Citation Nr: 1318047 Decision Date: 06/03/13 Archive Date: 06/11/13 DOCKET NO. 12-21 083 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUE Propriety of reduction of assigned rating for service-connected hearing loss from 50 to 30 percent, effective February 1, 2012. REPRESENTATION Appellant represented by: South Carolina Office of Veterans Affairs ATTORNEY FOR THE BOARD John Kitlas, Counsel INTRODUCTION The Veteran served on active duty from September 1953 to September 1956. This matter is before the Board of Veterans' Appeals (Board) on appeal from rating decisions promulgated in November 2011 by the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. By a May 2011 rating decision, the RO proposed to reduce the assigned rating for the Veteran's service-connected hearing loss from 50 to 30 percent. The subsequent November 2011 rating decision effectuated this action effective February 1, 2012. 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). This case was previously before the Board in February 2013, at which time it was remanded for further development. FINDINGS OF FACT 1. The RO complied with the procedural requirements in reducing the assigned rating for the Veteran's service-connected hearing loss from 50 to 30 percent. 2. Service connection for bilateral hearing loss was established by a May 2008 rating decision. An initial 40 percent evaluation was assigned, effective from the August 15, 2006 date of claim. 3. In a December 2009 rating decision, the RO increased the evaluation for hearing loss to 50 percent, effective from the October 9, 2009 date of claim. 4. VA audio evaluations conducted in October 2010 and May 2012 reflects the Veteran has Level VI hearing for both ears. CONCLUSION OF LAW 1. The reduction of an evaluation from 50 percent for bilateral hearing loss, effective February 1, 2012, was proper. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.105, 3.344, 4.85, 4.86, Diagnostic Code 6100 (2012). 2. The criteria for restoration of an evaluation of 40 percent for the Veteran's service-connected bilateral hearing loss effective February 1, 2012, are met. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.105, 3.344, 4.85, 4.86, Diagnostic Code 6100 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board notes at the outset that, in accord with the Veterans Claims Assistance Act of 2000 (VCAA), VA has an obligation to notify claimants what information or evidence is needed in order to substantiate a claim, as well as a duty to assist claimants by making reasonable efforts to get the evidence needed. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A and 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012); see also Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). It is noted, however, that this appeal stems from disagreement with a 38 C.F.R. § 3.105(e) reduction rather than a denial of a claim or application for benefits. The regulations pertaining to the reduction of evaluations for compensation contain their own notification and due process requirements, which will be discussed in greater detail below. See 38 C.F.R. § 3.105(e), (i). For this reason, the Board concludes that the VCAA does not apply to the claim decided herein. Even so, the Veteran was sent correspondence in October 2010 which, in pertinent part, informed him of what information and evidence he must submit, what information and evidence will be obtained by VA, as well as the general information used by VA to determined disability rating(s) and effective date(s). In any event, the Veteran has not demonstrated any prejudice with regard to the content or timing of any notice. See Shinseki v. Sanders, 129 S.Ct.1696 (2009) (Reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination). Further, the Veteran has had the opportunity to present evidence and argument in support of his case, and underwent VA audio examinations in October 2010 and May 2012 which appear to be accord with the requirements of 38 C.F.R. § 4.85(a). Although the Veteran criticized the adequacy of the October 2010 VA examination, the Board observes that its findings are consistent with that of the subsequent May 2012 VA examination. Thus, it appears his criticism goes to the fact the findings indicated his hearing loss warranted a lower disability rating. No other purported inaccuracies or prejudice have been demonstrated with respect to these examinations, and for the reasons detailed below the Board finds that the examination findings support the reduction in this case. Accordingly, the Board finds that these examinations are adequate for resolution of this case. Therefore, even if the VCAA were applicable to this case, the duty to notify and assist requirements have been satisfied. The Board also notes that actions requested in the prior remand have been undertaken. This case was previously before the Board in February 2013, at which time it was remanded for further development to include requesting private treatment records from Charles Haynes, M.Aud., CCC-A, dating since 2007; and for consideration of 38 C.F.R. § 3.344 in this case. The record reflects that correspondence was sent to the Veteran later in February 2013 requesting that he provide a release for records from Mr. Haynes, but no response to this request is of record. Consequently, the Board finds that this development was completed to the extent permitted by the cooperation of the Veteran. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). In addition, a Supplemental Statement of the Case (SSOC) was promulgated to the Veteran in April 2013 which did include the provisions of 38 C.F.R. § 3.344 and consideration thereof. All other development directed by the Board's remand appears to have been substantially completed. Accordingly, the Board finds that there has been substantial compliance with the prior remand instructions and no further action is necessary. See D'Aries v. Peake, 22 Vet. App. 97 (2008) (holding that only substantial, and not strict, compliance with the terms of a Board remand is required pursuant to Stegall v. West, 11 Vet. App. 268 (1998)). 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. First there must be a rating action proposing the reduction, and giving the veteran 60 days to submit additional evidence and request a predetermination hearing. If a hearing is not requested, and reduction is considered to be still warranted, a rating action will be taken to effectuate the reduction. 38 C.F.R. § 3.105(e), (i)(2). 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). In this case, the RO followed proper procedure in reducing the assigned rating for the Veteran's service-connected hearing loss. He underwent a VA audio examination in October 2010, and the subsequent May 2011 rating decision proposed to reduce the assigned rating. The notification letter for this rating decision informed him that he had 60 days in which to submit evidence, and of his right to request a predetermination hearing. He submitted additional evidence and indicated his disagreement with the proposed rating, but did not request a predetermination hearing. Thereafter, the proposed reduction was effectuated by the November 2011 rating decision, effective from February 1, 2012, which is consistent with the requirement that 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. Inasmuch as the RO followed proper procedure, the Veteran is not entitled to the benefit sought on appeal on that basis. Therefore, the Board must now address whether the competent evidence warranted a reduction in the assigned rating. In considering the propriety of a reduction, the Board will consider the evidence of record available to the RO at the time the reduction was effectuated, although post-reduction medical evidence may be considered for the purpose of determining whether the condition has demonstrated actual improvement. Cf. Dofflemyer v. Derwinski, 2 Vet. App. 277, 281-82 (1992). Care must be taken, however, to ensure that a change in an examiner's evaluation reflects an actual change in the veteran's condition, and not merely a difference in the thoroughness of the examination or in descriptive terms, when viewed in relation to the prior disability history. In addition, it must be determined that an improvement in a disability has actually occurred, and that such improvement actually reflects an improvement in the veteran's ability to function under the ordinary conditions of life and work. See 38 C.F.R. §§ 4.1, 4.2, 4.13; see also Brown v. Brown, 5 Vet. App. 413, 420-22 (1993); Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). Pursuant to 38 C.F.R. § 3.344(a), (c), if a rating has been in effect for more than 5 years, then rating agencies will handle cases of changes of medical findings or diagnosis so as to produce the greatest degree of stability of disability evaluations consistent with the laws and VA regulations governing disability compensation and pension. 38 C.F.R. § 3.344(a), (c). In such cases, it is essential that the entire record of examination and the medical-industrial history be reviewed to ascertain whether the recent examination is full and complete, including all special examinations indicated as a result of general examination and the entire case history. Id. Examinations which are less thorough than those on which payments were originally based will not be used as a basis for reduction. Ratings for diseases subject to temporary or episodic improvement, such as epilepsy, asthma, ulcers, and many skin diseases, will not be reduced on the basis of any one examination, except in those instances where all of the evidence of record clearly warrants the conclusion that sustained improvement has been demonstrated. Moreover, where material improvement in the physical or mental condition is clearly reflected, the rating agency will consider whether the evidence makes it reasonably certain that the improvement will be maintained under the ordinary conditions of life. 38 C.F.R. § 3.344(a), (c). The foregoing provisions apply to ratings that have continued for long periods of time at the same level (5 years or more). They do not apply to disabilities that have not become stabilized and are likely to improve. Reexaminations disclosing improvement, physical or mental, in these disabilities will warrant reduction in rating. 38 C.F.R. § 3.344(c). The assignment of disability ratings for hearing impairment are derived by a mechanical, i.e., nondiscretionary application of the rating schedule to the numeric designations based on the examination results. See Lendenmann v. Principi, 3 Vet. App. 345 (1992). Evaluations of bilateral hearing loss range from noncompensable (i.e., 0 percent) to 100 percent based on organic impairment of hearing acuity, as measured by a controlled speech discrimination test (Maryland CNC) and the average hearing threshold, as measured by puretone audiometric tests at the frequencies of 1,000, 2,000, 3,000 and 4,000 Hertz. The rating schedule establishes 11 auditory acuity levels designated from Level I, for essentially normal hearing acuity, through Level XI for profound deafness. VA regulations also provide that, in cases of exceptional hearing loss, when the puretone thresholds at each of the four specified frequencies (1,000, 2,000, 3,000 and 4,000 Hertz ) is 55 decibels or more, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or VIa, whichever results in the higher numeral. Each ear will be considered separately. 38 C.F.R. § 4.86(a). The provisions of 38 C.F.R. § 4.86(b) further provide that, when the puretone threshold is 30 decibels or less at 1,000 Hertz, and 70 decibels or more at 2,000 Hertz, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or VIa, whichever results in the higher numeral. That numeral will then be elevated to the next higher Roman numeral. Each ear will be considered separately. The Board has reviewed all the evidence in the record. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the appellant or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Historically, service connection for bilateral hearing loss was established by a May 2008 rating decision. A September 2007 VA audiological examination showed average puretone thresholds of 71 decibels in the right ear and 73 decibels in the left ear, with speech recognition scores of 60 percent in the right ear and 56 percent in the left ear. Such findings correspond with Level VII and Level VIII hearing loss in the right and left ears, respectively. See 38 C.F.R. §§ 4.85 and 4.86. Based on these findings, the RO assigned 40 percent evaluation, effective from the August 15, 2006 date of claim. A November 2009 VA examination yielded average puretone thresholds of 71 decibels in the left ear and 69 decibels in the right ear, with speech recognition scores of 60 percent in the right ear and 40 percent in the left ear. In a December 2009 rating decision, the RO increased the evaluation for hearing loss to 50 percent, effective the October 9, 2009 date of claim. An October 2010 VA examination yielded average puretone thresholds of 71 decibels in the left ear and 70 decibels in the right ear, with speech recognition scores of 74 percent in the left ear and 76 percent in the right ear. These findings show Level VI hearing for both ears. As these findings support only a 30 percent evaluation pursuant to 38 C.F.R. §§ 4.85 and 4.86, the RO proposed to reduce the evaluation for hearing loss from 50 percent to 30 percent in a May 2011 rating decision. A May 2012 VA examination yielded average puretone thresholds of 71 decibels in the right ear and 75 decibels in the left ear, with speech recognition scores of 74 percent in the right ear and 68 percent in the left ear. Once again, these findings show Level VI hearing for both ears. In short, these findings also support only a 30 percent evaluation pursuant to 38 C.F.R. §§ 4.85 and 4.86. In support of his appeal, the Veteran has submitted a letter from Mr. Haynes, a private audiologist, noting that he has seen the Veteran many times since 2001, and that he most recently saw the Veteran on January 5, 2012. Mr. Haynes stated, in pertinent part, that the Veteran's hearing loss on January 5, 2012, was as bad as it has been; and that he saw no improvement over time in the Veteran's hearing, but just the opposite. However, this letter did not include an accompanying audiogram, nor any audiological findings to support the clinician's statement that the Veteran's hearing loss has not improved over time. While the record includes some audiogram graphs from Mr. Haynes dating from 2001 to 2007, no further treatment records from this provider have been submitted. As noted above, the Veteran did not provide the requested release to obtain any outstanding treatment records from Mr. Haynes dating from 2007. As such, there is no evidence suggesting the Veteran's hearing was more severe than Level VI for either ear, and there is no competent medical evidence which calls into question the accuracy of the October 2010 and May 2012 VA audio examinations. Indeed, "[t]he duty to assist is not always a one-way street. If a veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence." Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). Thus, objective evidence to supported his contention that the reduction should not be made could not be considered. The fact that the results of two separate audio examinations, conducted approximately 2 years apart, both correspond to a 30 percent evaluation, indicates that this is a consistent level of functional impairment resulting from his hearing loss, and that his disability no longer rises to a level consistent with a 50 percent disability rating. The above determination is based upon consideration of applicable rating provisions. The Board is cognizant that in Martinak v. Nicholson, 21 Vet. App. 447, 455-56 (2007), the United States Court of Appeals for Veterans Claims (Court) noted that VA had revised its hearing examination worksheets to include the effect of a 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 Apr. 24, 2007); see also 38 C.F.R. § 4.10 (2012). The Court also noted, however, that, even if an audiologist's description of the functional effects of the Veteran's hearing loss disability was somehow defective, the Veteran bears the burden of demonstrating any prejudice caused by a deficiency in the examination. In this case, the Board observes that the October 2010 VA examination did not explicitly provide an opinion as the effect of the Veteran's hearing loss disability on occupational functioning and daily activities. However, the Veteran has not provided any specific contentions as to how this defect may prejudice this case. Further, the same examiner conducted the May 2012 VA examination, and did include such an opinion at that time to include the Veteran having difficulty understanding others especially when he is not within close proximity and able to see the person speaking. Nothing in this opinion, or the other evidence of record, indicates that a rating in excess of 30 percent is warranted. In pertinent part, the Board observes the Court indicated in Martinak that the purpose of such an opinion is to address whether referral is warranted for an extraschedular rating under 38 C.F.R. § 3.321(b)(1). Here, the record does not reflect the effects of the Veteran's hearing loss take his case outside the norm as to warrant the assignment of any higher evaluation on an extra-schedular basis. The symptoms of this disability have been accurately reflected by the schedular criteria, and without sufficient evidence reflecting that the Veteran's disability picture is not contemplated by the rating schedule, referral for a determination of whether the Veteran's disability picture requires the assignment of an extra-schedular rating is not warranted. See Thun v. Peake, 22 Vet. App. 111, 115-16 (2008). In view of the foregoing, the Board finds that the evidence of record does support a reduction of the assigned rating for the Veteran's service-connected hearing loss to less than 50 percent. However, the Board also notes that while the 50 percent evaluation was not in effect for more than 5 years before being reduced, the Veteran had, in fact, been in receipt of at least a 40 percent evaluation since August 15, 2006, a period of more than 5 years at the time of the reduction. Thus, the reduction to an evaluation lower than 40 percent triggers the provisions of 38 C.F.R. § 3.344. That regulation provides that only evidence of sustained material improvement under the ordinary conditions of life, as shown by full and complete examinations, can justify a reduction. As detailed above, the Board has already determined that the October 2010 and May 2012 VA examinations are adequate for resolution of this case. In short, they are full and complete examinations. Even though the findings of these examination support only a 30 percent evaluation pursuant to 38 C.F.R. §§ 4.85 and 4.86, unlike the 50 percent rating noted above, the 40 percent rating assigned in August 2006 had been in effect for a period in excess of five years at the time of the reduction, thereby trigging the requirements of 38 C.F.R. § 3.344. In this case, the Veteran's speech recognition scores on the October 2010 VA examination clearly reveal improvement from the September 2007 and November 2009 VA examinations. Additionally, improvement in the average puretone threshold in the left ear was noted on the November 2009 and October 2010 VA examinations. However, as of the May 2012 VA examination, the average puretone threshold in this left ear actually worsened slightly from the September 2007 VA examination. Thus, while the functional impact of his hearing loss has clearly improved and warrants only a 30 percent evaluation, to support a reduction below 40 percent, 38 C.F.R. § 3.344 dictates that such improvement must be sustained the ordinary conditions of life. As there has been slight worsening in the left ear average puretone threshold shown on the 2012 VA examination, notwithstanding the fact that the minimal worsening has no effect on the functional impairment, the Board cannot conclude, after resolving all doubt in the Veteran's favor and considering the provisions of section 3.344, that those findings support a reduction below the 40 percent that has been in effect for more over five years. Accordingly, the Board finds that the Veteran is entitled to restoration of the 40 percent rating effective February 1, 2012. In summary, the Board finds that the evidence does support a reduction of the 50 percent rating for the Veteran's hearing loss which had been in effect for less than 5 years. As such, the provisions of 38 C.F.R. § 3.344 do not apply. The evidence shows clear improvement in the Veteran's speech recognition scores between the November 2009 VA examination and the October 2010 examination, resulting in improved functioning such that his hearing loss disability supported only a 30 percent disability rating pursuant to 38 C.F.R. §§ 4.85, 4.86. Moreover, the May 2012 VA examination also clearly supports a finding that improvement in overall functioning continued. However, for the reasons set forth above, the Board finds that restoration to a 40 percent rating, effective February 1, 2012, is warranted. ORDER Restoration of an evaluation of 40 percent, but no higher, for the Veteran's service-connected bilateral hearing loss effective February 1, 2012, is granted, subject to the law and regulations governing the payment of monetary benefits. ____________________________________________ K. A. BANFIELD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs