateral tinnitus.  38 U.S.C.A. §1155 (West 2002); 38 C.F.R. §§ 3.321(b) (1), 4.87, Diagnostic Code 6260 (2012); Smith v. Nicholson, 451 F.3d 1344 (Fed. Cir. 2006).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

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.  

Procedural steps that must be taken when a rating reduction is considered warranted are set forth at 38 C.F.R. § 3.105(e).  Initially, a rating proposing the reduction or discontinuance will be prepared setting forth all material facts and reasons.  The beneficiary will then be notified at his or her latest address of record of the contemplated action and furnished detailed reasons therefore, and will be given 60 days for the presentation of additional evidence to show that compensation payments should be continued at their present level.  If additional evidence is not received within that period, final rating action will be taken and the award will be reduced or discontinued effective the last day of the month in which a 60-day period from the date of notice to the beneficiary of the final rating action expires.  38 C.F.R.  § 3.105(e). 

Where a disability rating has been continued for at least 5-years at the same level, under 38 C.F.R. § 3.344, if there have occurred changes in essential medical findings or diagnosis, that case is to be reviewed and adjudicated so as to produce the greatest degree of stability of disability evaluation.  In determining the propriety of a previous evaluation, the entire record as to medical history should be considered to ascertain whether the most recent examination is indeed a full and complete depiction of the level of disability.  38 C.F.R. § 3.344(a).  Likewise, in such cases provided doubt remains, after according due consideration to all the evidence developed by the several items discussed in the preceding paragraph (section 3.344(a)), the rating agency will continue the rating in effect under specified procedures.  38 C.F.R.  § 3.344(b). 

In the Veteran's case, however, the 30 percent rating in question was not in effect for 5 years or more, and the preceding paragraphs (a) and (b) do not apply, based upon a disability which has not become stabilized and is likely to improve.  Accordingly, reexaminations disclosing improvement will warrant reduction in rating.  38 C.F.R.  § 3.344(c). 

The determination in a reduction in rating case must include the proper application as to the standard of proof.  To warrant reduction in rating, it must be shown that the preponderance of the evidence supports the reduction itself, and with application of the benefit-of-the-doubt doctrine under 38 U.S.C.A. § 5107(b) as required.  See Brown v. Brown, 5 Vet. App. 413, 420 (1993).

Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity.  Separate diagnostic codes identify the various disabilities.  38 U.S.C.A. § 1155; 38 C.F.R., Part 4.  Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized.  38 C.F.R. § 4.1.  Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the appellant working or seeking work.  38 C.F.R. § 4.2.  Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating.  Otherwise, the lower rating is to be assigned.  38 C.F.R. § 4.7.

In Fenderson v. West, 12 Vet. App. 119, 126 (1999), the U.S. Court of Appeals for Veterans Claims (Court) noted a distinction between an appeal involving the Veteran's disagreement with the initial rating assigned at the time a disability is service connected.  Where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern.  See Francisco v. Brown, 7 Vet. App. 55, 58 (1994).  However, where, as here, the question for consideration is propriety of the initial evaluations assigned, evaluation of the medical evidence since the grant of service connection and consideration of the appropriateness of "staged rating" is required.  See Fenderson, 12 Vet. App. at 126.

Pursuant to VA's rating schedule, the assignment of a disability rating for hearing impairment is derived by a purely mechanical application of the rating schedule to the numeric designations derived from the results of audiometric evaluations.  Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). 

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 audiometric tests at the frequencies of 1000, 2000, 3000, and 4000 cycles per second (Hertz ).  To evaluate the degree of disability from bilateral defective hearing, the rating schedule establishes 11 auditory acuity levels designated from level I, for essentially normal acuity, through level XI, for profound deafness. 

When the pure tone 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).  Similarly, if the pure tone threshold is 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, and that numeral will be elevated to the next higher Roman numeral. 

Table VIA, "Numeric Designation of Hearing Impairment Based Only on Pure Tone Threshold Average," is used to determine a Roman numeral designation (I through XI) for hearing impairment based only on the pure tone threshold average.  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 indicated under the provisions of Section 4.86, described in the preceding paragraph.  38 C.F.R. § 4.85(c). 

As noted above, service connection for hearing loss was granted in a November 2009 rating decision with an evaluation of 30 percent from the date of service connection, September 28, 2009.  The Veteran appealed this initial rating.

The 30 percent rating was derived from the findings of a September 2009 VA-contracted audiological evaluation in which the Veteran complained of difficulty hearing, understanding conversations.  The Veteran's puretone thresholds in decibels (db) for the four frequencies used in VA evaluations were as follows:  



HERTZ

500
1000
2000
3000
4000
AVG.
RIGHT
N/A
40
55
60
70
56
LEFT
N/A
35
50
65
65
54

Speech recognition scores were 74 percent for the right ear and 52 percent for the left ear.  

The audiologist diagnosed bilateral, sensorineural hearing loss with subjective factors of difficulty hearing in both ears.  Charting the Veteran's audiological scores against Table VI shows a Level V hearing acuity in the right ear and a Level VII hearing acuity in the left ear.  Charting a Level V hearing loss and a Level VII hearing loss against Table VII results in a 30 percent rating.  The readings reported in this evaluation did not meet the requirements for evaluation as an exceptional pattern of impairment.

The Veteran submitted a statement with his formal appeal, VA Form 9, in October 2010 in which he stated that his loss of hearing had not been relieved by hearing aids because he could not handle the hearing aids; thus, his hearing and tinnitus made it impossible to understand anything other than absolute silence.

The Veteran was afforded a VA audiological evaluation in September 2011 in which it was noted by the examiner that the claims file was not reviewed.  The Veteran's puretone thresholds in db for the four frequencies used in VA evaluations were as follows:  


HERTZ

500
1000
2000
3000
4000
AVG.
RIGHT
N/A
40
55
65
85
61
LEFT
N/A
35
60
70
80
61

Speech recognition scores were 84 percent for the right ear and 80 percent for the left ear.  

Charting the Veteran's audiological scores against Table VI shows a Level III hearing acuity in the right ear and a Level IV hearing acuity in the left ear.  Charting a Level III hearing loss and a Level IV hearing loss against Table VII results in a 10 percent rating.  The readings reported in this evaluation did not meet the requirements for evaluation as an exceptional pattern of impairment.  The audiologist noted that there was no impact on ordinary conditions of daily life due to the hearing loss.  

Following the September 2001 VA audiological evaluation, in October 2011, the RO proposed to reduce the Veteran's rating.  As a result, the requirements under 38 C.F.R. § 3.344(a) and (b) do not apply.  

Nevertheless, the Court has held that several general regulations are applicable to all rating reduction cases, without regard for how long a particular rating has been in effect. 

The Court has stated that certain regulations "impose a clear requirement that VA rating reductions, as with all VA rating decisions, be based upon a review of the entire history of the veteran's disability."  Brown v. Brown, 5 Vet. App. 413, 420   (referring to 38 C.F.R. §§ 4.1, 4.2, 4.13).  A rating reduction requires an inquiry as to "whether the evidence reflects an actual change in the disability and whether the examination reports reflecting such change are based upon thorough examinations."  See Brown, 5 Vet. App. at 421. 

Significantly, in a rating reduction case, VA has the burden of establishing that the disability has improved.  This is in stark contrast to a case involving a claim for an increased (i.e., higher) rating, in which it is the Veteran's responsibility to show the disability, has worsened.  A rating reduction case focuses on the propriety of the reduction and is not the same as an increased rating issue.  See Peyton v. Derwinski, 1 Vet. App. 282, 286 (1991).  In considering the propriety of a reduction, the Board must focus on the evidence available to the RO at the time the reduction was effectuated, although post-reduction medical evidence may be considered in the context of evaluating whether the condition had demonstrated actual improvement. Cf. Dofflemyer v. Derwinski, 2 Vet. App. 277, 281-282 (1992). 

Post-reduction medical evidence includes a private audiological evaluation in October 2011 in which the Veteran reported hearing loss in both ears.  The private audiologist diagnosed moderate to severe, bilateral, sensorineural hearing loss.  Pure tone average in the right ear was 63.75 db with recorded Maryland CNC modified performance intensity function speech discrimination score of 32 percent; left ear pure tone average was 56.25 db with recorded Maryland CNC modified performance intensity function speech discrimination score of 40 percent.  The audiologist noted that as a result of hearing loss, the Veteran had difficulty hearing and understanding in most listening situations, background noise and more than one person speaking at a time caused him significant difficulty in understanding speech and conversations.

The Board notes that the audiological findings in this October 2011 report did not include the puretone thresholds in numerical format but included only a graphical representation of such data.  However, the Board may interpret graphical representations of audiometric data and convert it to numerical data in its role as a fact finder as long as the graphical representations are clear.  See Kelly v. Brown, 7 Vet. App. 471 (1995); Hall v. Nicholson, 21 Vet. App. 80 (2006) (unpublished) (stating that the Court held in Kelly that the Court could not interpret graphical data from a hearing evaluation and convert it to numerical data because this involved fact finding, but there was no indication in the Court's decision that the Board is precluded from doing so as a fact finder).  However, the Board finds that the graphical representations are not clear as circles, dashes, X's, greater than and less than signs are all used to note that audiometric data, making it difficult to determine the exact numerical db indicated.

Using just the noted numerical averages and speech discrimination scores listed in the October 2011 examination, charting the Veteran's private audiological scores  against Table VI shows a Level XI hearing acuity in the right ear and a Level VIII hearing acuity in the left ear.  Charting a Level XI hearing loss and a Level VIII hearing loss against Table VII results in a 70 percent rating.  The readings reported in this evaluation did not meet the requirements for evaluation as an exceptional pattern of impairment. 

Due to the discrepancies in the September 2011 VA audiological evaluation and the October 2011 private audiological evaluation, the RO sought opinion on the matter; however, the VA audiologist who conducted the September 2011 evaluation provided an addendum opinion stating that the word recognition scores in the private evaluation were considered significantly lower than would be expected with the Veteran's diagnosed mild to severe hearing loss and that her findings were a better representation of the Veteran's hearing loss.

Based on the above evidence, the RO reduced the rating for hearing loss from 30 percent to 10 percent effective from July 1, 2012 in an April 2012 rating decision. 

Subsequently, the Veteran's representative sent correspondence in May 2012 stating that the Veteran's hearing loss had gotten worse since his last VA examination in September 2011.

Due to the assertion that the Veteran's hearing loss had worsened since his last examination and the realization that the addendum regarding prior examination discrepancies was written by one of the examiners in question, the RO afforded the Veteran a VA-contracted audiological evaluation in May 2012.  The Veteran's puretone thresholds in db for the four frequencies used in VA evaluations were as follows:  


HERTZ

500
1000
2000
3000
4000
AVG.
RIGHT
N/A
50
65
65
75
63.75
LEFT
N/A
50
65
70
75
65

Speech recognition scores were 12 percent for the right ear and 12 percent for the left ear.  

Charting the Veteran's audiological scores against Table VI shows a Level XI hearing acuity in both ears.  Charting Level XI hearing loss levels against Table VII results in a 100 percent rating.  However, the examiner opined that the use of the speech discrimination score is not appropriate for this Veteran because of language difficulties, cognitive problems, inconsistent speech discrimination scores, etc.  As noted above, Table VIA, "Numeric Designation of Hearing Impairment Based Only on Pure Tone Threshold Average," is used to determine a Roman numeral designation (I through XI) for hearing impairment based only on the pure tone threshold average.  Therefore, charting the audiological scores against Table VIA results in a 20 percent rating.

The May 2012 VA audiologist noted that the Veteran reported overall functional impairments from the hearing loss to include difficulty hearing and understanding in many listening situations.  The VA examiner stated that the pure tone thresholds obtained in the September 2011 VA evaluation, October 2011 private evaluation, and the current May 2012 evaluation were very similar; however, the word discrimination scores showed significant discrepancies between all three examinations.  Therefore, the VA examiner opined that the September 2011 examination more nearly reflected the Veteran's functional impairment.  

The examiner opined that the Veteran's word discrimination scores were not a reliable reflection of his speech discrimination ability.

In summarizing the above, the Board concludes that the results of audiometric and speech discrimination testing have varied too much from 2009 to 2012 to reach a conclusion that reduction of the hearing loss disability rating from 30 percent to 10 percent was warranted from July 1, 2012.  Improvement of the Veteran's condition is simply not clearly indicated.  The test results are unclear and the Veteran must be given the benefit of the doubt.

At the outset, the Board notes that the September 2011 VA examination conducted prior to the proposed rating reduction was not as thorough as those examinations preceding and following the examination as the examiner noted that she did not review the claims file.  In charting the Veteran's hearing loss from the aforementioned examinations in September 2011, October 2011, and May 2012 results in disability ratings (respectively) ranging from 10, 70, and 100 percent.  When using Table VIA for hearing impairment based only on the pure tone threshold average for the most recent findings in May 2012, as the May 2012 VA stated that the Veteran's word discrimination scores were not a reliable, the rating for hearing loss would be 20 percent, not 10 percent.

It is noted that the Board's decision does not preclude the RO from once again initiating proceeding to reduce the Veteran's rating after properly following all necessary notice procedures for the reduction of benefits as set forth under 38 C.F.R. § 3.105(e), (i).  The Board emphasizes that all examination reports used to support a reduction must thoroughly explain the puretone and speech discrimination results, to include a discussion of inter test reliability if necessary.  

The rating must therefore be restored, effective the date of the reduction.

Finally, at no time during the pendency of this claim did the Veteran's hearing loss disability warrant a rating greater than 30 percent.  The Board acknowledges that in charting the Veteran's hearing loss per the October 2011 private evaluation resulted in a 70 percent rating; however, that rating is based upon using speech discrimination scores in Table VI.  

As the May 2012 VA examiner found that the Veteran's word discrimination scores were not a reliable reflection of his speech discrimination ability, and the Board agrees based upon the private examiner's diagnosis of moderate to severe hearing loss, the Board finds that a 70 percent rating is not an adequate reflect of the Veteran's hearing loss and therefore not a warranted rating.  

Moreover, the private audiologist did not report the results of the audiogram in decibels for each frequency.  Instead, the audiogram report only depicts the pure tone thresholds exhibited by the Veteran on a graph, making the findings less reliable.

Tinnitus

The Veteran requested an evaluation in excess of 10 percent for tinnitus.  The November 2009 rating decision granted service connection for this condition and assigned a 10 percent disability rating effective from August 20, 2009.  The Veteran filed a notice of disagreement, requesting an increased disability evaluation. 

In Smith v. Nicholson, 19 Vet. App. 63, 78, (2005) Court held that the pre-1999 and pre-June 13, 2003 versions of Diagnostic Code (DC) 6260 required the assignment of dual ratings for bilateral tinnitus.  VA appealed this decision to the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) and stayed the adjudication of tinnitus rating cases affected by the Smith decision.  See Chairman's Memorandum No. 01-05-08 (April 28, 2005).  In Smith v. Nicholson, 451 F.3d 1344 (Fed. Cir. 2006), the Federal Circuit concluded that the Court erred in not deferring to the VA's interpretation of its own regulations, 38 C.F.R. § 4.25(b)  and DC 6260, which limits a veteran to a single disability rating for tinnitus, regardless whether the tinnitus is unilateral or bilateral.  Subsequently, the stay of adjudication of tinnitus rating cases was lifted. 

The Veteran's service-connected tinnitus has been assigned the maximum schedular rating available for tinnitus.  See 38 C.F.R. §4.87, DC 6260.  

As there is no legal basis upon which to award a higher evaluation, the Veteran's appeal must be denied.  See Sabonis v. Brown, 6 Vet. App. 426 (1994). 

Other Considerations

In exceptional cases an extraschedular rating may be provided.  38 C.F.R. § 3.321.  The Court has set out a three-part test, based on the language of 38 C.F.R. § 3.321(b)(1), for determining whether a veteran is entitled to an extra-schedular rating: (1) the established schedular criteria must be inadequate to describe the severity and symptoms of the claimant's disability; (2) the case must present other indicia of an exceptional or unusual disability picture, such as marked interference with employment or frequent periods of hospitalization; and (3) the award of an extra-schedular disability rating must be in the interest of justice.  Thun v. Peake, 22 Vet. App. 111 (2008), aff'd, Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). 

The Board finds that the rating criteria contemplate the Veteran's symptoms related to his hearing loss disability and tinnitus.  The record does not present, and it has not been asserted, that the record presents such an exceptional or unusual disability picture as to warrant the assignment of an extraschedular evaluation pursuant to the provisions of 38 C.F.R. § 3.321  (2012).  In this regard, the Board notes that there has been no demonstration that the service-connected hearing loss or tinnitus are productive of marked interference with employment, beyond that contemplated in the current ratings, nor productive of frequent hospitalization, as to prevent the use of the regular rating criteria.  See Floyd v. Brown, 9 Vet. App. 88, 94 (1996).  
The diagnostic criteria adequately contemplate the Veteran's symptomatology.  See Thun v. Peake, 22 Vet. App. 111, 115 (2008).  In sum, the Schedule for Rating Disabilities is shown to provide a fair and adequate basis for rendering a decision in this case.  Consequently, referral for a higher rating on an extraschedular basis is not warranted. 

Finally, the Board has considered whether this appeal raises a claim of entitlement to a total disability evaluation based upon individual unemployability due to service-connected disability (TDIU).  See Rice v. Shinseki, 22 Vet. App. 447   (2009) (a request for TDIU, whether expressly raised by a veteran or reasonably raised by the record, is not a separate claim for benefits, but is rather part of the adjudication of a claim for increased compensation).  The Board finds no basis for such action in this case as the evidence does not otherwise suggest that the disabilities on appeal have rendered him unable to secure or follow a substantially gainful occupation.

Duties to Notify and Assist

As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a 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. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). 

Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002).  Proper notice from VA 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.  This notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ). Mayfield v. Nicholson, 444 F.3d 1328   (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). 

VA also has a duty to assist the veteran in the development of the claim.  This duty includes assisting the veteran in the procurement of service medical records and pertinent treatment records and providing an examination when necessary.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. 

With respect the increased rating claims, notice fulfilling the requirements of 38 C.F.R. § 3.159(b) was furnished to the Veteran in a September 2009 letter and the September 2010 statement of the case.  The Veteran also received notice regarding the disability-rating and effective-date elements of the claims in the September 2009 letter.  See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). 

The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the appellant.  See Bernard v. Brown, 4 Vet. App. 384 (1993). 

The RO has obtained the Veteran's service treatment records, as well as pertinent post-service records.  The Veteran submitted private examination records and lay statements.  The appellant was afforded a VA and VA-contracted medical examinations as noted above.  Specifically, the September 2009 and May 2012 examinations were based upon review of the claims folder, and thoroughly discuss the nature and severity of the Veteran's disabilities as well as the functional impairments resulting therefrom.  The examination reports are adequate for rating purposes.  See 38 C.F.R. § 4.2. 

Significantly, neither the appellant nor his representative has identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained.  Hence, no further notice or assistance to the appellant is required to fulfill VA's duty to assist the appellant in the development of the claim.  Smith v. Gober, 14 Vet. App. 227   (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). 

In this case, the Board has restored the Veteran's disability ratings for the hearing loss claim effective to the date of the rating reduction.  This constitutes a full grant of the benefits sought in regards to the propriety of the reduction on appeal.  Thus, the Board need not discuss the RO compliance with the due process procedures applicable to this type of claim or VA's duty to assist in the development of the claim.

ORDER

The reduction in the rating for hearing loss from 30 to 10 percent, effective from July 1, 2012, was not proper and consequently the 30 percent rating is restored. 

Entitlement to a rating in excess of 30 percent for hearing loss is denied. 

Entitlement to an initial disability rating in excess of 10 percent for tinnitus is denied.


____________________________________________
JOHN J. CROWLEY
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs