Citation Nr: 1316700 Decision Date: 05/22/13 Archive Date: 05/31/13 DOCKET NO. 09-40 620 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Seattle, Washington THE ISSUES 1. Whether the rating reduction from 10 percent to noncompensable for bilateral hearing loss was proper. 2. Entitlement to a rating greater than 10 percent for bilateral hearing loss. ATTORNEY FOR THE BOARD Amanda Christensen, Associate Counsel INTRODUCTION The Veteran had active military service from February 1965 to February 1969. This appeal comes to the Board of Veterans' Appeals (Board) from an October 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Seattle, Washington. The Board has not only reviewed the Veteran's physical claims file but also the Veteran's file on the "Virtual VA" system to insure a total review of the evidence. FINDINGS OF FACT 1. In a September 2008 rating decision, the RO granted service connection for bilateral hearing loss and assigned a rating of 10 percent effective September 30, 2007. 2. In an October 2008 rating decision, the RO reduced the Veteran's disability rating for bilateral hearing loss from 10 percent to noncompensable effective October 9, 2008; however, the Veteran's overall combined disability rating remained unchanged as of that date. 3. The Veteran's bilateral hearing loss is manifested by no worse than Level III hearing impairment in the right ear and Level III hearing impairment in the left ear. CONCLUSIONS OF LAW 1. The reduction in disability rating for bilateral hearing loss from 10 percent to noncompensable, effective October 9, 2008, was proper. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.105, 3.344, 4.85, DC 6100 (2012). 2. The criteria for a compensable rating for bilateral hearing loss have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1, 4.2, 4.10, 4.85, 4.86, Diagnostic Code 6100 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran contends that his 10 percent rating for bilateral hearing loss should not have been reduced from 10 percent to noncompensable, and in fact, he is entitled to a 30 percent rating for his bilateral hearing loss. Congress has provided that a veteran's disability rating shall not be reduced unless an improvement in the disability is shown to have occurred. 38 U.S.C.A. § 1155. Reductions are governed by 38 C.F.R. § 3.105(e), which describes procedural hurdles that must be met prior to a rating reduction. The U.S. Court of Appeals for Veterans Claims (Court) has consistently held that, when a veteran's disability rating is reduced by a RO without following the applicable regulations, the reduction is void ab initio. See Greyzck v. West, 12 Vet. App. 288, 292 (1999). Generally, when reduction in the evaluation of a service-connected disability is contemplated and the lower evaluation would result in a reduction or discontinuance of compensation payments, a rating proposing the reduction or discontinuance will be prepared setting forth all material facts and reasons. The beneficiary must be notified at his or her latest address of record of the contemplated action and furnished detailed reasons therefore. The beneficiary must be given 60 days for the presentation of additional evidence to show that compensation payments should be continued at the present level. 38 C.F.R. § 3.105(e) (2012). In this case, the Board finds that the RO was not required to notify the Veteran of the rating reduction in accordance with 38 C.F.R. § 3.105(e) because the reduction did not result in a reduction or discontinuance of compensation payments currently being made. Simply stated, the Veteran's combined evaluation prior to the reduction was 60 percent, and that rate remained unchanged with the reduction of his bilateral hearing loss rating from 10 percent to noncompensable (the combined rating table takes into consideration the fact that several small/minnor 10 percent service connected disabilities may not have a cumulative effective warranting the next higher evaluation [in this case 70%]). The Veteran was notified by letter dated in October 2009 that his compensation payment would continue unchanged despite the reduction in his rating for bilateral hearing loss. Prior to reducing a veteran's disability rating, VA is required to comply with several regulations applicable to all rating-reduction cases, regardless of the rating level or the length of time that the rating has been in effect. See 38 C.F.R. §§ 4.1 , 4.2, 4.10, 4.13 (2011); see Brown v. Brown , 5 Vet. App. 413, 420 (1993). These provisions impose a clear requirement that VA rating reductions be based upon review of the entire history of a veteran's disability. See Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). Such review requires VA to ascertain, based upon review of the entire recorded history of the condition, whether the evidence reflects an actual change in the disability and whether the examination reports reflecting such change are based upon thorough examinations. Thus, in any rating-reduction case not only must it be determined that an improvement in a disability has actually occurred but also that that improvement actually reflects an improvement in the Veteran's ability to function under the ordinary conditions of life and work. See Faust v. West, 13 Vet. App. 342, 350 (2000). In general, when there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. See 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.102 (2012). However, the Court has specified a different burden of proof with respect to ratings reductions claims. Because the issue in this case is whether the RO was justified in reducing the Veteran's 10 percent rating for bilateral hearing loss, rather than whether the Veteran is entitled to "reinstatement" of the 10 percent rating, the Board is required to establish, by a preponderance of evidence and in compliance with 38 C.F.R. § 3.344(a), that a rating reduction was warranted. See Brown, 5 Vet. App. at 420; see also Kitchens v. Brown, 7 Vet. App. 320, 325 (1995). In the instant case, the Veteran was awarded a 10 percent rating for bilateral hearing loss in September 2008 after undergoing an August 2008 VA audiological examination. In October 2008, the RO reduced the Veteran's rating to noncompensable after results from a second VA examination, done a month-and-a-half after the first, showed notably better speech recognition scores and the testing did not meet the criteria for a compensable rating under 38 C.F.R. § 4.85, Diagnostic Code 6100. The severity of a hearing loss disability is determined by applying the criteria set forth at 38 C.F.R. § 4.85. Under these criteria, evaluations of bilateral hearing loss 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 audiometry tests in the frequencies of 1000, 2000, 3000 and 4000 Hertz. To evaluate the degree of disability from defective hearing, the rating schedule establishes eleven auditory acuity levels from level I for essentially normal acuity through level XI for profound deafness. 38 C.F.R. § 4.85. To evaluate an individual's level of disability, Table VI is used to assign a Roman numeral designation for hearing impairment based on a combination of the percent of speech discrimination and the pure tone threshold average. 38 C.F.R. § 4.85(b). Table VII is used to determine the percentage evaluation by combining the Roman numeral designations for hearing impairment for each ear. 38 C.F.R. § 4.85(e). Under 38 C.F.R. § 4.86, when the puretone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz ) is 55 decibels or more, the rating specialist will determine the Level designation for hearing impairment from either Table VI or Table VIa, whichever results in the higher numeral. 38 C.F.R. § 4.86(a). Further, when the average puretone threshold is 30 decibels at 1000 Hertz , and 70 decibels or more at 2000 Hertz, the rating specialist will determine the Level 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 Level. 38 C.F.R. § 4.86(b). As an initial matter, the Board finds that an exceptional pattern of hearing under 38 C.F.R. § 4.86 has not been shown and that regulation is inapplicable. At the Veteran's first VA examination in August 2008 the examiner diagnosed bilateral sensorineural hearing loss. Pure tone threshold levels, in decibels, were determined both on air conduction and bone conduction at the examination. Air conduction was noted to be a more accurate measure of hearing loss than bone conduction, however. The air conduction levels were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 20 25 35 70 70 LEFT 25 25 40 70 75 Speech audiometry revealed speech recognition ability of 76 percent in the right ear and 80 percent in the left ear. The Veteran underwent a second VA audiological examination in October 2008. The examiner diagnosed bilateral sensorineural hearing loss. Audiometric testing using air conduction revealed pure tone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 15 20 15 60 55 LEFT 15 20 25 60 55 Speech audiometry revealed speech recognition ability of 96 percent bilaterally. The Veteran was afforded another VA audiological examination in May 2009. The examiner diagnosed bilateral sensorineural hearing loss. Audiometric testing revealed pure tone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 20 25 30 75 75 LEFT 20 25 40 70 75 Speech audiometry revealed speech recognition ability of 94 percent in the right ear and 96 percent in the left ear. The examiner opined that the results are consistent with his prior testing showing "excellent speech discrimination scores at similar presentations levels and should be considered indicative of his speech discrimination when tested in a sound booth." The Veteran underwent another VA examination in December 2010. The examiner diagnosed bilateral sensorineural hearing loss. Audiometric testing revealed pure tone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 15 15 20 60 60 LEFT 5 15 30 65 70 Speech audiometry revealed speech recognition ability of 80 percent bilaterally. Evaluating the Veteran's scores on each of the four audiological examinations based on the tables in 38 C.F.R. § 4.85, reveals that only the Veteran's August 2008 testing meets the criteria for a 10 percent rating for hearing loss. Testing from October 2008, May 2009, and December 2010 all represent noncompensable hearing loss. The Veteran contended in a November 2008 statement that the RO forced the October 2008 examiner to conduct a new test to get different results than the September 2008 test that resulted in his compensable rating. While it is unclear from the Veteran's claims file why he was scheduled for two VA examinations only a month and a half apart, the second after a rating decision had already been issued, the evidence shows he had two records in the computer system, an error that was discovered and corrected after his second VA audiological examination. Subsequent to the October 2009 examination, the Veteran underwent an examination in May 2009 with a different contract examiner than the contract examiners who conducted the first two examinations and then had another examination in December 2010 with yet another examiner, this one at a VA medical center. The Board finds all of the examinations are full and complete. Each consisted of the examiner obtaining an accurate history from the Veteran and conducting the same diagnostic tests. The Board finds the three most recent examinations, taken over the course of two years and reflecting similar results, do not suggest a temporary or episodic improvement in the Veteran's hearing but rather are the most accurate representation of the Veteran's current hearing loss. The findings on the Veteran's audiometric studies in October 2008 and May 2009 correlate to a designation of level I hearing in the right ear and level I hearing in the left ear, using Table VI. Table VII of § 4.85 provides for a 0 percent (noncompensable) evaluation under Diagnostic Code 6100 when those levels of hearing are demonstrated. The findings at his December 2010 examination correlate to a designation of level III hearing in the right ear and level III hearing in the left ear, which also provides for a 0 percent evaluation. This does not suggest that the Veteran does not have hearing problems, simply that his current hearing is within a range that would not provide a basis for compensation at this time. The Board notes that in addition to dictating objective test results, examiners must fully describe the functional effects caused by a hearing disability in his or her final report. See Martinak v. Nicholson, 21 Vet. App. 447 (2007). In this case, the examiners noted that the Veteran reported difficulty hearing conversational speech. The Board appreciates the difficulties that the Veteran says he experiences because of his hearing loss. However, according to the three most recent audiological test results, compared to the rating criteria, his bilateral hearing loss is noncompensable. See Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). Thus, the Board finds the preponderance of the evidence supports the rating reduction in this case. Regrettably, for the reasons discussed above, the Board finds the preponderance of the evidence does not support an increased rating for bilateral hearing loss, including the 30 percent rating requested by the Veteran in his November 2008 statement. His contention is outweighed by the reports cited. The Board has also considered whether referral for consideration of an extraschedular rating is warranted, noting that if an exceptional case arises where ratings based on the statutory schedules are found to be inadequate, consideration of an "extra-schedular" evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities will be made. 38 C.F.R. § 3.321(b)(1). The Court has held that the determination of whether a claimant is entitled to an extraschedular rating under § 3.321(b) is a three-step inquiry, the responsibility for which may be shared among the RO, the Board, and the Under Secretary for Benefits or the Director, Compensation and Pension Service. Thun v. Peake, 22 Vet. App. 111 (2008). The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. This means that initially there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability. If the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is adequate, and no referral is required. If the criteria do not reasonably describe the claimant's disability level and symptomatology, a determination must be made whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms." 38 C.F.R. § 3.321(b)(1) (related factors include "marked interference with employment" and "frequent periods of hospitalization"). See id. However, in this case, the medical evidence fails to show anything unique or unusual about the Veteran's service connected bilateral hearing loss that would render the schedular criteria inadequate. The Veteran's symptoms, including difficulty hearing speech, are contemplated in the rating assigned as the rating criteria contemplate speech reception thresholds and ability to hear spoken words on Maryland CNC testing. As such, it would not be found that his disability met the "governing norms" of an extraschedular rating. Accordingly, referral for consideration of an extraschedular rating is not warranted. Moreover, even if it were argued that the schedular rating criteria were inadequate, the Board finds no reason to refer the case to the Compensation and Pension Service to consider whether an extra-schedular rating is warranted. In this case, there is no evidence of any hospitalization associated with the Veteran's hearing loss. In addition, the Board finds the record does not reflect that the Veteran's hearing loss markedly interferes with his ability to work. See 38 C.F.R. § 4.1 (indicating that generally, the degrees of disability specified in the Rating Schedule are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability). The manifestations of the Veteran's disability are considered by the schedular rating. Based on the foregoing, the Board finds the schedular evaluation is adequate, and referral is not required. 38 C.F.R. § 3.321; Thun v. Peake, 22 Vet. App. 111 (2008). As the preponderance of the evidence is against this claim, the benefit of the doubt doctrine does not apply, and the claim for a compensable disability rating for bilateral hearing loss must be denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER The reduction in the rating for bilateral hearing loss from 10 percent to noncompensable was proper. A higher compensable rating for bilateral hearing loss is denied. ____________________________________________ JOHN J. CROWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs