Citation Nr: 1317150	
Decision Date: 05/24/13    Archive Date: 05/31/13

DOCKET NO.  09-10 441	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Louis, Missouri


THE ISSUES

1.  Whether the reduction of the schedular disability rating for bilateral hearing loss from 70 percent to 40 percent effective on August 4, 2000, on the basis of clear and unmistakable error (CUE) in a December 2001 rating decision, was proper.

2.  Whether severance of a total disability rating based on individual unemployability due to service-connected disability (TDIU), on the basis of clear and unmistakable error (CUE) in an August 2002 rating decision, was proper.  


REPRESENTATION

Appellant represented by:	Missouri Veterans Commission


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

C. Bosely, Counsel


INTRODUCTION

The Veteran had active service from February 1978 to November 1984. 

This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2008 rating decision of the Department of Veteran's Affairs (VA) Regional Office (RO) in St. Louis, Missouri.  

The Veteran testified before the undersigned Acting Veterans Law Judge in a Board hearing at the RO in September 2009.  A transcript of the hearing has been associated with the claims file.  

Following the last RO adjudication of the case, the Veteran submitted additional evidence in support of his appeal.  Because he waived initial RO jurisdiction of this evidence in July 2012, the Board has accepted it for inclusion into the record on appeal.  See 38 C.F.R. §§ 20.800; 20.1304.

This matter was remanded by the Board in May 2009 and again in July 2011.  The case has now been returned to the Board for further appellate action.


FINDINGS OF FACT

1.  The RO issued a final rating action in August 2008, reducing the 70 percent schedular disability rating for bilateral hearing loss to 40 percent and discontinuing the TDIU based on a finding of clear and unmistakable error (CUE) in the December 2001 RO rating action, effective August 4, 2000.
2.  The RO reduced the Veteran's monthly monetary benefits effective from September 1, 2008.

3.  The reduced disability rating and the reduction in monthly monetary benefits were made effective before the last day of the month in which a 60-day period from the date of the August 27, 2008 notice to the Veteran of the final rating action expired.

4.  The appropriate effective date for the reduction is October 31, 2008.

5.  The termination of entitlement to TDIU was made without observation of applicable regulations.


CONCLUSIONS OF LAW

1.  The criteria for a restoration of a 70 percent disability rating for bilateral hearing loss to October 30, 2008, have been met.  38 U.S.C.A. §§ 5103, 5103A, 5107, 5109A, 5112 (West 2002); 38 C.F.R. § 3.105 (2012).

2.  The reduction in disability rating for bilateral hearing loss from 70 to 40 percent, effective October 31, 2008, was proper.  38 U.S.C.A. §§ 5103, 5103A, 5107, 5109A, 5112 (West 2002); 38 C.F.R. § 3.105 (2012).

3.  The discontinuance of the TDIU rating was not proper and is void ab initio.  38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.105, 3.343 (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

In the instant appeal, the Veteran maintains that the RO's reduction in his disability rating and severance of his TDIU was not proper.  As explained below, the Board agrees, in part.

When determining whether a reduction was proper, the provisions of 38 C.F.R. § 3.105(a) provide that previous determinations which are final and binding, including decisions of service connection and other issues, will be accepted as correct in the absence of clear and unmistakable error (CUE).  Where evidence establishes such error, the prior decision will be reversed or amended.  Id.  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 had been made on the date of the reversed decision.  Id.  Except as provided in paragraphs 38 C.F.R. § 3.105(d) and (e), where an award is reduced or discontinued because of administrative error or error in judgment, the provisions of §3.500(b)(2) will apply.  Id.  

Looking to the provisions of 38 C.F.R. § 3.105(e), as noted in 38 C.F.R. § 3.105(a), when a reduction in the evaluation of a service-connected disability is considered warranted 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 Veteran must be notified at his or her latest address of record of the contemplated action and furnished detailed reasons therefor.  Additionally, a veteran must be given notice that he has (1) 60 days to present additional evidence to show that compensation payments should be continued at the present level, and (2) 30 days to request a predetermination hearing.  38 C.F.R. § 3.105(e), (i).  

If additional evidence is not received within that period, final rating action will be taken and the award will be reduced or discontinued effective the last day of the month in which a 60-day period from the date of notice to a veteran of the final rating action expires.  Also, if a predetermination hearing is not requested or if a veteran failed without good cause to report for a scheduled predetermination hearing, the final action will be based solely upon the evidence of record.  If a predetermination hearing was conducted, the final action will be based on evidence and testimony adduced at the hearing as well as the other evidence of record, including any additional evidence obtained following the hearing pursuant to necessary development.  If a reduction is then found warranted, the effective date of such reduction shall be the last day of the month in which a 60-day period from the date of notice to the beneficiary of the final action expires.  38 C.F.R. § 3.105(e).

With respect to TDIU, 38 C.F.R. § 3.343(c) dictates that TDIU can only be terminated if there is clear and convincing evidence that the Veteran is employable.

The United States Court of Appeals for Veterans Claims (Court) has consistently held that when an RO reduces a Veteran's disability rating without following the applicable regulations, the reduction is void ab initio.  See Greyzck v. West, 12 Vet. App. 288, 292 (1999). 

The claims file shows that the RO granted service connection for the Veteran's hearing loss disability by a March 1985 rating decision, assigning a noncompensable disability rating effective from November 1984.  The RO then issued a rating decision in December 2001 assigning a 70 percent rating effective August 4, 2000, based on results of an August 4, 2000 VA audiological examination.  

More recently, the RO issued a rating decision in May 2008 proposing to reduce the 70 percent rating.  The RO explained that the 70 percent rating had been assigned in error based on the August 4, 2000 VA audiological testing.  The RO clarified that the August 2000 test had based the word recognition scores on a NU-6 test (Northwestern University Test No. 6) and not the Maryland CNC (consonant-vowel
nucleus-consonant) test, and only the Maryland CNC speech recognition scores are recognized as valid for evaluation purposes for compensation benefits.  The RO found that this error was solely administrative in nature.  (They informed the Veteran that he would not be charged for the resulting overpayment because the error was solely administrative in nature.).  With regard to his TDIU, the RO informed the Veteran that based on the proposed reduction of the evaluation for his bilateral hearing loss from 70 percent to 40 percent, he no longer met the schedular requirements for entitlement to TDIU and, therefore, they were concurrently proposing to discontinue entitlement to TDIU.

The RO then issued a final rating action in August 2008, reducing the evaluation of the Veteran's hearing loss disability, as proposed, from 70 percent to 40 percent.  The RO also discontinued the Veteran's TDIU rating, as proposed.  Both actions were made effective on August 4, 2000.  (The RO again informed the Veteran that he would not be charged for the resulting overpayment as the error was solely administrative in nature.)  The Veteran was sent notice of this action under an August 27, 2008 cover letter.  The cover letter further informed the Veteran that the reduced payments were to begin September 1, 2008.  

The Board observes that the RO's action is inconsistent with the provisions of 38 C.F.R. § 3.105.  As set forth in both 38 C.F.R. § 3.105(a) and 38 C.F.R. § 3.105(e), a reduction in disability rating must be made effective the last day of the month in which a 60-day period from the date of notice to a veteran of the final rating action expires.  Here, the RO reduced the Veteran's evaluation effective August 4, 2000, with reduced payments to begin September 1, 2008.  Both dates are less than 60 days from the last day of the month in which a 60-day period from the August 27, 2008 notice of the final rating action.  If the reduction is otherwise proper, however, the failure to select the proper effective date does not render the RO's decision void ab initio.  VAOPGCPREC 31-97 (Aug. 29, 1997).

The remaining question in determining the propriety of the reduction is whether the RO's finding of CUE with respect to the 70 percent disability rating assigned for bilateral hearing loss is proper.  If so, the RO's decision is only voidable and not void ab initio.  Id.  For the reasons explained below, the Board finds that assignment of the 70 percent disability rating was CUE.

CUE is a very specific and rare kind of "error."  It is the kind of error in 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 manifestly have been different but for the error.  Generally, the correct facts, as they were known at the time, were not before the Board, or the statutory and regulatory provisions extant at the time were incorrectly applied.  Even when the premise of error is accepted, if it is not absolutely clear that a different result would have ensued, the error complained of cannot be ipso facto clear and unmistakable.  Fugo v. Brown, 6 Vet. App. 40, 43-44 (1993).

For CUE to exist: (1) either the correct facts, as they were known at that time, were not before the adjudicator or the statutory or regulatory provisions extant at the time were incorrectly applied; (2) the outcome would have been manifestly different if the error had not been made; and (3) the error was based on the record and law that existed at the time of the prior adjudication in question.  Damrel v. Brown, 6 Vet. App. 242, 245 (1994) (quoting Russell v. Principi, 3 Vet. App. 310, 313-14 (1992)).  In other words, the error must be of a type that is outcome-determinative, and subsequently developed evidence may not be considered in determining whether an error existed in the prior decision.  See Porter v. Brown, 5 Vet. App. 233, 235-36 (1993); Glover v. West, 185 F.3d 1328 (Fed. Cir. 1999).

The Court has consistently stressed the rigorous nature of the concept of CUE.  "Clear and unmistakable error is an administrative failure to apply the correct statutory and regulatory provisions to the correct and relevant facts; it is not mere misinterpretation of facts."  Oppenheimer v. Derwinski, 1 Vet. App. 370, 372 (1991).  CUE consists of "errors that are undebatable, so that it can be said that reasonable minds could only conclude that the original decision was fatally flawed at the time it was made."  Russell v. Principi, 3 Vet. App. at 313.  "It must always be remembered that [clear and unmistakable error] is a very specific and rare kind of 'error.'"  Fugo v. Brown, 6 Vet. App. 40, 43 (1993).

Hence, a disagreement with how VA evaluated the facts is inadequate to raise the claim of clear and unmistakable error.  Luallen v. Brown, 8 Vet. App. 92, 95 (1995).  Moreover, a failure on the part of the RO to fulfill its statutory duty to assist a veteran with the development of facts pertinent to a claim does not constitute CUE.  See Caffrey v. Brown, 6 Vet. App. 377, 384 (1994).  

Here, the RO's assignment of a 70 percent disability rating for the Veteran's hearing loss was not based on the correct facts as they were known at that time.  Moreover, the outcome would have been manifestly different if the error had not been made.  

Hearing loss is rated under the criteria of 38 C.F.R. § 4.85, Diagnostic Code (DC) 6100.  An examination for hearing impairment for VA purposes must be conducted by a state-licensed audiologist and must include a controlled speech discrimination test (Maryland CNC) and a puretone audiometry test.  Examinations will be conducted without the use of hearing aids.  38 C.F.R. § 4.85(a).  

Evaluations of defective hearing are derived by a mechanical application of the rating schedule to the numeric designations assigned after audiometric evaluations are rendered.  See Lendenmann v. Principi, 3 Vet. App. 345 (1993).  Hearing impairment is determined by averaging the hearing impairment at each of the four designated frequencies (1000, 2000, 3000, and 4000 Hertz).  38 C.F.R. § 4.85.  This results in a Puretone Threshold Average for each ear.  Id.  The Puretone Threshold Average is charted, in conjunction with the Speech Discrimination Percentage for that ear, in Table VI of 38 C.F.R. § 4.85.  Id.  This results in a score, expressed as a Roman numeral, for each ear.  Id.  The Roman numeral scores for both ears are then charted in Table VII of 38 C.F.R. § 4.85, and the intersection of the scores provides the percentage of disability.  Id.  Effective June 10, 1999, exceptional patterns of hearing impairment, which cannot always be accurately assessed under the standards of 38 C.F.R. § 4.85, may be evaluated under the provisions of 38 C.F.R. § 4.86.  

Here a May 1992 hearing evaluation showed audiometry results as follows:  


HERTZ

1000
2000
3000
4000
AVG.
RIGHT
60
75
70
60

LEFT
75
100
100
85


Although speech recognition scores were provided, these results are not adequate for rating purposes they were not performed using the Maryland CNC standard.  

In January 1993, the Veteran underwent a VA examination, which shows audiometry test results as follows:  


HERTZ

1000
2000
3000
4000
AVG.
RIGHT
65
70
60
65
65
LEFT
65
90
90
85
83

Speech discrimination scores were 74 percent for the right ear and 38 percent for the left ear.  

In charting these January 1993 examination results, from Table VI of 38 CFR 4.85, a Roman Numeral X is derived for the left ear, and a Roman Numeral V is derived for the right ear.  A 40 percent evaluation is derived from Table VII of 38 CFR 4.85 by intersecting row V, the better ear, with column X, the poorer ear.  

Next, the Veteran underwent a second VA examination in August 2000, which shows audiometry test results as follows:  


HERTZ

1000
2000
3000
4000
AVG.
RIGHT
65
70
70
75

LEFT
75
100
110
105


The examination report lists word recognition scores as 54 percent right ear and 24 percent left ear.  The hearing evaluation report, by contrast, notes that the word recognition test used the "NU-6."

The Board again observes that the RO assigned a 70 percent disability rating based on these audiological test results.  However, as the RO later noted, in its May 2008 rating decision proposing the reduction, the August 2000 audiological testing used a "NU-6" test.  The Board takes judicial notice that "NU-6" refers to the Northwestern University Auditory Test No. 6.  See Essentials of Audiology, Stanley A. Gelfand, 249, 3rd edition (2009); see also Monzingo v. Shinseki, No. 10-922, 2012 WL 5869404, (November 21, 2012) (judicial notice may be taken "of facts of universal notoriety that are not subject to reasonable dispute.").  

In other words, the August 2000 audiological examination did not utilize the Maryland CNC test.  Consequently, it, as with the May 1992 examination, is not adequate for rating purposes.  

The Board further observes that the August 2000 audiological results may be evaluated under § 4.86, which became effective June 10, 1999.  Thus, the results may be charted in Table VIa of 38 CFR 4.85.  Accordingly, a Roman Numeral IX is derived for the left ear and a Roman Numeral VI is derived for the right ear.  This results in a 40 percent evaluation from Table VII of 38 CFR 4.85 by intersecting row VI, the better ear, with column IX, the poorer ear.  

Other evidence of record includes an April 2004 VA primary care note reflecting that the Veteran had "severe hearing loss," and that he had worn hearing aids in the past, but his last hearing aid broke when he stepped on it, and he had been unable to hear since then.  On physical examination he responded to questions appropriately.  

Also of record is a February 2006 report describing an interview with a Social Security Administration (SSA) employee.  The interviewer found that the Veteran had trouble hearing her, but he was able to do so without too much volume adjustment.  She observed that he did not have trouble hearing her as long as she only spoke when looking at him and noted that he was to get fitted for new hearing aids in March.  

Next, the record includes results of an April 2008 VA examination, which shows audiometry results as follows:


HERTZ

1000
2000
3000
4000
AVG.
RIGHT
60
70
70
75

LEFT
75
105+
105
105


The Maryland CNC speech recognition scores were 86 percent right ear and 18 percent left ear.  It was further noted that the Veteran had been retired since 2001. 

In charting these April 2008 VA examination results to Table VI of 38 CFR 4.85, a Roman Numeral XI is derived for the left ear and a Roman Numeral III is determined for the right ear.  A 20 percent evaluation is derived from Table VII of 38 CFR 4.85 by intersecting row III, the better ear, with column XI, the poorer ear.  In charting these April 2008 VA examination results to Table VIa under 38 CFR 4.85, Roman Numeral X is derived for the left ear and a Roman Numeral V is derived for the right ear based.  A 40 percent evaluation is derived from Table VII of 38 CFR 4.85 by intersecting row V, the better ear, with column X, the poorer ear.  

Also of record is a January 2009 VA primary care note reporting the Veteran's statements that he was attempting to get his disability increased to 70 percent for hearing loss because he would have all his bills paid on 70 percent without having to do anything else, whereas his mother had to pay some of the bills for the household and home they shared on 40 percent disability.  He further stated that he had no problems hearing with both hearing aids.  He reported that he previously worked as a nurse's aid in a nursing home, and he had no problems doing the job, and that he had worked in other capacities as well with no problems, although he did have hearing loss.  The VA physician also observed that the Veteran had only one hearing aid in at the time of the consultation and that the Veteran stated that he just did not bother to put on the other one.  

In light of this evidentiary record, the Board finds that the assignment of a 70 percent disability rating was CUE.  Mechanical application of the rating schedule shows that a 40 percent disability rating most nearly approximated the degree of the Veteran's hearing loss during the entire period of appellate review.  Therefore, with respect to the reduction in schedular disability rating from 70 to 40 percent for bilateral hearing loss, the only error is that the RO failed to assign the correct effective date for the reduction under the provisions of 38 C.F.R. § 3.105(e).  Again, a reduction in a disability rating, if otherwise supportable, is not rendered void ab initio by virtue of error in the assignment of the effective date for it; rather, it is rendered voidable.  See VAOPGCPREC 31-97 (Aug. 29, 1997).  As such, the Board finds the schedular disability rating reduction for bilateral hearing loss from 70 to 40 percent is proper as of October 31, 2008, but that the 70 percent schedular disability rating for bilateral hearing loss should be restored up to October 30, 2008.

With respect to the issue of entitlement to a TDIU, the Board finds that the RO failed to comply with the controlling regulations.  The regulations do not provide for the termination of a TDIU simply because a Veteran no longer meets the percentage requirements for that benefit.  

A TDIU may be assigned, where the schedular rating is less than total, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more, and that, if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more.  38 C.F.R. § 4.16(a).  However, VA policy is to provide a TDIU in all cases where service-connected disability renders a veteran unable to work, even where the percentage requirements are not met.  38 C.F.R. § 4.16(b).  Additionally, as noted above, TDIU can only be terminated if there is clear and convincing evidence that the Veteran is employable.  38 C.F.R. § 3.343(c).  

In this instance, the TDIU rating was terminated without any apparent consideration of the requirements of 38 C.F.R. § 3.343(c) or § 4.16(b).  Although a January 2008 RO rating action noted that the Veteran failed to complete and return a VA Employment Questionnaire, VA Form 21-4140, the May 2008 RO rating action noted that the Veteran completed the form and reported having not been employed in the last 12 months.  Additionally, the March 2009 Statement of the Case issued by the RO contains only one sentence addressing the Veteran's employability and states that "You no longer meet the schedular requirement for entitlement to individual employability and, on a factual basis, the assembled evidence fails to show that the level of your established service connected conditions prevent you from obtaining and retaining gainful employment."  This conclusory statement, without any indication of the "factual basis" used to draw the conclusion that the Veteran is employable, does not meet the standard of showing by "clearing and convincing evidence" that the Veteran is employable.  Hence the termination of the TDIU was void ab initio and is restored.

As a final matter, the Board observes that VA has a duty to provide a claimant notification of the information and evidence necessary to substantiate the claims submitted, the division of responsibilities in obtaining evidence, and assistance in developing evidence, pursuant to the Veterans Claims Assistance Act of 2000 (VCAA).  See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b).

Here, to the extent the Board finds that a reduction in disability rating was proper, VA's duties to notify and assist are not applicable where a prior, final decision is subject to CUE reversal.  See Livesay v. Principi, 15 Vet. App. 165, 178-79 (2001) (en banc); see also Hines v. Principi, 18 Vet. App. 227, 235 (2004).  

In any event, as discussed above, the Veteran was provided all applicable notice elements, as directed by 38 C.F.R. § 3.105(e), by the May 2008 proposed reduction notice.  Moreover, all potentially favorable evidence reasonably identified by the Veteran or the evidentiary record has been obtained, including the Veteran's VA Vocational Rehabilitation folder.  More importantly, the Board's determination above is ultimately favorable to the Veteran as it restores the TDIU (100 percent) rating effective during the entire period at issue.  Therefore, the Board finds that all notification and development action necessary to render a fair decision on the matter has been accomplished.  



ORDER

Reduction of the schedular disability rating for bilateral hearing loss from 70 to 40 percent as of August 2000 was not proper; restoration of a 70 percent disability rating is granted to October 30, 2008.

Reduction of the schedular disability rating for bilateral hearing loss from 70 to 40 percent as of October 31, 2008 was proper.

The termination of the TDIU was improper and restoration of the TDIU is granted as if the termination had never taken place.




____________________________________________
M.N. HYLAND
Acting Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs