Citation Nr: 1317946	
Decision Date: 06/03/13    Archive Date: 06/11/13

DOCKET NO.  11-11 476	)	DATE
	)
	)

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


THE ISSUES

1.  Whether the reduction in the disability rating for bilateral hearing loss from 20 percent to noncompensable effective July 27, 2010, was proper.
 
2.  Entitlement to a compensable rating for bilateral hearing loss.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESSES AT HEARING ON APPEAL

The appellant and his spouse




ATTORNEY FOR THE BOARD

M. Carsten, Counsel


INTRODUCTION

The Veteran served on active duty from April 1955 to February 1957.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma.  

A travel board hearing was held before the undersigned Veterans Law Judge (VLJ) in April 2013.  A transcript of the proceeding is of record.

The Board notes that the matter of the reduction in the assigned disability rating for the Veteran's hearing loss does not necessarily include a claim for an increased rating.  See Dofflemeyer v. Derwinski, 2 Vet. App. 277, 279-280 (1992) (the issue on appeal is not whether the Veteran is entitled to an increase, but whether the reduction in rating was proper). In this case, however, the reduction actually stems from a VA examination conducted in connection with a claim for an increased evaluation.  Additionally, while the April 2011 Statement of the Case (SOC) continued the reduction to 0 percent disabling, it phrased the issue as "[e]valuation of bilateral hearing loss currently evaluated as 0 percent disabling" and provided the laws and regulations pertaining to a claim for increase.  The May 2012 Supplemental Statement of the Case (SSOC) also characterized the issue as an increased evaluation claim.  Throughout the appeal, the Veteran has repeatedly asserted entitlement to an increased evaluation.  Accordingly, the Board has phrased the issues as stated above.  See Percy v. Shinseki, 23 Vet. App. (2009) (by treating an issue as part of an appeal, VA waived any objections to the adequacy of the appeal with respect to that issue). 

The Board also notes that, in April 2012, the RO issued a rating decision addressing multiple issues, to include the evaluations assigned for his service-connected lumbar spine disability, neurologic disabilities of the bilateral lower extremities, tinnitus, bowel dysfunction, and erectile dysfunction, as well as entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU).  In March 2013, the RO received a statement from the Veteran indicating that he disagreed with the letter he was sent.  He reported that, when he walks, sits, stands or lies down his legs and back pain are connected.  The statement was accompanied by a cover sheet from his representative, which indicated that they were submitting a notice of disagreement.  The Veteran also submitted an April 2010 statement from Dr. J.A., which was previously of record.  Thereafter, in March 2013, the RO sent the Veteran a letter stating that they had received his disagreement, but that the last rating contained multiple issues and that they needed to know what specific issues he wanted addressed.  See 38 C.F.R. § 19.26(b) (2012).  He was advised that, if a response was not received within 60 days or the remainder of the appeal period, no further action would be taken on his correspondence.  38 C.F.R. § 19.26(c).  However, to date, the Veteran has not identified the specific issues he wished to appeal.  Accordingly, no further consideration is necessary at this time.

The Virtual VA eFolder has been reviewed.  

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

The issue of entitlement to a compensable rating for bilateral hearing loss is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC.  


FINDINGS OF FACT

1.  In an August 2010 decision, the RO reduced the rating for the Veteran's hearing loss from 20 percent disabling to noncompensable effective July 27, 2010.
2.  The 20 percent rating had been in effect since October 30, 2007, which was less than 5 years.  

3.  The RO was not required to notify the Veteran of the proposed rating reduction for his hearing loss disability in accordance with 38 C.F.R. § 3.105(e) because the action did not result in a reduction of compensation payments being made at that time. 

3.  The evidence at the time of the rating reduction demonstrated that the Veteran's hearing loss disability had improved with level III hearing bilaterally.  


CONCLUSION OF LAW

The reduction of the rating for bilateral hearing loss from 20 percent to noncompensable effective July 27, 2010, was proper.  38 U.S.C.A. §§ 1155, 5112, 5103, 5103A (West 2002 and Supp. 2012); 38 C.F.R. §§ 3.105(e), 3.159, 3.344, 4.85, Diagnostic Code 6100, 4.86 (2012). 


REASONS AND BASES FOR FINDINGS AND CONCLUSION

Veterans Claims Assistance Act of 2000 (VCAA)

Upon receipt of a substantially complete application for benefits, VA must notify the claimant of what information or evidence is needed in order to substantiate the claim, and it must assist the claimant by making reasonable efforts to get the evidence needed.  38 U.S.C.A. §§ 5103(a), 5103A; 38 C.F.R. § 3.159(b); see Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002).  

The notice required must be provided to the claimant before the initial unfavorable decision on a claim for VA benefits, and it must (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and, (3) inform the claimant about the information and evidence the claimant is expected to provide.  38 U.S.C.A. §§ 5103(a); 38 C.F.R. § 3.159(b)(1); Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004). 

Upon receipt of an application for a claim, 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating, or is necessary to substantiate, each of the five elements of the claim, including notice of what is required to establish service connection and that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded.  Dingess v. Nicholson, 19 Vet. App. 473 (2006). 

In June 2010, prior to the initial decision, VA notified the Veteran of the information and evidence needed to substantiate his claim, to include notice of what part of that evidence is to be provided by the claimant and what part VA will attempt to obtain.  This letter also provided notice of how disability ratings and effective dates are determined.  The Veteran was notified of applicable rating criteria in the April 2011 SOC.  See Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), vacated and remanded sub nom. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009).  

The claim was most recently readjudicated in the May 2012 SSOC.  Prickett v. Nicholson, 20 Vet. App. 370, 377-78 (2006) (VA cured failure to afford statutory notice to claimant prior to initial rating decision by issuing notification letter after decision and readjudicating the claim and notifying claimant of such readjudication in the statement of the case). 

Moreover, as will be discussed below, the regulations pertaining to the reduction of evaluations for compensation contain certain notification and due process requirements.  See 38 C.F.R. § 3.105(e), (i).  However, these regulations are not for application in this case.  

In addition, the duty to assist the Veteran has also been satisfied in this case.  The Veteran's service treatment records as well as all identified and available post-service medical records pertinent to the years after service are in the claims file and were reviewed by both the RO and the Board in connection with the Veteran's claim.  The Veteran has not identified any outstanding records that are available and relevant to the claim being decided herein.

In support of his appeal, the Veteran submitted a private audiogram dated in September 2010.  While pure tone thresholds are shown, there is no indication that any speech discrimination testing was conducted.  Under these circumstances, the Board does not find it necessary to clarify whether the Maryland CNC test was used, as there is no report of any type of speech discrimination testing being performed.  See Savage v. Shinseki, 24 Vet. App. 259 (2011). 

The Veteran was also provided VA examinations in July 2010 and September 2011 with subsequent addendum.  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 Board finds that the VA examinations obtained in this case are adequate, as they are predicated on a review of the Veteran's medical history as well as on a physical examination and fully address the rating criteria that are relevant to rating the disability in this case. 

The Board does observe that the July 2010 VA examiner did not review the claims file; however, he did review the Veteran's own reported history and perform a physical examination that addressed the rating criteria.  Indeed, the United States Court of Appeals for Veterans Claims (Court) has held that the relevant focus is not on whether a clinician had access to the claims file, but instead on whether the clinician was "informed of the relevant facts" in rendering a medical opinion. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008).

Moreover, during the course of the appeal, the Compensation and Pension (C&P) hearing examination worksheets were revised to include a discussion of the effect of the Veteran's hearing loss disability on occupational functioning and daily activities. See Revised Disability Examination Worksheets, Fast Letter 07-10 (Dep't of Veterans Affairs Veterans, Apr. 24, 2007); see also 38 C.F.R. § 4.10  (2012).  In Martinak v. Nicholson, 21 Vet. App. 447 (2007), the Court held that in addition to dictating objective test results, a VA audiologist must fully describe the functional effects caused by a hearing disability in his or her final report. Martinak, 21 Vet. App. at 455. 

In this case, the July 2010 VA examiner specifically addressed the effect of the Veteran's hearing loss on his occupational functioning and daily activities.  In this regard, he noted that the Veteran's hearing loss caused difficulty hearing and understanding conversations.

Moreover, in Martinak, the Court noted that even if an audiologist's description of the functional effects of the appellant's hearing disability was somehow defective, the appellant bears the burden of demonstrating any prejudice caused by a deficiency in the examination.  In this case, there have been no allegations of any prejudice caused by a deficiency in the examiner's description of the functional effects.

The Board does note that the Veteran essentially alleged at his April 2013 hearing that the VA examinations were inadequate and pointed out what he felt were discrepancies in the way the tests were conducted.  The Board acknowledges his argument, but notes that all testing must be conducted in accordance with certain instructions to be valid for VA disability evaluation purposes. 38 C.F.R. § 4.85(a).  On review, the testing was conducted by audiologists and included a pure tone audiometry testing and a controlled speech discrimination test (Maryland CNC).  There is no indication that the results are somehow flawed or inaccurate for rating purposes.  

The Board concludes that there is adequate medical evidence of record to make a determination in this case.  Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the issue on appeal has been met. 38 C.F.R. § 3.159(c)(4).


Review of the Virtual VA eFolder indicates that it contains a VA audiology examination dated in February 2012.  On review, this document is a February 2012 invoice that pertains to the September 2011 examination.  There is no indication that additional examinations were conducted that are not of record.  

The Veteran was also provided an opportunity to testify at a hearing before the undersigned Veterans Law Judge.  During that hearing, the undersigned Veterans Law Judge identified the issue appeal, clarified where the Veteran had received treatment and whether there were any outstanding records, and inquired about the progression of the severity of his disorder.  The hearing focused on the elements necessary to substantiate the claim and the Veteran, through his testimony and questioning by his representative, demonstrated his actual knowledge of the elements necessary to substantiate his claim.  As such, the Board finds that VA complied with the duties set forth in 38 C.F.R. 3.103(c)(2) and Bryant v. Shinseki, 23 Vet. App. 488, 492 (2010). 

The Veteran was provided the opportunity to present pertinent evidence and testimony.  There is no evidence of any VA error in notifying or assisting him that reasonably affects the fairness of this adjudication.  38 C.F.R. § 3.159(c).


Factual Background

In September 2006, the Veteran submitted a claim of entitlement to service connection for hearing loss.  

The Veteran underwent a VA audiology examination in December 2006 during which his puretone thresholds were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
20
30
40
85
95
LEFT
20
25
40
85
85

The Veteran's average puretone threshold was 63 decibels in the right ear and 59 decibels in the left ear.  Speech recognition scores using the Maryland CNC word list were 86 percent for the right ear and 72 percent for the left ear.  The examination request indicated that the claims folder was not sent.  

In December 2006, the RO granted entitlement to service connection for bilateral hearing loss and assigned a 10 percent evaluation effective from September 29, 2006.  

In October 2007, the Veteran submitted a claim for an increased evaluation for his service-connected bilateral hearing loss.  In connection with that claim, he was provided a VA audiology examination in December 2007 during which he presorted having difficulty hearing and understanding conversations.  His puretone thresholds were as follows:





HERTZ



500
1000
2000
3000
4000
RIGHT
30
35
50
85
95
LEFT
30
35
50
90
90

The Veteran's average puretone threshold was 66 decibels in the right ear and 66 decibels in the left ear.  Speech recognition scores using the Maryland CNC word list were 82 percent for the right ear and 62 percent for the left ear.  The examiner noted that amplification could improve hearing threshold levels while in use.  The examination request also indicates that the claims folder was not sent.  

In January 2008, the RO increased the evaluation for the Veteran's bilateral hearing loss to 20 percent effective from October 30, 2007.  

In June 2010, the Veteran submitted another claim for an increased evaluation.  He was provided a VA audiology examination in July 2010 at which time he again reported having difficulty hearing and understanding conversations.  His puretone thresholds were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
30
35
50
85
90
LEFT
35
30
50
80
90

The Veteran's average puretone threshold was 65 decibels in the right ear and 62.5 decibels in the left ear.  Speech recognition scores using the Maryland CNC word list were 84 percent for each ear.  The examination request noted that the claims folder was not sent.  

In August 2010, the RO reduced the evaluation for the Veteran's bilateral hearing loss from 20 percent to noncompensable effective from July 27, 2010, which was the date of the last VA examination.  The Veteran disagreed with the decision and subsequently perfected this appeal.  

In his September 2010 notice of disagreement, the Veteran argued that his hearing had not improved since the first examination provided in connection with his claim for service connection.  Due to the fact that his tinnitus remained constant, he felt that his disability rating should be increased.  At this juncture, the Board notes that the Veteran is separately service-connected for tinnitus, which has been assigned a 10 percent evaluation.  That issue is not currently before the Board.

In support of his claim, the Veteran submitted a private audiogram dated in September 2010.  The examiner noted mild sloping to profound hearing loss in both ears with noise notch.  Although the report includes puretone audiometry testing, there are no speech discrimination scores.  Rather, those sections are blank on the report.  Thus, the private audiogram report is considered inadequate for rating purposes.  See 38 C.F.R. § 4.85.  

The Veteran most recently underwent a VA examination to assess the severity of his hearing loss in September 2011.  The Veteran reported having difficulty hearing clearly, especially in noisy environments, and trouble following directions and distinguishing words in conversations. He noted that he had impaired communication with friends and family.   The Veteran also stated that hearing aids made his condition worse.  Cerumen was removed bilaterally prior to testing.  On the audiological examination, puretone thresholds were recorded as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
25
20
45
85
90
LEFT
15
25
45
75
90

The Veteran's average puretone threshold was 60 decibels in the right ear and 58.75 decibels in the left ear.  The examiner stated that the initial speech recognition score was 60 percent in the right ear and 96 percent in the left ear.  He also commented that the speech recognition score with the best performance was 60 percent in the right ear and 80 percent in the left ear.  His speech recognition was described as excellent on the right and good on the left.  The examiner further stated that the degree of hearing loss should severely impact his ability to interact with others because he is unaided with severe high frequency hearing loss.  However, he noted that the Veteran should be able to function well with hearing aids in most environments.  The examination request indicates that the claims folder was not available.  

Due to the inconsistencies in the reported findings regarding speech recognition testing, the RO requested clarification from the July 2011 VA examination.  In an addendum dated in September 2011, the examiner stated:

The best performance in the right ear is at 76dB and is 80% which is good.  The best performance in the left ear is at 65 dB and is 100% which is excellent.  Typos were made in the percentage correct.  

At the hearing, the Veteran and his spouse both testified that his hearing has worsened rather than improved.


Laws and Regulations

Where reduction in the evaluation of a service-connected disability is considered warranted and the lower evaluation would result in a reduction of current compensation payments, a rating proposing the reduction or discontinuance will be prepared setting forth all material facts and reasons.  38 C.F.R. § 3.105(e).  The beneficiary will be notified at his latest address of record of the contemplated action and furnished detailed reasons therefore, and will be given 60 days for the presentation of additional evidence to show that compensation should be continued at the present level.  Id.  

VA's General Counsel has held that 38 C.F.R. § 3.105(e) does not apply where there is no reduction in the amount of compensation payable.  It is only applicable where there is both a reduction in evaluation and a reduction or discontinuance of compensation payable.  Therefore, where the evaluation of a specific disability is reduced, but the amount of compensation is not reduced because of a simultaneous increase in the evaluation of one or more other disabilities, section 3.105(e) is not applicable.  See VAOPGCPREC 71-91 (Nov. 1991); Stelzel v. Mansfield, 508 F.3d 1345, 1347-49 (Fed.Cir.2007) (holding that provisions of § 3.105(e) do not apply when there is no change in the overall disability rating).  

A Veteran's disability rating may not be reduced unless the evidence demonstrates that an improvement in the disability has occurred.  See 38 U.S.C.A. § 1155.  

Additionally, in certain rating reduction cases, the recipients of VA benefits are to be afforded greater protections.  These additional protections apply in cases involving ratings that have continued for long periods of time at the same level (that is, five years or more); for ratings in effect for fewer than five years, reduction is warranted if the evidence shows improvement of the condition.  See 38 C.F.R. § 3.344 (2012).

Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (rating schedule), found in 38 C.F.R. Part 4.  Disability ratings are intended to compensate impairment in earning capacity due to a service-connected disorder.  38 U.S.C.A. § 1155.  Evaluation of a service-connected disorder requires a review of a veteran's entire medical history regarding that disorder.  38 C.F.R. §§ 4.1, 4.2 (2012); Schafrath v. Derwinski, 1 Vet. App. 589 (1991).  When a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the claimant.  38 C.F.R. § 4.3.  If there is a question as to which evaluation to apply to a veteran's disability, 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.
 
A rating for hearing loss is determined by a mechanical application of the rating schedule to the numeric designations assigned based on audiometric test results.  Lendenmann v. Prinicipi, 3 Vet. App. 345 (1992).  

Evaluations of bilateral defective hearing range from noncompensable to 100 percent.  To evaluate the degree of disability of service-connected hearing loss, the rating schedule establishes eleven auditory acuity levels ranging from numeric level I for essentially normal acuity, through numeric level XI for profound deafness.  See 38 C.F.R. § 4.85, Diagnostic Code 6100. 

Table VI (Numeric Designation of Hearing Impairment Based on Puretone Threshold Average and Speech Discrimination) is used to determine a Roman numeral designation for hearing impairment based on a combination of the percent of speech discrimination and the puretone threshold average.  38 C.F.R. § 4.85(b). 

Table VIa (Numeric Designation of Hearing Impairment Based Only on Puretone Threshold Average) is used to determine a Roman numeral designation for hearing impairment based only on puretone threshold average.  Table VIa is used when the examiner certifies that use of the speech discrimination test is not appropriate because of language difficulties, inconsistent speech discrimination scores, etc., or when indicated under the provisions of § 4.86.  38 C.F.R. § 4.85(c). 

When the puretone threshold at 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). 

When the puretone 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). 


Analysis

In this case, the initial 10 percent evaluation was assigned based on the December 2006 VA examination.  Applying the examination results to Table VI, the Veteran had level III hearing in the right ear and level V hearing in the left ear, which corresponds to a 10 percent evaluation.  An exceptional pattern of hearing impairment was not shown, as he did not have puretone thresholds of 55 decibels or more at each of the frequencies of 1,000, 2,000, 3,000 and 4,000 Hertz or a puretone threshold of 30 decibels or less at 1,000 Hertz and 70 decibels or more at 2,000 hertz.38 C.F.R. § 4.86(a) . 

The 20 percent evaluation was later assigned based on the December 2007 VA examination results.  Applying the examination results to Table VI, the Veteran had level IV hearing in the right ear and level VII hearing in the left ear, which corresponds to a 20 percent evaluation.  An exceptional pattern of hearing impairment was not shown during that examination.  

The Board notes that a rating decision proposing a reduction was not issued.  However, in this regard, the Veteran was in receipt of a combined 50 percent evaluation from October 30, 2007.  The August 2010 rating decision, which reduced the rating for hearing loss from 20 percent to noncompensable effective July 27, 2010, also increased the evaluation for lumbar spine disability to 40 percent effective from June 16, 2010.  That decision resulted in a combined evaluation of 60 percent from June 16, 2010, and a 50 percent evaluation from July 27, 2010.  Although there was a one-month period of increase in compensation from June 2010 to July 2010, this was accomplished in the same rating decision as the reduction, and as such, there was no decrease in compensation payments being made.  In other words, the combined evaluation was 50 percent before the reduction and 50 percent after the reduction.  Accordingly, the procedural protections of 38 C.F.R. § 3.105(e) are not applicable.  

In addition, the 20 percent evaluation had been in effect less than 5 years.  Thus, the additional procedural safeguards, as set forth in 38 C.F.R. § 3.344, are not for consideration.  

In general, the RO's reduction of a rating must have been supported by the evidence on file at the time of the reduction.  Pertinent post-reduction evidence favorable to restoring the rating, however, also must be considered.  See Dofflemeyer.  In addressing whether improvement is shown, the comparison point generally is the last examination on which the rating at issue was assigned or continued.  See Hohol v. Derwinski, 2 Vet. App. 169 (1992). 

The Veteran's 20 percent evaluation was reduced based on the findings of the July 2010 VA examination.  The Board acknowledges that the claims folder was not available for review at that time; however, the Board does not find that fact sufficient to render the examination inadequate such that any reduction would be invalid.  In this regard, the Board notes that the claims folder has not been available during any of the prior examinations.  Moreover, on review, the July 2010 VA examiner discussed the relevant history and complaints and included both audiometric and speech discrimination testing.  Thus, it is considered as full and complete as the previous examination.  Applying the July 2010 VA examination results to Table VI, the Veteran had level III hearing bilaterally, which corresponds to a noncompensable evaluation.  An exceptional pattern of hearing impairment was not shown either.  

Similarly, applying the results of the July 2011 VA examination to Table VI, the Veteran had level IV hearing in the right ear and level II hearing in the left ear, which also corresponds to a noncompensable evaluation.  An exceptional pattern of hearing impairment was once again not shown.  

Thus, the two most recent VA examinations in July 2010 and July 2011 support a finding that a noncompensable evaluation is warranted.

In considering whether improvement is demonstrated, the Board acknowledges the complaints that his hearing impairment has worsened.  The Veteran and his spouse are both competent to describe his perceived hearing difficulties.  See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a veteran is competent to report on that of which he or she has personal knowledge).  These reports, however, are not considered sufficient to outweigh the objective testing of record.  Indeed, the recent examinations show a marked improvement in speech discrimination on the left, and speech recognition performance has been described as "good" and "excellent".  

A mechanical application of the audiometric findings on VA examinations in July 2010 and September 2011 does not demonstrate entitlement to a compensable evaluation, much less the previously assigned 20 percent evaluation.  On review, the evidence at the time of the reduction as well as the subsequent VA examination shows that the Veteran's hearing loss disability has improved. 

The Veteran's complaints of difficulty hearing and recognizing words are clearly contemplated by the rating criteria, and consideration of restoration on an extraschedular basis is not warranted.  See Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009).

The rating was appropriately reduced effective as of July 27, 2010, which was the date of VA examination, based on facts found.  See 38 U.S.C.A. § 5112(a) (West 2002); 38 C.F.R. § 3.500 (2012); see also VAOPGCPREC 71-91 (1991) (providing that section 5112 does not provide a 60 day grace period where there is only a reduction in evaluation with no corresponding reduction in compensation). 

The preponderance of the evidence is against the claim, and the doctrine of reasonable doubt is not for application.  See 38 C.F.R. § 3.102 (2012).
ORDER

The reduction of the rating for bilateral hearing loss from 20 percent to noncompensable effective July 27, 2010 was proper, the appeal as to this issue is denied. 


REMAND

As discussed above, the Board considers the issue of entitlement to a compensable rating for bilateral hearing loss as part of this appeal.

At the April 2013 hearing, the Veteran and his spouse both testified that his hearing loss has worsened since his last VA examination.  VA's General Counsel has indicated that when a claimant asserts that the severity of a disability has increased since the most recent rating examination, an additional examination is appropriate. VAOPGCPREC 11-95 (April 7, 1995); see also Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994).  Therefore, the Board finds that an additional VA examination is necessary for the purpose of ascertaining the current severity and manifestations of the Veteran's service-connected bilateral hearing loss.

Accordingly, the case is REMANDED for the following action:

(Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2011).  Expedited handling is requested.)

1.  The Veteran should be afforded a VA examination to ascertain the severity and manifestations of his bilateral hearing loss.  Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed, including the Maryland CNC test and a puretone audiometry test.  The examiner is requested to review all pertinent records associated with the claims file, including the Veteran's service treatment records, post-service medical records, and assertions. 

The examiner should comment on the severity of the Veteran's service-connected hearing loss and discuss the effect of the disability on his occupational functioning and daily activities. 

A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board.  because it is important "that each disability be viewed in relation to its history [,]" 38 C.F.R. § 4.1, copies of all pertinent records in the appellant's claims file, or in the alternative, the claims file, must be made available to the examiner for review.

2.  After the development requested has been completed, the AMC/RO should review the examination report to ensure that it is in compliance with the directives of this REMAND.  If the report is deficient in any manner, the AMC/RO should implement corrective procedures.

3.  Upon completion of the above requested development and any additional development deemed appropriate, the AMC/RO should readjudicate the issue of entitlement to a compensable evaluation for bilateral hearing loss.  All applicable laws and regulations should be addressed.  If the benefit sought on appeal remains denied, the appellant and his representative should be provided with a supplemental statement of the case.  An appropriate period of time should be allowed for response. 

The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

This claim must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012).



______________________________________________
JESSICA J. WILLS
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs