Citation Nr: 1318101	
Decision Date: 06/04/13    Archive Date: 06/11/13

DOCKET NO.  12-07 696	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Paul, Minnesota


THE ISSUES

1.  Entitlement to restoration of a 20 percent evaluation for bilateral hearing loss.

2.  Entitlement to an increased rating for bilateral hearing loss.


REPRESENTATION

Appellant represented by:	Veterans of Foreign Wars of the United States


WITNESSES AT HEARING ON APPEAL

The Veteran and his friend



ATTORNEY FOR THE BOARD

M. Peters, Associate Counsel


INTRODUCTION

The Veteran had active duty service from December 1942 to January 1946.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO), which finalized the reduction of the Veteran's bilateral hearing loss from 20 percent to 10 percent, effective May 1, 2012.  The Veteran timely appealed that decision.

The Veteran and his friend testified at a Board hearing before the undersigned Veterans Law Judge in May 2013; a transcript of that hearing is associated with the claims file.

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 an increased evaluation 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.


FINDING OF FACT

At the time of the reduction in the assigned disability rating from 20 to 10 percent effective from May 1, 2012, a clear preponderance of the competent evidence demonstrated that an improvement in the severity of the Veteran's service-connected bilateral hearing loss had occurred.  

CONCLUSION OF LAW

The reduction in the rating assigned for bilateral hearing loss from 20 to 10 percent effective from May 1, 2012, was proper.  38 U.S.C.A. § 1155 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.105(e), 4.86, Diagnostic Code 6100 (2012).  


REASONS AND BASES FOR FINDING AND CONCLUSION

Duty to Notify and Assist

The Veterans Claims Assistance Act of 2000 (VCAA), codified in part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2011), and implemented at 38 C.F.R. § 3.159 (2011), amended VA's duties to notify and assist a claimant in developing the information and evidence necessary to substantiate a claim.  Under 38 U.S.C.A. § 5103, VA must notify the claimant of any information or evidence not of record that is necessary to substantiate the claim, as well as what parts of that information or evidence VA will seek to provide, and what parts VA expects the claimant to provide.  38 C.F.R. § 3.159(b). 

Inasmuch as this case involves a rating reduction, there are specific notice requirements, found in 38 C.F.R. § 3.105(e)-(i), that are applicable to reductions in ratings.  38 C.F.R. § 3.105(e) sets forth procedural requirements for reductions in disability compensation ratings.  When a reduction is anticipated, the beneficiary must be notified of the proposed reduction, with notice of the reasons for the proposed reduction.  Further, the beneficiary must be allowed a period of at least 60 days to submit additional evidence to show that the rating should not be reduced. After the allotted period, if no additional evidence has been submitted, final rating action will be taken and the rating will be reduced or discontinued effective the last day of the month in which a 60-day period from the date of notice to the beneficiary of the final rating expires.  38 C.F.R. § 3.105(e). 

The RO complied with the procedures required under 38 C.F.R. § 3.105(e) for reducing the Veteran's disability rating by notifying him of his rights and giving him an opportunity for a hearing and time to respond in its September 2011 letter.  

Rating Reduction

Where a disability rating has been continued for at least 5 years at the same level, under 38 C.F.R. § 3.344, if there have occurred changes in essential medical findings or diagnosis, that case is to be reviewed and adjudicated so as to produce the greatest degree of stability of disability evaluation.  In determining the propriety of a previous rating, the entire record as to medical history should be considered to ascertain whether the most recent examination is indeed a full and complete depiction of the level of disability.  38 C.F.R. § 3.344(a).  Likewise, in such cases provided doubt remains, after according due consideration to all the evidence developed by the several items discussed in the preceding paragraph (section 3.344(a)), the rating agency will continue the rating in effect under specified procedures.  38 C.F.R. § 3.344(b).

In this instance, however, the 20 percent rating in question was not in effect for 5 years or more, and the preceding paragraphs (a) and (b) do not apply, based upon a disability which has not become stabilized and is likely to improve.  Accordingly, reexaminations disclosing improvement, physical or mental, in these cases will warrant a reduction in rating.  38 C.F.R. § 3.344(c).

The determination in a reduction in rating case must include the proper application as to the standard of proof.  To warrant reduction in rating, it must be shown that the preponderance of the evidence supports the reduction itself, and with application of the benefit-of-the-doubt doctrine under 38 U.S.C.A. § 5107(b) as required.  See Brown v. Brown, 5 Vet. App. 413, 420 (1993).  

The bilateral hearing loss was increased from 10 percent to 20 percent disabling, effective February 18, 2010, in an April 2010 rating decision.  In a September 2011 rating decision, the RO proposed to reduce the Veteran's bilateral hearing loss from 20 percent to 10 percent.  In a January 2012 rating decision, the subject of this appeal, the reduction of Veteran's bilateral hearing loss evaluation to 10 percent, effective May 1, 2012, was completed.

Rating Criteria

The Veteran underwent a VA examination of his bilateral hearing loss in April 2010.  This examination was the basis of his increased evaluation in the April 2010 rating decision.  The audiometric data obtained at that time is as follows:




HERTZ



1000
2000
3000
4000
Avg
RIGHT
40
70
70
75
63.75
LEFT
65
75
80
85
76.25

Speech recognition scores were 82 percent correct in the right ear and 68 percent correct in the left ear. 

Following the Veteran's claim for increased evaluation, the Veteran was given a September 2011 VA audiological evaluation, which was the basis of his reduction.  The audiometric results from that examination are as follows:




HERTZ



1000
2000
3000
4000
Avg
RIGHT
35
65
70
75
61.25
LEFT
60
80
90
90
80

Speech recognition scores were 94 percent correct in the right ear and 64 percent correct in the left ear.

In applying the Tables in this case, and considering the provisions for exceptional patterns of hearing loss, the Board notes that application of the results from the April 2010 test demonstrates hearing level acuities of Level IV for the right ear, and Level VI in the left ear; only the Veteran's left ear hearing loss demonstrates an exceptional pattern of hearing loss such that application of a Table IVa is appropriate, and application of that Table continues to result in a Level VI hearing acuity for the left ear.  Such hearing acuity levels commensurate to a 20 percent evaluation under Table VII.  See 38 C.F.R. §§ 4.85, 4.86.

The application of the results from the September 2011 test demonstrates hearing level acuities of Level II for the right ear, and Level VII in the left ear; only the Veteran's left ear hearing loss demonstrates an exceptional pattern of hearing loss such that application of a Table IVa is appropriate, and application of that Table continues to result in a Level VII hearing acuity for the left ear.  Such hearing acuity levels commensurate to a 10 percent evaluation under Table VII.  See 38 C.F.R. §§ 4.85, 4.86.

The Board finds that there is measureable improvement in this case and that the reduction is proper.  The Veteran's hearing test results demonstrated significant improvement in the right ear, particularly with respect to his speech discrimination score.  These improved results commensurate to a Level II hearing loss, rather than Level IV on the previous examination when utilizing the applicable Rating Schedule regulations for bilateral hearing loss evaluation in this case.  While left ear hearing loss actually worsened, it did so by only one level (from VI to VII) and does not counter the improvement in the right ear hearing loss.  

While the Board acknowledges the Veteran's statements and testimony that he believes that there has been a subjective worsening of his condition and that his ability to hear has actually decreased rather than increased, the Board notes that the objective data in this case demonstrates improvement; however slight that improvement may translate into subjective manifestations of the Veteran's disability, there is still improvement of the Veteran's hearing loss disability shown.   In fact, the evaluation from the latter audiometric testing meets the criteria for only a 10 percent rating, while the results from the earlier audiometric testing met the criteria for the higher rating of 20 percent.  

The Board is cognizant of the Veteran's contentions concerning his difficulty in hearing, and he described the functional impact of such in his statements in support of his claim, his testimony in the May 2013 hearing, and in his VA examinations.  See Martinak v. Nicholson, 21 Vet. App. 447, 455-56 (2007).  However, the assignment of disability ratings for hearing impairment is derived from a mechanical formula.  That mechanical application unfortunately does not yield an evaluation in excess of 10 percent for the Veteran's level of hearing loss during the relevant reduction period on appeal at this time.

Accordingly, the Board finds that the reduction in the Veteran's bilateral hearing loss evaluation from 20 percent to 10 percent disabling, effective May 1, 2012, was proper in this case; the claim to restore the 20 percent evaluation must be denied.  See 38 C.F.R. §§ 3.105, 3.344, 4.85, 4.86, Diagnostic Code 6100.  

In reaching the above conclusion, the Board has considered the applicability of the benefit of the doubt doctrine.  However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable in the instant appeal.  See 38 U.S.C.A. § 5107(b) (West 2002); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990).


ORDER

Restoration of a 20 percent evaluation for bilateral hearing loss is denied.


REMAND

The Veteran has submitted two private audiological examinations from August 2012 and September 2012; in the supplemental statement of the case from September 2012, the RO indicated that those examinations were not adequate for rating purposes because they did not use the Maryland CNC test with respect to the speech discrimination testing performed during those examinations.

It does not appear that VA contacted those providers to clarify whether the Maryland CNC test was in fact used or not, but rather determined it was unclear from the face of the document whether Maryland CNC was used and therefore found such to be inadequate for rating purposes.

In Savage v. Shinseki, 24 Vet. App. 259 (2011), the United States Court of Appeals for Veterans Claims (Court) held that, in some circumstances, VA has a duty to return for clarification unclear or insufficient examination reports even when they do not originate from VA medical personnel.  In particular, such clarification should be obtained where the missing evidence bears greatly on the probative value of the examination report.  The Savage decision is directly implicated in the Veteran's claim for higher initial ratings for bilateral hearing loss, and specifically noted that clarification with regards to private audiological examiner's use of the Maryland CNC test was required.

The Board additionally notes that the Veteran should be given another VA audiological examination in order to ascertain the current severity of his bilateral hearing loss disability, if after clarification the RO/AMC deems such development necessary.  See Palczewski v. Nicholson, 21 Vet. App 174, 181-82 (2007); Snuffer v. Gober, 10 Vet. App. 400, 403 (1997); see also Bolton v. Brown, 8 Vet. App. 185, 191 (1995) (VA must provide a new examination where a veteran claims the disability is worse than when originally rated and the available evidence is too old to adequately evaluate the current severity); Caffrey v. Brown, 6 Vet. App. 377, 381 (1995).

Ongoing VA treatment records should also be obtained.  See 38 U.S.C.A. § 5103A(b), (c); 38 C.F.R. § 3.159(b); see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim). 

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) (2012).  Expedited handling is requested.)

1.  Obtain any relevant VA treatment records from the Minneapolis VA Medical Center, or any other VA medical facility that may have treated the Veteran, since March 2012 and associate those documents with the claims file. 

2.  Clarify with the private providers, who performed the August 2012 and September 2012 audiological examinations, whether those providers used the Maryland CNC test during their evaluation of the Veteran when obtaining the noted speech discrimination scores.  If such is unable to be accomplished and further attempts at clarification are futile, the Veteran should be so informed and such should be noted in the claims file.

3.  After clarification and if the RO/AMC deems necessary, schedule the Veteran for a VA audiologic examination in order to determine the current severity of his bilateral hearing loss.  The claims folder must be made available to and be reviewed by the examiner in conjunction with the examination.  Audiometric testing should be conducted and the results reported in detail.  

Following a claims file review, the examiner should examine the Veteran.  Such results of that examination should be reported in detail.  That examination report should also discuss the Veteran's complaints of hearing loss and its impact on his activities of daily living and occupational functioning.  

All opinions must be accompanied by a clear rationale.  If the examiner opines that any of the above questions cannot be resolved without resorting to speculation, then a detailed medical explanation as to why this is so must be provided.

4.  Following any additional indicated development, the RO/AMC should review the claims file and readjudicate the Veteran's claim for increased evaluation of his bilateral hearing loss.  If the benefits sought on appeal remain denied, the Veteran and his representative should be furnished a supplemental statement of the case and given the opportunity to respond thereto before the case is returned to the Board.

No action is required of the veteran until he is notified by the RO; however, the Veteran is advised that failure to report for any scheduled examination may result in the denial of his claim.  38 C.F.R. § 3.655 (2012).  The appellant has the right to submit additional evidence and argument on the matter 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).


______________________________________________
THOMAS J. DANNAHER
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs