Citation Nr: 1306750	
Decision Date: 02/27/13    Archive Date: 03/01/13

DOCKET NO. 99-08 267	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in North Little Rock, Arkansas


THE ISSUES

1. Entitlement to a higher initial rating for bilateral hearing loss disability, to-wit: a compensable rating prior to March 26, 1997; a rating greater than 10 percent from March 26, 1997 to June 16, 1998; a compensable rating from June 17, 1998 to January 3, 1999; a rating greater than 90 percent from January 4, 1999 to February 28, 2003; and a rating greater than 20 percent since March 1, 2003.

2. Propriety of the reduction in disability for service-connected bilateral hearing loss from 90 to 20 percent.



ATTORNEY FOR THE BOARD

Dan Brook, Counsel




INTRODUCTION

The Veteran served on active duty from September 1974 to January 1976. 

This case comes before the Board of Veterans' Appeals (Board) from an August 1998 rating decision of the North Little Rock, Arkansas, Regional Office (RO) of the Department of Veterans Affairs (VA). 

The Veteran submitted a claim of entitlement to service connection for hearing loss in October 1977. In February 1978, the RO issued a rating decision granting entitlement to service connection for left ear hearing loss. The decision makes no mention of the right ear. A noncompensable evaluation was assigned, effective October 31, 1977, the date the Veteran's claim was received. 

In August 1998, the RO awarded the Veteran service connection for right ear hearing loss, thus establishing bilateral service-connected hearing loss. The effective date assigned for bilateral hearing loss was October 31, 1977, the date of the Veteran's original post-service claim. The Veteran perfected an appeal of this decision. In February 1999, the RO awarded the Veteran an increase in the evaluation of his bilateral hearing loss to 90 percent disabling, effective January 4, 1999. The Veteran perfected an appeal challenging the assigned effective date. 

The Board remanded the case for additional development in March 2001. In a December 2002 rating decision, the RO reduced the rating from 90 percent to 10 percent effective March 1, 2003. In a May 2003 decision, the Board granted a 10 percent rating for the period from May 28, 1997, to June 18, 1998; but otherwise confirmed the decisions by the RO. 

The Veteran appealed the Board's decision to the Court of Appeals for Veterans Claims (Court). In November 2003, VA and the Veteran through counsel filed a joint motion to partially vacate the Board's decision and remand the matter for additional action. The Court granted that motion later that month. 
In April 2004, the Board remanded the case for additional development. In a December 2005 decision, the Board granted a 10 percent rating for the period from March 26, 1997 to May 28, 1997 but otherwise confirmed the decisions by the RO. 

The Veteran appealed the December 2005 decision to the Court. The Veteran and VA subsequently filed a Joint Motion for Remand with the Court. In a January 2007 Order, the Court remanded the claim to the Board for compliance with the instructions in the Joint Motion. 

Upon review in July 2007, the Board remanded the appeal to the RO via the Appeals Management Center (AMC), in Washington, DC, and directed that the Veteran be afforded another examination in accordance with VA's duty to assist. Subsequently, the Board reviewed the results of a September 2007 VA audiological examination, and, in July 2008, found it did not provide sufficient evidence to allow adjudication of this appeal. In April 2010 this matter was again remanded for the provision of additional medical opinions and an opinion from the Director of the Compensation and Pension Service. 

Subsequent to the issuance of a June 2011 Statement of the Case, the Veteran submitted additional evidence for consideration. Although some of this material had been previously considered by VA, some of the lay statements had not been reviewed by the RO. However, the Veteran stated in an accompanying letter that he waived RO jurisdiction allowing the Board to accept this evidence for inclusion in the record on appeal. See 38 C.F.R. § 20.1304(c).

In a September 2011 decision, the Board denied the claim for increased disability compensation on a schedular basis and found that the reduction of the rating for hearing loss from 90 percent to 20 percent was proper. The Board also remanded a claim for entitlement to an extraschedular rating for hearing loss and a claim for entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU). These latter two claims are not currently before the Board. 

In a September 2012 order, the Court, pursuant to a joint motion by the parties, remanded the claims for increase and the issue of the propriety of the reduction of the rating for hearing loss from 90 percent to 20 percent for action consistent with the terms of the joint motion.  

The Veteran testified at a September 2000 videoconference hearing before a Veterans Law Judge who has since retired from the Board. A transcript of the hearing is associated with the Veteran's claims folder. In May 2007, the Veteran declined his right to an additional hearing. 

As part of its present decision, the Board has reviewed the record in depth, including with regard to determining whether the Veteran was afforded his due process rights in the development of evidence through testimony. At the September 2000 hearing, the Veteran was afforded an extensive opportunity to present testimony, evidence, and argument. The transcript reveals appropriate colloquies were conducted between the Veteran and the presiding Veterans Law Judge, in accordance with Stuckey v. West, 13 Vet. App. 163 (1999) and Constantino v. West, 12 Vet. App. 517 (1999) (relative to the duty of hearing officers to suggest the submission of favorable evidence).

The transcript also reflects that the presiding Veterans Law Judge conducted the hearing in accordance with the statutory duties to "explain fully the issues and suggest the submission of evidence which the claimant may have overlooked and which would be of advantage to the claimant's position," pursuant to 38 C.F.R. 
§ 3.103(c)(2), as explained by the Court in Bryant v. Shinseki, 23 Vet. App. 488 (2010). Specifically, the transcript reflects that the Veterans Law Judge identified the material issue, as it existed at that time - whether the Veteran was entitled to a compensable disability rating for hearing loss prior to January 4, 1999. The record reflects testimony as to the Veteran's past and (then) current symptoms, medical treatment, whether the disability had worsened, and how the disability affected his employment and daily life. The Board finds that the hearing officer's duties in 38 C.F.R. § 3.103(c)(2) were met and that the Veteran was not prejudiced by the hearing that was provided. See Bryant, 23 Vet. App. at 498 (citing to 38 U.S.C. 
§ 7261(b)(2); Shinseki v. Sanders, 129 S. Ct. 1696, 1704 (2009)). The September 2000 hearing was legally sufficient.

As observed in the April 2010 remand and September 2011 decision, the Veteran wrote a September 2007 letter contending that he was entitled to an earlier effective date (specifically January 1976 instead of October 1977) for his service-connected hearing loss. He has since reiterated this contention, noting that the matter had not been adjudicated by the RO. A claim of entitlement to an earlier effective date for hearing loss has been raised by the record. Since this claim has not been adjudicated by the Agency of Original Jurisdiction (AOJ), the Board does not have jurisdiction over it and it is REFERRED to the AOJ for appropriate action.


FINDINGS OF FACT

1. In January 1978, the Veteran's hearing disability was manifested by Level I hearing in the right ear and Level IV hearing in the left ear.

2. In September 1989, the Veteran's hearing disability was manifested by Level I hearing in the right ear; testing could not reveal the level of disability in the left ear.

3. In February 1996, the Veteran's hearing disability was manifested by Level I hearing in the right ear and Level IV hearing in the left ear.

4. In December 1996, the Veteran's hearing disability was manifested by Level I hearing in the right ear and Level V hearing in the left ear.

5. In January 1997, the Veteran's hearing disability was manifested by Level I hearing in the right ear and Level V hearing in the left ear.

6. In March 1997, the Veteran's hearing disability was manifested by Level I hearing in the right ear and Level V hearing in the left ear.

7. In May 1997, the Veteran's hearing disability was manifested by Level II hearing in the right ear and Level VI hearing in the left ear.

8. In June 1998, the Veteran's hearing disability was manifested by Level I hearing in the right ear and Level VII hearing in the left ear.

9. In February 1999, the Veteran's hearing disability was manifested by Level II hearing in the right ear and Level VII hearing in the left ear.

10. Following the February 1999 VA examination, the RO, in a February 1999 rating decision, erroneously assigned a 90 percent disability rating.

11. The results of a February 2002 examination were not acceptable for rating purposes, but use of average pure tone thresholds, only, from this examination reflect that the Veteran's hearing disability was manifested by a Level III impairment of the right ear and a Level VII impairment of the left ear. 

12. On October 3, 2002, the RO issued a rating decision proposing to reduce the rating for bilateral hearing loss to 10 percent.

13. By a letter dated October 15, 2002, the RO notified the Veteran that the RO proposed to reduce his disability evaluation and notified him of the reasons for that proposed reduction.

14. By a rating decision dated December 27, 2002 the RO implemented a reduction to 10 percent for the audiological disability. Notice of the reduction was mailed to the Veteran December 27, 2002.

15. In reducing the disability rating, the RO met all due process requirements in executing the reduction, and the decision to reduce the ratings was properly substantiated by the evidence of record, which reflected clear and unmistakable error in the February 1999 rating decision.

16. In September 2004, a VA audiological examiner opined that word recognition scores from 1999 and 2002 lacked reliability.

17. The results of a September 2007 VA audiological examination were not acceptable for rating purposes.

18. In August 2010, the Veteran's hearing disability was manifested by Level II hearing in the right ear and Level III hearing in the left ear. 


CONCLUSIONS OF LAW

1. The criteria for a compensable disability evaluation for bilateral hearing loss are not met prior March 26, 1997. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.85, Diagnostic Code 6100 (2012).

2. The criteria for a disability evaluation in excess of 10 percent for bilateral hearing loss are not met from March 26, 1997 to June 16, 1998. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.85, Diagnostic Code 6100 (2012).

3. The criteria for a compensable disability evaluation for bilateral hearing loss are not met from June 17, 1998 to January 3, 1999. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.85, Diagnostic Code 6100 (2012).

4. The criteria for the assignment of a rating in excess of 90 percent have not been met at any time during the period from January 4, 1999 to February 28, 2003 and the reduction in disability for service-connected hearing loss from 90 to 10 percent, effective March 1, 2003, was proper. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.105, 3.344, 4.1, 4.2, 4.85, 4.97, Diagnostic Code 6100 (2012).

5. The criteria for a disability evaluation in excess of 20 percent for bilateral hearing loss are not met since March 1, 2003. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.85, Diagnostic Code 6100 (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

In this decision, the Board will discuss the relevant law which it is required to apply. This includes statutes enacted by Congress and published in Title 38, United States Code ("38 U.S.C.A."); regulations promulgated by VA under the law and published in the Title 38 of the Code of Federal Regulations ("38 C.F.R.") and the precedential rulings of the United States Court of Appeals for the Federal Circuit (Federal Circuit) (as noted by citations to "Fed. Cir.") and the United States Court of Appeals for Veterans Claims (Court) (as noted by citations to "Vet. App."). 

The Board is bound by statute to set forth specifically the issue under appellate consideration and its decision must also include separately stated findings of fact and conclusions of law on all material issues of fact and law presented on the record, and the reasons or bases for those findings and conclusions. 38 U.S.C.A. 
§ 7104(d); see also 38 C.F.R. § 19.7 (implementing the cited statute); see also Vargas-Gonzalez v. West, 12 Vet. App. 321, 328 (1999); Gilbert v. Derwinski, 1 Vet. App. 49, 56-57 (1990) (the Board's statement of reasons and bases for its findings and conclusions on all material facts and law presented on the record must be sufficient to enable the claimant to understand the precise basis for the Board's decision, as well as to facilitate review of the decision by courts of competent appellate jurisdiction. The Board must also consider and discuss all applicable statutory and regulatory law, as well as the controlling decisions of the appellate courts). 

Duties to Assist and Notify

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); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a).

Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the Veteran and his 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) (West 2002); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper VCAA notice must inform the Veteran 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. See 38 C.F.R. § 3.159(b)(1).

As noted above, the Veteran's claim is for an initial compensable evaluation and VA General Counsel has held that 38 U.S.C.A. § 5103(a) does not require VA to provide separate notice for newly raised or "downstream" issues, such as claims for increased compensation following the initial grant of service connection for a disability, in response to notice of its decision on a claim for which VA has already given the appropriate section 5103(a) notice (see VAOPGCPREC 8-2003 (Dec. 22, 2003)). The claims file reflects that the Veteran has received notice from VA over the years as the law has changed regarding the extent of VA's duty to notify, but, in April 2004, he received notice in accordance with the requirements of the VCAA informing him of the evidence and information he was responsible for obtaining and the evidence that was considered VA's responsibility to obtain. Further, a March 2010 corrective notice was mailed to the Veteran explaining how a disability rating is determined for a service-connected disorder and the basis for determining an effective date upon the grant of any benefit sought, in compliance with Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 490-491 (2006). 

The 2004 and 2010 letters were provided to the Veteran after the initial adjudication of his claim and thus represent a "timing error." See Pelegrini v. Principi, 18 Vet. App. 112 (2004). However, the claim was re-adjudicated in a June 2011 supplemental statement of the case. The law recognizes that timing errors can be effectively "cured" by providing the necessary additional notice and readjudicating the claim in a statement of the case (SOC), such that the intended purpose of the notice is not frustrated and the Veteran is given an opportunity to participate effectively in the adjudication of the claim. See Mayfield v. Nicholson, 499 F.3d 1317, 1323 (Fed. Cir. 2007) (Mayfield IV); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). 

VA has a duty to assist veterans in obtaining evidence necessary to substantiate their claims. The claims file contains the service treatment records, the reports of VA examinations (January 1978, September 1989, February 1992, December 1996, January 1997, March 1997, May 1997, July 1998, February 1999, February 2002, September 2004, September 2007, October 2008, and two (2) medical opinions dated August 2010), and lay statements. The Veteran has not reported any additional medical treatment for his hearing disability. When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The VA examination reports all reflect review of the Veteran's hearing loss and attempted evaluation of his current level of hearing disability. 

As noted below, VA found several of the medical examinations provided not probative because of the Veteran's apparent misrepresentation of the severity of his disorder or his unwillingness to cooperate. The examiners were not able to verify test results due to the Veteran's behavior during the examinations. The claim was remanded in April 2010 for a thorough examination and an opinion as to why the Veteran appeared unable to complete a full auditory evaluation; this examination and opinion was obtained in August 2010. As required by Martinak v. Nicholson, 21 Vet. App. 447 (2007), the August 2010 examination report also reflects inquiry into the functional effects of the Veteran's hearing loss. 

As noted above, this claim was previously remanded by both the Board and the Court for further development. See e.g. January 2007 and September 2012 Orders from the Court and remands from the Board dated July 2007, July 2008, and April 2010. The Court remanded the claim to the Board in January 2007 to provide additional reasons and bases for its decision, to include addressing whether a thorough and contemporaneous medical examination was necessary and whether the Veteran was entitled to an extraschedular evaluation for his service-connected hearing loss. In July 2007, the Board remanded the appeal to the RO via the Appeals Management Center (AMC) for the provision of another examination in accordance with VA's duty to assist the Veteran in the development of his claim. 

In July 2008, the Board found that the resulting medical opinion was inadequate for rating purposes and was to be returned to the examiner. In April 2010 this matter was again remanded for the provision of additional medical opinions and an opinion from the Director of the Compensation and Pension Service as to the Veteran's entitlement to an extraschedular evaluation.  In September 2012, the Court, pursuant to a joint motion by the parties, found that in regard to the propriety of the reduction in the disability rating for bilateral hearing loss from 90 to 20 percent, the Board had mischaracterized the controlling regulation governing when it is appropriate for VA to rate the Veteran's hearing loss disability on the basis of pure tone threshold loss alone ((i.e. the version of 38 C.F.R. § 4.85(c) in effect prior to June 10, 1999)). According to the parties, this mischaracterization did not allow the Veteran to understand the precise basis for the Board's decision and hampered judicial review.  Additionally, as the other issues on appeal were inextricably intertwined with that of the propriety of the reduction, remand was required in relation to these issues.  

The record reflects that additional, adequate medical opinions have been obtained and associated with the claims file as well as an opinion from the Director of the Compensation and Pension Service. The Veteran most recently received an audiological evaluation in August 2010 and there is no medical evidence of record suggesting that his hearing loss has worsened since then, nor is there any allegation of worsening. Moreover, in the analysis below, the Board has correctly characterized the version of 38 C.F.R. § 4.85(c) in effect prior to June 10, 1999 and has specifically explained why application of this regulation was appropriate in rating the Veteran's hearing loss disability, thus allowing for a clear understanding of the basis for the Board's current decision pertaining to the propriety of the rating reduction. The Board finds that all actions and development directed in earlier remands have been substantially completed. Dyment v. West, 13 Vet. App. 141, 146-47 (1999).

The Veteran has not made the RO or the Board aware of any additional evidence that must be obtained in order to fairly decide the claims on appeal. He has been given ample opportunity to present evidence and argument in support of his claims. Pursuant to 38 C.F.R. § 3.655, all relevant evidence necessary for an equitable disposition of the Veteran's appeal of this issue has been obtained and the case is ready for appellate review. 

In light of the law requiring mechanical application of rating criteria in claims for hearing loss, the Board finds that all necessary development has been accomplished as to schedular consideration and appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). The Board additionally finds that general due process considerations have been complied with by VA. See 38 C.F.R. § 3.103.

Increased Rating

Disability evaluations are based upon the average impairment of earning capacity as determined by a schedule for rating disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. 
Part 4. Separate rating codes identify the various disabilities. 38 C.F.R. Part 4.

In determining the current level of impairment, the disability must be considered in the context of the whole recorded history. 38 C.F.R. §§ 4.2, 4.41. An evaluation of the level of disability present also includes consideration of the functional impairment of the veteran's ability to engage in ordinary activities, including employment, and the effect of pain on the functional abilities. 

The determination of whether an increased evaluation is warranted is based on review of the entire evidence of record and the application of all pertinent regulations. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Once the evidence is assembled, the Secretary is responsible for determining whether the preponderance of the evidence is against the claim. See Gilbert, 1 Vet. App. 49, 55 (1990). If so, the claim is denied; if the evidence is in support of the claim or is in equal balance, the claim is allowed. Id. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7.

Where, as here, the Veteran has appealed the initial rating given at the time service connection was established, in assigning the initial rating, the Board must consider the propriety of assigning one or more levels of rating -"staged" ratings- from the initial effective date forward, based on evidence as to the severity of disability. See Fenderson v. West, 12 Vet. App. 119, 126-7 (1999). Thus, the Board has considered whether different ratings may be warranted for different time periods based on the evidence of record. 

The Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). However, although an obligation to provide sufficient reasons and bases in support of an appellate decision exists, there is no need to discuss, in detail, all of the evidence submitted by the Veteran or on his or her behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (holding that the entire record must be reviewed, but each piece of evidence does not have to be discussed). The analysis in this decision focuses on the most salient and relevant evidence, and on what the evidence shows or fails to show with respect to the appeal. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (noting that the law requires only that reasons for rejecting evidence favorable to the claimant be addressed).

The evaluation of evidence generally involves a 3-step inquiry. First, the Board must determine whether the evidence comes from a "competent" source. The Board must then determine if the evidence is credible, or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303 at 308 (2007) (Observing that once evidence is determined to be competent, the Board must determine whether such evidence is also credible). The third step of this inquiry requires the Board to weigh the probative value of the proffered evidence in light of the entirety of the record. 

Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159. Lay evidence may be competent and sufficient to establish a diagnosis of a condition when:

(1) a layperson is competent to identify the medical condition (i.e., when the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer);

      (2) the layperson is reporting a contemporaneous medical diagnosis, or;

(3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. 

Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007); see also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009) (where widow seeking service connection for cause of death of her husband, the Veteran, the Court holding that medical opinion not required to prove nexus between service connected mental disorder and drowning which caused Veteran's death). 

In certain instances, lay evidence has been found to be competent with regard to a disease with "unique and readily identifiable features" that is "capable of lay observation." See, e.g., Barr v. Nicholson, 21 Vet. App. 303 (2007) (concerning varicose veins); see also Jandreau, 492 F. 3d 1372 (Fed. Cir. 2007) (a dislocated shoulder); Charles v. Principi, 16 Vet. App. 370 (2002) (tinnitus); Falzone v. Brown, 8 Vet. App. 398 (1995) (flatfeet). Laypersons have also been found to not be competent to provide evidence in more complex medical situations. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (concerning rheumatic fever). 

Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also include statements conveying sound medical principles found in medical treatises. It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1).

After determining the competency and credibility of evidence, the Board must then weigh its probative value. In this function, the Board may properly consider internal inconsistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498, 511-512 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (per curiam) (table); see Madden v. Brown, 125 F.3d 1447 (Fed Cir. 1997) (holding that the Board has the "authority to discount the weight and probative value of evidence in light of its inherent characteristics in its relationship to other items of evidence").

The Veteran was granted entitlement to service connection for bilateral hearing loss by an August 1998 rating decision and assigned a non-compensable evaluation effective October 31, 1977. He timely appealed the disability rating assigned. Having carefully considered the claims in light of the record and the applicable law, the Board finds that in regard to the Veteran's hearing loss, prior to March 26, 1997, a compensable rating is not warranted; a rating greater than 10 percent from March 26, 1997 to June 16, 1998 is not warranted; a compensable rating from June 17, 1998 to January 3, 1999 is not warranted; a rating greater than 90 percent from January 4, 1999 to February 28, 2003 is not warranted; the reduction of the rating from 90 percent to 20 percent effective March 1, 2003 was proper; and a rating greater than 20 percent since March 1, 2003 is not warranted. 38 C.F.R. § 4.85, Diagnostic Code 6100.

Relevant laws and regulations stipulate that evaluations of defective hearing range from non-compensable to 100 percent based on the organic impairment of hearing acuity. Hearing impairment is measured by the results of controlled speech discrimination tests together with the average hearing threshold levels (which, in turn, are measured by pure tone audiometry tests in the frequencies of 1,000, 2,000, 3,000, and 4,000 cycles per second). See Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992) (defective hearing is rated on the basis of a mere mechanical application of the rating criteria).

While this appeal was pending, the applicable rating criteria for hearing impairment and diseases of the ear were revised effective June 10, 1999. See 64 Fed. Reg. 25209 (May 11, 1999) (codified at 38 C.F.R. § 4.85). Table VII was amended so that hearing loss would be rated under a single code, 6100, regardless of the percentage of disability. Due to the timing of this change, the Board must consider the claim under the appropriate pre-amended regulations for any period prior to the effective date of the amendments. Thereafter, the Board must analyze the evidence and consider whether a higher rating is warranted under the new regulations. See VAOPGCPREC 7-2003. The RO has provided the Veteran notice of both the old and new regulations so the Board may proceed with a decision on the merits of the claims, with consideration of the original and revised regulations, without prejudice to the Veteran. See Bernard v Brown, 4 Vet. App. 384, 393-394 (1993).

Prior to June 10, 1999, evaluations of bilateral defective hearing ranged 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 audiometry tests in the frequencies 1000, 2000, 3000 and 4000 cycles per second, with 11 auditory acuity levels designated from Level I for essentially normal acuity through Level XI for profound deafness. 38 C.F.R. §§ 4.85, 4.87, Table VI, Diagnostic Codes 6100 to 6110 (effective before June 10, 1999). Table VIa provided numeric designations based solely on pure tone averages and was for application only when the Chief of the Audiology Clinic certified that language difficulties or inconsistent speech audiometry scores made the use of both pure tone averages and speech discrimination inappropriate. 38 C.F.R. § 4.85(c) (effective before June 10, 1999).  

Effective June 10, 1999, the regulations for hearing loss disability were amended to ensure that current medical terminology and unambiguous criteria were used, and to reflect current medical advances. See 64 Fed. Reg. 25202 (May 11, 1999). The tables used to assign the Roman numerals and to assign the appropriate disability rating were not changed. Id. 


The revised provisions of 38 C.F.R. § 4.85 establish eleven auditory acuity levels from I to XI. Tables VI and VII as set forth in § 4.85(h) are used to calculate the rating to be assigned. In instances where, because of language difficulties, inconsistent speech discrimination scores, etc., or when indicated under the provisions of §4.86, an examiner certifies that the use of the speech discrimination scores is not appropriate, Table VIa is to be used to assign a rating based on pure tone threshold averages alone. 38 C.F.R. § 4.85(c).

In cases involving exceptional patterns of hearing impairment, the schedular criteria stipulates that, 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). Additionally, when the pure tone 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).

As noted above, in a February 1978 rating decision, the RO granted entitlement to service connection for left ear hearing loss and assigned a non-compensable rating effective October 1977. In an August 1998 rating decision, the RO determined that service connection was warranted for the right ear, thus granting the Veteran entitlement to service connection for bilateral hearing loss, assigning a non-compensable rating effective October 1977.

The issue of entitlement to an extraschedular rating for the Veteran's bilateral hearing loss was subject to the September 2011 remand and is not currently before the Board. Thus, it is not addressed in this decision.  




Prior to March 26, 1997 (entitlement to a compensable disability rating)

A January 1978 VA audiological examination report revealed the Veteran's pure tone thresholds for the right ear, in decibels, were: 5 at 1000 Hz, 5 at 2000 Hz, not available at 3000 Hz, and 50 at 4000 Hz. The pure tone threshold average was 20. Pure tone thresholds for the left ear, in decibels, were: 35 at 1000 Hz, 60 at 2000  Hz, not available at 3000 Hz, and 75 at 4000 Hz. The pure tone threshold average was 56.7. Speech recognition was 96 percent in the right ear and 76 percent in the left ear per the Maryland CNC test. The examiner noted no gross hearing loss.

Considering the average pure tone thresholds and speech discrimination scores, the January 1978 examination reflects that, pursuant to 38 C.F.R. § 4.87 Table VI, right ear hearing disability is manifested by Level I impairment and left ear hearing disability by Level IV. Application of these scores to Table VII results in a noncompensable disability rating. 

A September 1989 VA audiological examination report revealed the Veteran's pure tone thresholds for the right ear, in decibels, were: 15 at 1000 Hz, 15 at 2000 Hz, 25 at 3000 Hz, and 30 at 4000 Hz. The pure tone threshold average was 21.3. Pure tone thresholds for the left ear were not available; the examiner explained that the Veteran was "exhibiting functional behavior." Speech recognition was 96 percent in the right ear and 88 percent in the left ear per the Maryland CNC test. The examiner noted that a modified Stenger test on the left side revealed the possibility of hearing sensitivity in the mild hearing loss range. The examiner opined that left ear hearing loss was probably not greater than mild to moderate, but stated that the examination was not adequate for rating purposes. Use of 38 C.F.R. § 4.87 Table VI shows a Level I hearing impairment of the right ear.

A February 1992 VA audiological examination report revealed the Veteran's pure tone thresholds for the right ear, in decibels, were: 20 at 1000 Hz, 20 at 2000 Hz, 60 at 3000 Hz, and 65 at 4000 Hz. The pure tone threshold average was 41.25. Pure tone thresholds for the left ear, in decibels, were: 40 at 1000 Hz, 60 at 2000 Hz, 75 at 3000 Hz, and 85 at 4000 Hz. The pure tone threshold average was 65. Speech recognition was 96 percent in the right ear and 76 percent in the left ear per the Maryland CNC test. The examiner diagnosed moderate to severe sensorineural hearing loss in the higher frequencies.

Considering the average pure tone thresholds and speech discrimination scores, the February 1992 examination reflects that, pursuant to 38 C.F.R. § 4.87 Table VI, right ear hearing disability was manifested by Level I impairment and left ear hearing disability by Level IV. Application of these scores to Table VII results in a noncompensable disability rating. 

A December 1996 VA audiological examination report revealed the Veteran's pure tone thresholds for the right ear, in decibels, were: 20 at 1000 Hz, 15 at 2000 Hz, 60 at 3000 Hz, and 55 at 4000 Hz. The pure tone threshold average was 37.5. Pure tone thresholds for the left ear, in decibels, were: 50 at 1000 Hz, 65 at 2000 Hz, 90 at 3000 Hz, and 110 at 4000 Hz. The pure tone threshold average was 78.75. Speech recognition was 96 percent in the right ear and 76 percent in the left ear per the Maryland CNC test. 

Considering the average pure tone thresholds and speech discrimination scores, the December 1996 examination reflects that, pursuant to 38 C.F.R. § 4.87 Table VI, right ear hearing disability was manifested by Level I impairment and left ear hearing disability by Level V. Application of these scores to Table VII results in a zero percent disability rating. 

A January 1997 VA audiological examination report revealed the Veteran's pure tone thresholds for the right ear, in decibels, were: 15 at 1000 Hz, 20 at 2000 Hz, 60 at 3000 Hz, and 60 at 4000 Hz. The pure tone threshold average was 38.75. Pure tone thresholds for the left ear, in decibels, were: 45 at 1000 Hz, 70 at 2000 Hz, 90 at 3000 Hz, and 105+ at 4000 Hz. The pure tone threshold average was 77.5. Speech recognition was 94 percent in the right ear and 80 percent in the left ear per the Maryland CNC test. 

Considering the average pure tone thresholds and speech discrimination scores, the January 1997 examination reflects that, pursuant to 38 C.F.R. § 4.87 Table VI, right ear hearing disability is manifested by Level I impairment and left ear hearing disability by Level V. Application of these scores to Table VII results in a zero percent disability rating. 

As the right ear consistently reflected a Level I impairment and the left ear reflected no worse than Level V impairment, application of the results from Table VI to Table VII show that a non-compensable rating is appropriate for the entire period prior to March 26, 1997. 38 C.F.R. § 4.85 Table VII. The Board has no discretion in this matter and must predicate its determination solely on the basis of the results of the legally adequate audiological studies of record (see Lendenmann, 3 Vet. App. 345), which show that the Veteran is not entitled to a compensable disability rating prior to March 26, 1997.

March 26, 1997 to June 16, 1998 
(entitlement to a disability rating greater than 10 percent)

In March 1997 the Veteran's pure tone thresholds for the right ear, in decibels, were: 25 at 1000 Hz, 20 at 2000 Hz, 60 at 3000 Hz, and 60 at 4000 Hz. The pure tone threshold average was 41.25. Pure tone thresholds for the left ear, in decibels, were: 45 at 1000 Hz, 65 at 2000 Hz, 85 at 3000 Hz, and 110 at 4000 Hz. The pure tone threshold average was 76.25. Speech recognition was 88 percent in the right ear and 76 percent in the left ear per the Maryland CNC test.

Considering the average pure tone thresholds and speech discrimination scores, the March 1997 examination reflects that, pursuant to 38 C.F.R. § 4.87 Table VI, right ear hearing disability is manifested by Level I impairment and left ear hearing disability by Level V. Application of these scores to Table VII results in a zero percent disability rating. 

A May 1997 VA audiological examination report revealed the Veteran's pure tone thresholds for the right ear, in decibels, were: 20 at 1000 Hz, 15 at 2000 Hz, 65 at 3000 Hz, and 55 at 4000 Hz. The pure tone threshold average was 38.75. Pure tone thresholds for the left ear, in decibels, were: 45 at 1000 Hz, 70 at 2000 Hz, 85 at 3000 Hz, and 105 at 4000 Hz. The pure tone threshold average was 76.25. Speech recognition was 90 percent in the right ear and 72 percent in the left ear per the Maryland CNC test. 

Considering the average pure tone thresholds and speech discrimination scores, the May 1997 examination reflects that, pursuant to 38 C.F.R. § 4.87 Table VI, right ear hearing disability is manifested by Level II impairment and left ear hearing disability by Level VI. Application of these scores to Table VII results in a 10 percent disability rating. 

The Veteran is already in receipt of a 10 percent disability rating for the March 26, 1997 to June 16, 1998 time period. As illustrated above, none of the examination findings of record show any basis for granting a rating in excess of 10 percent for this time frame. The Board has no discretion in this matter and must predicate its determination solely on the basis of the results of the legally adequate audiological studies of record (see Lendenmann, 3 Vet. App. 345) which show that the Veteran is not entitled to a disability rating in excess of 10 percent from March 26, 1997 to June 16, 1998.

June 17, 1998 to January 3, 1999
(entitlement to a compensable disability rating)

A June 17, 1998 VA audiological examination report revealed the Veteran's pure tone thresholds for the right ear, in decibels, were: 10 at 1000 Hz, 25 at 2000 Hz, 65 at 3000 Hz, and 60 at 4000 Hz. The pure tone threshold average was 40. Pure tone thresholds for the left ear, in decibels, were: 50 at 1000 Hz, 70 at 2000 Hz, 90 at 3000 Hz, and 105+ at 4000 Hz. The pure tone threshold average was 78.75. Speech recognition was 94 percent in the right ear and 64 percent in the left ear per the Maryland CNC test. 

Considering the average pure tone thresholds and speech discrimination scores, the June 1998 examination reflects that, pursuant to 38 C.F.R. § 4.87 Table VI, right ear hearing disability is manifested by Level I impairment and left ear hearing disability by Level VII. Application of these scores to Table VII results in a zero percent disability rating. 

In August 1998, the Veteran contended through his representative at the time that his hearing had worsened and interfered with his ability to work. An October 1998 statement from the Veteran's wife reflects that she observed that he spoke very loudly on the telephone, turned the television up to an uncomfortable (for her) level, and required others to repeat what they were saying. An October 1998 letter from the Veteran's daughter states that his hearing visibly interfered with his daily conversations since family members had to speak in very loud voices. An October 1998 letter from the Veteran's employer reflects that orders had to be written down to ensure the Veteran's understanding and that instructions given to him over the phone had to be repeated.

Despite the Veteran's contentions and the lay statements of record, the Board has no discretion in this matter and must predicate its rating determination solely on the basis of the results of the legally adequate audiological studies of record. Lendenmann, 3 Vet. App. 345. As the right ear reflected a Level I impairment and the left ear reflected Level VII impairment, application of the results from Table VI to Table VII show that a non-compensable rating is appropriate. The Veteran is not entitled to a compensable disability rating during the time period from June 17, 1998 to January 3, 1999.

January 4, 1999 to February 28, 2003
(entitlement to a disability rating greater than 90 percent and propriety of the reduction from 90 percent to 20 percent effective March 1, 2003).

In January 1999, the Veteran alleged that his hearing had worsened. Thus, in February 1999, VA provided him with an audiological examination. 

The February 1999 VA audiological examination revealed the Veteran's pure tone thresholds for the right ear, in decibels, were: 25 at 1000 Hz, 25 at 2000 Hz, 70 at 3000 Hz, and 65 at 4000 Hz. The pure tone threshold average was 46.25. Pure tone thresholds for the left ear, in decibels, were: 50 at 1000 Hz, 75 at 2000 Hz, 95 at 3000 Hz, and 105+ at 4000 Hz. The pure tone threshold average was 81.25. Speech recognition was 28 percent in the right ear and 16 percent in the left ear per the Maryland CNC test. The examiner, the Chief of the Little Rock VA Medical Center (VAMC) audiology clinic, stated that the "word recognition scores reflect a high number of non-responses and are not judged to be an accurate reflection of (the Veteran's) word recognition ability." Thus, she recommended rating the Veteran's hearing loss on the basis of his pure tone thresholds alone.  

If both the average pure tone thresholds and speech discrimination scores from the February 1999 VA examination are considered, pursuant to 38 C.F.R. § 4.87 Table VI, right ear hearing disability is manifested by Level X impairment and left ear hearing disability by Level XI. Application of these scores to Table VII results in a 90 percent disability rating. Based on these findings, the RO granted entitlement to a 90 percent disability rating for the bilateral hearing loss in a February 1999 rating decision. The 90 percent rating was made effective January 4, 1999, the date VA received the Veteran's letter contending that his disability had worsened.

However, 38 C.F.R. § 4.85(c) (effective prior to June 10, 1999) states that Table VIa, rather than Table VI, is for application when the Chief of the Audiology Clinic certifies that use of both pure tone averages and speech discrimination scores is inappropriate. Since the Chief of the Little Rock VAMC Audiology Clinic made such a certification in respect to the February 1999 scores, the speech discrimination scores must be disregarded and the average pure tone thresholds must be applied to Table VIa. Application of these scores to Table VIa shows that the Veteran had Level II impairment in his right ear and Level VII impairment in his left ear. Application of these scores to Table VII results in a 10 percent disability rating.

As noted above, the regulations for hearing loss disability were amended effective June 10, 1999. See 64 Fed. Reg. 25202 (May 11, 1999). Although the tables used to assign the Roman numerals and determine the appropriate disability rating were not changed, the Board's citations will, from this point forward, reflect application of the new regulations. Id. 


An April 2001 letter from a former employer states that the Veteran was employed as a tour bus driver from March 1990 to November 2000. The Veteran was terminated from his employment in 2000 due to difficulty hearing that resulted in communication problems with customers and his employer. The letter states that the employer believed that the Veteran's hearing disability rendered him unable to operate a motor coach in a safe manner.

A February 2002 VA audiological examination report revealed the Veteran's pure tone thresholds for the right ear, in decibels, were: 25 at 1000 Hz, 30 at 2000 Hz, 70 at 3000 Hz, and 70 at 4000 Hz. The pure tone threshold average was 49. Pure tone thresholds for the left ear, in decibels, were: 55 at 1000 Hz, 75 at 2000 Hz, 95 at 3000 Hz, and 105 at 4000 Hz. The pure tone threshold average was 83. Speech recognition was 52 percent in the right ear and 36 percent in the left ear per the Maryland CNC test. The examiner noted pseudohypacusic test behavior and that variability in the Veteran's responses prevented meaningful application of a Stenger test. Re-instruction and repeat testing was performed, but did not resolve the test discrepancies. The examiner stated that the results were not acceptable for rating purposes and that the June 1998 test provided the last reliable results of record for both pure tones and speech. The Veteran informed the examiner that he experienced difficulty during his work as a motor coach driver in that he was unable to understand some passenger requests. He reported that his lack of response to passenger requests had resulted in the termination of his employment.

Considering the average pure tone thresholds and speech discrimination scores, the February 2002 examination results reflect that, pursuant to 38 C.F.R. § 4.87 Table VI, right ear hearing disability is manifested by Level VI impairment and left ear hearing disability by Level X. Application of these scores to Table VII would result in a 50 percent disability rating.  However, the examiner stated that the test results were not acceptable for rating purposes and that the June 1998 examination results reflected the last reliable measure of the Veteran's hearing disability in both pure tone thresholds and speech discrimination. As noted above, application of the June 1998 scores to Tables VI and VII results in a zero percent disability rating. Also, as noted above, the subsequent February 1999 VA examination results provide a basis for assigning a 10 percent rating based on pure tone thresholds. Additionally, in a July 2005 rating decision, the RO assigned the 20 percent rating, which became effective March 1, 2003, on the basis of the February 2002 pure tone threshold findings alone. In any case, as the 90 percent rating for the Veteran's hearing loss remains in effect from January 4, 1999 to February 28, 2003 and as evaluation of the pertinent evidence shows no basis for assigning a rating in excess of 20 percent, an increased rating is not warranted for this time frame. 

An October 3, 2002 rating decision proposed a reduction to 10 percent in the Veteran's disability rating. A December 27, 2002 rating decision reduced the Veteran's disability rating to 10 percent, effective March 1, 2003. As mentioned above, in a July 2005 rating decision, the RO awarded a 20 percent disability rating effective March 1, 2003, based on application of the average pure tone thresholds from the February 2002 examination to 38 C.F.R. § 4.87 Table VIa.

The provisions of 38 C.F.R. § 3.105(e) allow for the reduction in evaluation of a service-connected disability when warranted by the evidence, but only after following certain procedural guidelines. The RO must issue a rating action proposing the reduction and setting forth all material facts and reasons for the reduction. The Veteran must then be given 60 days to submit additional evidence and to request a predetermination hearing. Then a rating action will be taken to effectuate the reduction. 38 C.F.R. § 3.105(e). The effective date of the reduction will be the last day of the month in which a 60 day period from the date of notice to the Veteran of the final action expires. 38 C.F.R. § 3.105(e), (i)(2)(i).

Previous determinations that are final and binding, including decisions of degree of disability, will be accepted as correct in the absence of clear and unmistakable error (CUE). 38 C.F.R. § 3.105(a). In order for a claim of clear and unmistakable error to be valid, there must have been an error in the prior adjudication of the claim; either the correct facts, as they were known at the time, were not before the adjudicator or the statutory or regulatory provisions extant at the time were incorrectly applied. Russell v. Principi, 3 Vet. App. 310, 313 (1992) (en banc).


Clear and unmistakable error is one of fact or law, that when called to the attention of later reviewers compels the conclusion, to which reasonable minds could not differ, that the result would have been manifestly different but for the error. Fugo v. Brown, 6 Vet. App. 40, 43 (1993).
 
If CUE is established, the prior decision(s) will be reversed or amended. For the purpose of authorizing benefits, the rating or other adjudicative decision which constitutes a reversal of a prior decision on the grounds of CUE has the same effect as if the corrected decision(s) had been made on the date of the reversed decision. Id. However, if the administrative error or error in judgment results in a reduction or severance of a benefit, 38 C.F.R. § 3.500(b)(2) will apply exact as provided in 38 C.F.R. § 3.105(d) and (e). 38 C.F.R. § 3.105(d) applies to cases where service connection was severed and is not applicable to the present case. However, this case does result in a reduction in evaluation so the provisions of 38 C.F.R. § 3.105(e) are applicable.

The requirements under 38 C.F.R. § 3.105(e) for reduction of the 90 percent disability rating assigned for the Veteran's hearing loss were properly followed by the RO. In an October 15, 2002 letter, the RO notified the Veteran of a proposed rating reduction (issued in an October 2002 rating decision) and the reasons for that reduction (error in the application of the Veteran's February 1999 hearing test results to Table VI rather than Table VIa, in accordance with 38 C.F.R. § 4.85(c)). The RO also advised the Veteran that within 60 days, he could submit any additional evidence to show that his rating should not be reduced. The RO further notified the Veteran that he could request a personal hearing. The Veteran initially requested a hearing in November 2002 and a hearing was scheduled for January 9, 2003. However, in a subsequent December 24, 2002 communication, the Veteran canceled the hearing, indicating that he did not desire one.  

The RO took final action in the December 27, 2002 rating decision, reducing the rating effective March 1, 2003. The RO informed the Veteran of this decision by letter dated December 27, 2002. This action was more than 60 days from the time of notice of the proposed action. The RO properly carried out the procedural requirements under 38 C.F.R. § 3.105(e) for reduction of the schedular disability ratings; the Veteran does not contend otherwise.

The reduction in this case was not based upon a finding of improvement in the disability. Instead, the action was based upon the RO's October 2002 finding of clear and unmistakable error as a matter of law in the February 1999 rating decision which assigned the 90 percent disability rating for the Veteran's hearing loss. Specifically, the RO noted that the rating decision erred in applying the Veteran's February 1999 hearing test results to Table VI, using his average pure tone thresholds and speech discrimination scores, rather than applying only his average pure tone thresholds to Table VIa, in accordance with 38 C.F.R. § 4.85(c), since the Chief Audiologist of the Little Rock VAMC audiology clinic certified that use of speech discrimination scores was inappropriate. 

As described in detail above, the February 1999 VA audiological examination report revealed the Veteran's pure tone threshold averages for his ears were 46.25 (right) and 81.25 (left). Speech recognition was 28 percent in the right ear and 16 percent in the left ear per the Maryland CNC test. Pertinent to those deficiencies noted in the September 2012 joint motion for remand, the Chief Audiologist of the Little Rock VAMC Audiology Clinic who conducted the examination, stated that the speech recognition scores reflected a high number of non-responses and were not an accurate reflection of the Veteran's word recognition ability. Thus, the Chief Audiologist recommended that the rating for the Veteran's hearing loss should be based on the pure tone threshold findings alone. 

This recommendation clearly constitutes a certification that inconsistent speech audiometry scores (i.e. the scores predicated on the numerous non-responses) in both ears made the use of both pure tone average and speech discrimination scores inappropriate for rating the Veteran's hearing loss. See e.g. Acevedo-Escobar v. West, 12 Veteran. App. 9 (1998)((VA examiner's finding that language difficulties made use of word recognition scores inappropriate amounted to a certification under § 4.85(c) that use of both pure tone threshold average and speech discrimination scores for rating purposes was inappropriate; the remaining question in that case was whether the examiner was a Chief Audiologist)). Thus, Table VIa, not Table VI, needed to be applied to rate the Veteran's hearing loss disability. 38 C.F.R. § 4.85(c) (effective prior to June 10, 2009). Application of the pure tone threshold scores to Table VIa shows that the Veteran had Level II impairment in his right ear and Level VII impairment in his left ear. Application of these scores to Table VII results in a 10 percent disability rating.

As mentioned above, prior to June 10, 1999, 38 C.F.R. § 4.85(c), indicates that Table VIa (rating on pure tone thresholds alone) may only be utilized when a Chief Audiologist certifies that language difficulties or inconsistent speech audiometry scores make it inappropriate to use both pure tone average and speech discrimination for rating purposes. 

In the instant case, as noted above, the February 1999 Chief Audiologist made such a certification.  The RO then failed to employ this extant regulatory provision in the February 1999 VA determination by applying Table VI rather than Table VIa. It does appear that under this version of 38 C.F.R. § 4.85(c), VA may have had the discretion not to apply table Via, even in the face of an appropriate certification by a Chief VA Audiologist. However, the certification made by the February 1999 VA Chief Audiologist included the audiologist's explicit judgment that the February 1999 word recognition scores were not judged to be an accurate reflection of the Veteran's word recognition ability.  

There is no medical evidence of record contrary to the opinion of the February 1999 VA examiner (i.e. evidence tending to indicate that the Veteran's February 1999 speech recognition scores could validly be applied to appropriately rate his hearing loss disability). Thus, there was no evidentiary basis for not applying Table VIa. 

The Board also notes that the valid speech recognition scores of record prior to February 1999 were at minimum 88 in the right ear (in March 1997) and 64 in the left ear (in June 1998), results that when combined with the pure tone threshold findings from February 1999 through use of Table VI, result in Level II hearing in the right ear and Level VII hearing in the left ear, leading to assignment of a 10 percent rating under Table VII. Thus, even if the lowest pre-February 1999 valid speech recognition scores from each ear had been selected as a substitute for the invalid February 1999 speech recognition scores and then combined with the February 1999 pure tone threshold averages, the result would have been identical to that arrived upon through appropriate application of Table VIa). This illustrates the clear incongruency of utilizing the February 1999 speech recognition scores for rating purposes, particularly in light of the February 1999 VA examiner's specific recommendation not to utilize these scores.  

The Veteran has asserted that the February 1999 rating decision assigning him a 90 percent rating represented an accurate evaluation of his level of hearing loss disability. He has also contended that he performed the February 1999 speech recognition testing to the best of his ability and thus, the February 1999 scores should be an accurate reflection of his speech recognition ability. Additionally, he has argued that his speech recognition ability needed to be considered in the rating assigned because he had actually been fired from a job due to an inability to understand his customers. 

To the extent the Veteran's assertion that the numerical speech recognition scores assigned in February 1999 accurately reflected the Veteran's level of hearing loss was of record at the time of the February 1999 rating decision, there is nothing in the record to indicate or even suggest that the Veteran medical expertise to render an opinion concerning the accuracy of the scores assigned. Consequently, his opinion in this matter may not be afforded any probative value - to a great extent, his asserted level of hearing loss has been investigated by competent medical examiner and found suspect. Jandreau, 492 F.3d 1372 (Fed. Cir 2007).  

It is noteworthy in this regard that although he alleges that he has performed to the best of his ability, especially that resulting in the February 1999 speech recognition testing of record at the time of the February 1999 rating decision, the record shows that he was previously noted to be exhibiting functional behavior (i.e. behavior not indicative of appropriate effort in relation to the testing) in September 1989 when his left ear speech recognition score and puretone threshold score were similarly found not reflective of his speech discrimination ability. Given this earlier finding, the similar finding in 1999, the clear discrepancy between the earlier valid speech recognition scores (including much higher findings in June 1998, only 8 months earlier), the lack of any medical explanation for the Veteran's speech recognition performance issues and the clear incentive for the Veteran to exaggerate his symptoms for pecuniary gain, the Board does not find credible his contention that he performed to the best of his ability during the February 1999 speech recognition testing. Consequently, to the extent this contention was of record at the time of the February 1999 rating decision, it may not be afforded any probative value.  
 
Regarding the Veteran's assertion that speech recognition scores needed to be factored in to the rating assigned, as noted above, VA has made extensive efforts to test the Veteran's speech recognition but was often unable to obtain valid results, including in February 1999. Thus, the only valid speech recognition results VA could have potentially applied were the pre-February 1999 ones, which as mentioned, would not have resulted in assignment of a higher rating

In sum, even if there was discretion available to VA as to whether to apply Table VI as opposed to Table VIa to rate the Veteran's hearing loss disability, there was simply no evidence of record at the time of the February 1999 adjudication to support the application of Table VI, rather than Table VIa, to the February 1999 VA audiological findings. In short, review of the record compels the conclusion, to which reasonable minds cannot differ, that assignment of an appropriate rating for the Veteran's hearing loss based on the results of the February 1999 VA examination could only be effectuated through application of Table VIa. Thus, the error in applying Table VI rather than Table VIa under 38 C.F.R. § 4.85(c) is clear and unmistakable and restoration of the 90 percent evaluation from March 1, 2003 forward must be denied. 38 C.F.R. § 3.105(a); Fugo, 6 Vet. App. 40, 43 (1993). 

After March 1, 2003
 (entitlement to a disability rating greater than 20 percent)

A September 2004 VA audiological opinion was provided, based on chart review. The medical examiner noted the inconsistencies in the Veteran's prior VA hearing evaluations. Based on the 2002 VA examiner's concern about the validity of those test results, the September 2004 audiologist opined that the 1999 pure tone thresholds should be used for rating purposes. The audiologist further opined that word recognition scores from 1999 and 2002 should not be used due to lack of reliability.

As noted above, the RO determined in a July 2005 rating decision that a 20 percent disability rating was appropriate for the Veteran's hearing loss, effective March 1, 2003.

During a July 2005 VA mental disorders examination, the Veteran reported that he had worked full-time for a furniture store for the past five (5) years. He was diagnosed with an anxiety disorder, not otherwise specified, and the examiner stated that the vulnerability to his symptoms was from an in-service injury to his hearing. Significantly as noted by a medical examiner, the examiner stated that the Veteran's primary goal was to receive a diagnosis that would result in an increase in his pension. Sensorineural hearing loss was noted as an Axis III diagnosis.

In December 2005, the Board denied the Veteran's claim of entitlement to an increased rating for his hearing loss disability. In the decision, the Board relied, in part, on the results of the VA audiological examinations conducted in February 1999, February 2002, and September 2004. The reliability of the results from each of these examinations has been questioned and, as noted above, the January 2007 Joint Motion for Remand noted that a June 1998 audiological examination "is judged to be the last reliable test for compensation and pension purposes for both pure tones and speech."

In September 2007, the Veteran's wife submitted a statement that his hearing ability has worsened over the years and that family members had to speak in a loud voice to him as well as repeat statements to ensure his understanding. The Veteran's daughter stated in a September 2007 letter that sometimes when she is speaking to him, he misunderstands what she is saying. Another daughter stated in another September 2007 letter that the family is disturbed by the volume used by the Veteran when watching television and that they must speak to him in very loud voices.

The Veteran's claims file was reviewed by a VA examiner in September 2007. The examiner noted the past audiological testing results and examined the Veteran. Pure tone thresholds for the right ear, in decibels, were: 80 at 1000 Hz, 75 at 2000 Hz, 85 at 3000 Hz, and 90 at 4000 Hz. The pure tone threshold average was 83. Pure tone thresholds for the left ear, in decibels, were: 80 at 1000 Hz, 100 at 2000  Hz, 105 at 3000 Hz, and 105 at 4000 Hz. The pure tone threshold average was 98. The examiner stated that the pure tone thresholds were considered unacceptable for rating purposes due to poor test-retest reliability. Word recognition scores, per the Maryland CNC test, were not reported as the examiner considered them unacceptable based on the pattern of responses. The examiner measured transient evoked otoacoustic emissions and observed that they were consistent with normal cochlear function around 1000 Hz in the right ear. The examiner stated that such results are typically associated with normal or near normal thresholds for that frequency region.

Although the 2007 examiner stated that the pure tone threshold results were not acceptable for rating purposes, the Board, for comparison purposes only, has applied those scores to Table VIa which shows that the Veteran had a Level VII impairment in his right ear and a Level X impairment in his left ear. Application of these scores, had they been accurate, to Table VII would result in a 60 percent disability rating.

In July 2008, the Veteran wrote to VA requesting that he be considered for extraschedular evaluation of his hearing loss. He stated that his hearing disability markedly interfered with his employment and that he was presently unemployed. 
Another VA examiner reviewed the Veteran's claims file in October 2008. The resulting report reflects thorough review of the claims file and consideration of the past testing results. The examiner stated that there was no known physical incapacity that would prevent the Veteran from successfully completing a hearing evaluation. The examiner noted that evidence of non-organic hearing loss was documented by four (4) different audiologists in addition to himself, over two (2) different VA audiology clinics. The examiner opined that further hearing tests could be conducted, but it was unlikely they would reveal adequate results.

In May 2009, the Veteran submitted a letter from a former employer stating that he was terminated from employment due to hearing difficulty. The letter was from the owner of a charter bus tour company and reflects that the Veteran was employed from March to June 2003, but was terminated due to difficulty understanding requests from passengers and the employer. In June 2009, the Veteran stated that he had not maintained employment due to his hearing loss and had lost his last job as a direct result of not being able to hear requests from passengers and instructions from his employer. The Veteran also informed VA that difficulty with speech discrimination testing can be due to linguistic, cultural, or comprehension issues, but he did not identify any particular reason for the variation in his own prior test results. He stated that the only examination results reflecting his true level of disability were the results supporting his 90 percent disability rating (the February 1999 VA examination results.)

In May 2010, the Veteran submitted a statement to VA that his hearing disability had caused him to lose two (2) jobs. He was seen by a VA Vocational Rehabilitation Consultant that same month and reported that he was currently working two (2) part-time jobs: furniture mover and bus driver for a tour company. The Veteran reported that he had been fired from two previous jobs due to the effects of his hearing disability. The Veteran informed the consultant that he was not sure if he would be able to retain his employment as a bus driver due to his hearing disability.

Another VA audiological examination was conducted in August 2010. The examination report reflects that the examiner reviewed the claims file and interviewed and examined the Veteran. The Veteran's pure tone thresholds for the right ear, in decibels, were: 45 at 1000 Hz, 50 at 2000 Hz, 80 at 3000 Hz, and 80 at 4000 Hz. The pure tone threshold average was 63.75. Pure tone thresholds for the left ear, in decibels, were: 55 at 1000 Hz, 70 at 2000 Hz, 80 at 3000 Hz, and 95 at 4000 Hz. The pure tone threshold average was 75. Speech recognition was 92 percent in the right ear and 88 percent in the left ear per the Maryland CNC test. In compliance with the Court's holding in Martinak v. Nicholson, 21 Vet. App. 447, 455-56  (2007), the examiner inquired into the functional effects of the Veteran's hearing loss. See Revised Disability Examination Worksheets, Fast Letter 07-10 (Department of Veterans Affairs Veterans Apr. 24, 2007); see also 38 C.F.R. § 4.10 (2010). The examiner stated that there were no significant effects on the Veteran's occupation or his daily activities. 

The August 2010 examination results show an average pure tone threshold of 63.75 for the right ear and 75 for the left ear with speech recognition scores of 92 on the right and 88 on the left. 38 C.F.R. § 4.85 Table VI, shows right ear hearing loss disability of Level II and left ear hearing loss disability of Level III. Application of these scores to Table VII results in a zero percent disability rating.

After the audiological examination, the claims file was provided to an otolaryngologist to review the examination findings and provide a medical opinion as to the severity of the Veteran's hearing loss disability. The otolaryngologist reviewed the claims file and interviewed the Veteran. The examination report reflects that the Veteran did "fairly well" in communicating with the examiner on a one-to-one basis in the small examining room. 

Based on review of the claims file, the examiner noted an impression of high frequency bilateral sensorineural hearing loss with repeatedly unreliable testing results. The examiner noted that the true level of the hearing loss could not be determined by review of the claims file and opined that it was not likely that the hearing loss demonstrated by the Veteran was due to any disease or injury. 

Significantly as it bears on the Veteran's purposeful or non-deliberate lack of credibility, the examiner noted evidence of malingering and functional overlay and stated that medical examination did not reveal any cause for the Veteran's apparent incapacity to complete a full hearing evaluation. The Veteran was noted to have heard more acutely than reflected by prior examination results during the oral history part of the otolaryngologist's examination. While the examiner stated that the Veteran was, at the time of his examination, pleasant and forthcoming, the examiner noted that it was likely the poor prior test results were consistent with malingering or other functional overlay.

The Veteran's wife submitted a July 2011 letter stating that the Veteran has a difficult time hearing and understanding words that are spoken to him. She stated that she has to speak in a loud voice and repeat words. The Veteran's daughter submitted a statement that she has to speak in a loud voice in order to be heard by her father and that she has observed him being unable to hear the telephone ringing. The Veteran's son wrote that he had to repeat statements to his father and speak in a loud voice; he noted that his father speaks in a very loud voice that some of his friends had mistaken as yelling.

The claims file reflects that prior to the results of the August 2010 VA examination, the last reliable pure tone threshold averages of record resulted from the February 1999 VA examination and warranted a 10 percent disability rating. Although the February 2002 VA examination report reflects pure tone thresholds and speech discrimination scores that were not acceptable for rating purposes, the RO applied the average pure tone thresholds alone to 38 C.F.R. § 4.87 Table VIa and the resulting levels of impairment to Table VII in order to award the Veteran a 20 percent disability rating. A September 2007 VA examination did not yield results acceptable for rating purposes and the August 2010 VA examination results reflect that a non-compensable rating is appropriate for the Veteran's bilateral hearing loss. Accordingly, the current 20 percent disability rating appropriately compensates him for his hearing loss and there is no basis for assigning a rating in excess of this amount from March 1, 2003.

The opinion of the August 2010 otolaryngologist reinforces the opinions of prior examiners that several prior test results were not acceptable for rating purposes through no fault of VA. Although the omission of test results from those evaluations results in long periods of time without acceptable hearing evaluation results for rating purposes, VA afforded the Veteran multiple hearing evaluations and the August 2010 medical opinion indicates that malingering or other functional overlay accounted for the un-ratable results obtained from these examinations. "The duty to assist in the development and adjudication of a claim is not a one way street." Wamhoff v. Brown, 8 Vet. App. 517, 522 (1996). There is no adequate medical evidence of record entitling the Veteran to a rating in excess of 20 percent for his hearing loss since March 1, 2003. As there is no basis for assigning an increased rating at any time since March 1, 2003, there is no basis for assigning a staged rating under Fenderson. 12 Vet. App. 119 (1999).  



ORDER

Entitlement to a higher initial rating for bilateral hearing loss disability - a compensable rating prior to March 26, 1997; a rating greater than 10 percent from March 26, 1997 to June 16, 1998; a compensable rating from June 17, 1998 to January 3, 1999; a rating greater than 90 percent from January 4, 1999 to February 28, 2003; and a rating greater than 20 percent since March 1, 2003 - is denied.

Reduction of the disability rating for service-connected bilateral hearing loss from 90 to 20 percent was proper.



____________________________________________
Vito A. Clementi 
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs