Citation Nr: 1332209 Decision Date: 10/17/13 Archive Date: 10/21/13 DOCKET NO. 08-39 655 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUE 1. Entitlement to a rating in excess of 30 percent for bilateral hearing loss disability since November 1, 2012. 2. The propriety of the reduction from 50 percent to 30 percent for bilateral hearing loss disability effective November 1, 2012. REPRESENTATIVE Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD T. S. Willie, Counsel INTRODUCTION The Veteran served on active duty from February 1943 to June 1945. This matter initially came before the Board of Veterans' Appeals (Board) on an appeal from a rating decision issued by the Regional Office (RO) in Philadelphia, Pennsylvania. The Veteran testified before the undersigned Veterans Law Judge at an October 2010 hearing. A transcript of that hearing is of record. This case was remanded by the Board for additional development in January 2011 and March 2013. After the case was returned to the Board, correspondence was received establishing the Disabled American Veterans as a representative for the Veteran. The claims folder was forwarded to that organization, a written presentation was made, and the matter has been returned the Board for further review. 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). FINDINGS OF FACT 1. On VA audiometric examination in April 2013, the right ear had an average decibel loss of 60 with a speech recognition score of 64 percent (Level VI). The left ear had an average decibel loss of 61 with a speech recognition score of 68 percent (Level V). 2. All procedural requirements for a reduction in the evaluation of the Veteran's bilateral hearing loss disability have been met. 3. Applying the statutory and regulatory provisions to the evidence of record at the time of the March 2011 rating decision, the RO properly reduced the Veteran's disability rating of 50 percent to 30 percent. The 50 percent rating was assigned in error and was never supported by the clinical evidence on file. CONCLUSIONS OF LAW 1. The criteria for an evaluation higher than 30 percent disabling for bilateral hearing loss disability have not been met. 38 U.S.C.A. § 1155 (West 2002 and Supp. 2012); 38 C.F.R. §§ 4.85, 4.86, Diagnostic Code 6100 (2012). 2. The reduction of the evaluation of the Veteran's bilateral hearing loss disability from 50 percent to 30 percent was proper. 38 U.S.C.A. §§ 1155, 5107(b), 7105; 38 C.F.R. §§ 3.105(a), 3.321(b), 3.500, 4.86, Diagnostic Code 6100. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 (VCAA) The requirements of 38 U.S.C.A. §§ 5103 and 5103A have been met with regard to the issue decided herein. There is no issue as to providing an appropriate application or the completeness of the application. By correspondence dated in January 2008 and October 2009, VA advised the Veteran of the information and evidence needed to substantiate a claim. The letters provided notice of what part of that evidence is to be provided by the claimant, and notice of what part VA will attempt to obtain. The Veteran was also provided information regarding the assignment of disability ratings and effective dates. VA has also satisfied its duty to assist. The claims folder contains service treatment records, VA medical records and VA examinations. Moreover, during the October 2010 Board hearing, the undersigned explained the issues on appeal and asked questions designed to elicit evidence that may have been overlooked with regard to the claim. These actions provided an opportunity for the Veteran and his representative to introduce material evidence and pertinent arguments, in compliance with 38 C.F.R. § 3.103(c)(2) and consistent with the duty to assist. See Bryant v. Shinseki, 23 Vet. App. 488, 492 (2010). For the foregoing reasons, the Board concludes that all reasonable efforts were made by VA to obtain evidence necessary to substantiate the claims. No further assistance to the Veteran with the development of evidence is required. 38 U.S.C.A. § 5103A(a)(2); 38 C.F.R. § 3.159(d). Accordingly, the Board will address the merits of the claims. RATINGS 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; 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, 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. In Fenderson v. West, 12 Vet. App. 119 (1999), the United States Court of Appeals for Veterans Claims (Court) held that evidence to be considered in the appeal of an initial assignment of a disability rating was not limited to that reflecting the then current severity of the disorder. The Court also discussed the concept of the 'staging' of ratings, finding that, in cases where an initially assigned disability evaluation has been disagreed with, it was possible for a veteran to be awarded separate percentage evaluations for separate periods based on the facts found during the appeal period. Id. at 126-127; see also Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran's service-connected bilateral hearing loss disability has been rated by the RO under the provisions of Diagnostic Code 6100. The assignment of disability ratings for hearing impairment is derived by a mechanical application of the rating schedule to the numeric designations assigned after audiometric evaluations are rendered. Lendenmann v. Principi, 3 Vet. App. 345 (1992). The severity of a hearing loss disability is determined by applying the criteria set forth at 38 C.F.R. § 4.85. Under these criteria, evaluations of bilateral hearing loss range from noncompensable to 100 percent based on organic impairment of hearing acuity as measured by the results of controlled speech discrimination tests together with the average pure tone hearing threshold level, as measured by pure tone audiometry tests in the frequencies 1,000, 2,000, 3,000, and 4,000 Hertz, or cycles per second, divided by four. This average is used in all cases to determine the Roman numeral designation for hearing impairment from Table VI or VIa. 38 C.F.R. § 4.85(a), (d). Table VI, "Numeric Designation of Hearing Impairment Based on Pure tone Threshold Average and Speech Discrimination," is used to determine a Roman numeral designation (I through XI) for hearing impairment based on a combination of the percent of speech discrimination (horizontal rows) and the pure tone threshold average (vertical columns). The Roman numeral designation is located at the point where the percentage of speech discrimination and pure tone threshold average intersect. 38 C.F.R. § 4.85(b). Table VII, "Percentage Evaluations for Hearing Impairment," is used to determine the percentage evaluation by combining the Roman numeral designations for hearing impairment of each ear. The horizontal rows represent the ear having the better hearing, while the vertical columns represent the ear having the poorer hearing. The percentage evaluation is located at the point where the row and column intersect. 38 C.F.R. § 4.85(e). In addition, 38 C.F.R. § 4.86 applies to exceptional patterns of hearing impairment. Under its provisions, when the pure tone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz ) is 55 decibels or more, the rating specialist will determine the 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. When the pure tone 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 numeral. 38 C.F.R. § 4.86. One issue on appeal is entitlement to a rating in excess of 30 percent for bilateral hearing loss since November 1, 2012. The April 2013 audiological evaluation revealed an average right ear pure tone decibel loss of 60 with speech recognition of 64 percent. This corresponds to a numeric designation of Level VI hearing in the right ear. 38 C.F.R. § 4.87, Table VI. The Veteran had a left ear average pure tone decibel loss of 61 with speech recognition of 68 percent. These findings are consistent with Level V hearing in the left ear. These combined numeric designations result in a rating of no higher than 30 percent under Diagnostic Code 6100. 38 C.F.R. § 4.85, Table VII. (In fact the readings support only a 20 percent rating, but as explained by the RO, no current plans for reduction are indicated.) The Board notes that the audiological results fail to show that the pure tone threshold were 30 decibels or less at 1,000 Hertz, and 70 decibels or more at 2,000 Hertz. The Board observes, however, that the pure tone thresholds during the April 2013 examination reflect exceptional hearing impairment as defined by regulation in the right ear only, as pure tone thresholds at each of the four specified frequencies was 55 decibels or more. Application of the reported findings, however, to Table VIa results in no worse than Level IV hearing in the right ear, with the left ear (which does not fall under the pattern for exceptional hearing impairment), continuing to be Level V hearing. Application of these findings to Table VI further show that a higher rating is not warranted under 38 C.F.R. § 4.86(a) for the hearing loss. The Board notes that the Veteran's assertions that his hearing has deteriorated are credible. In determining the actual degree of disability, however, the examination findings are more probative of the degree of impairment. Moreover, as noted above, the Court has noted that the assignment of disability ratings for hearing impairment is derived at by a mechanical application of the numeric designations assigned after audiometric evaluations are rendered. Lendenmann, supra. In this case, the numeric designations produce no more than a 30 percent disability evaluation. 38 C.F.R. Part 4 Diagnostic Code 6100. Based on the foregoing, an evaluation higher than 30 percent disabling for bilateral hearing loss disability since November 1, 2012 must be denied. Although the Veteran asserts that his hearing loss is worse than evaluated, the medical evidence prepared by a skilled neutral professional is more probative. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable in the instant appeal. 38 U.S.C.A. § 5107(b) ; Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1991). The Board has considered whether the Veteran's disability presents an exceptional or unusual disability picture as to render impractical the application of the regular schedular standards such that referral to the appropriate officials for consideration of extra-schedular ratings is warranted. See 38 C.F.R. § 3.321(b)(1); Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996). There are no exceptional or unusual factors with regard to the Veteran's disability. The threshold factor for extra-schedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluation for that service-connected disability is inadequate. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993) ("[R]ating schedule will apply unless there are 'exceptional or unusual' factors which render application of the schedule impractical."). Here, the rating criteria reasonably describe the Veteran's disability levels and symptomatology, and the diagnostic code provide for consideration of greater disability and symptoms than currently shown by the evidence. Thus, the symptoms associated with the service-connected bilateral hearing loss disability are contemplated by the rating schedule, and the assigned schedular evaluation is, therefore, adequate. See Thun v. Peake, 22 Vet. App. 111, 115 (2008). Consequently, referral for extra-schedular consideration is not warranted. In reaching this decision, the Board has considered the applicability of the benefit-of-the doubt doctrine; however, as the preponderance of the evidence is against assignment of a higher rating, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b). REDUCTIONS The Veteran appeals the reduction in the disability rating for bilateral hearing loss from 50 percent to 30 percent for bilateral hearing loss effective November 1, 2012. Historically, the RO granted service connection for a bilateral hearing loss disability in a May 15, 2003 rating decision. The disability was evaluated as 20 percent disabling under DC 6100, effective January 7, 2003. This decision was not appealed and became final. See 38 U.S.C.A. § 7105. The Veteran submitted his request for an increased rating in August 2007. He was provided a VA examination in October 2007. In December 2007 and May 2008 rating decisions, the RO continued the 20 percent rating for the Veteran's bilateral hearing loss disability. The Veteran was afforded VA examinations in April 2008, January 2010 and February 2011. In a March 2011 rating decision, the Veteran's bilateral hearing loss disability was increased to 50 percent disabling, effective February 22, 2011. The RO found that the February 2011 examination results supported an increased evaluation of 50 percent disabling. In a March 2012 rating decision, however, the RO proposed to reduce the Veteran's bilateral hearing loss disability rating from 50 percent to 20 percent. The RO determined that they misinterpreted the February 2011 VA examination and that the VA examination did not support an evaluation in excess of the previously established 20 percent. In an August 2012 rating decision, the Veteran's disability was reduced to 30 percent, effective November 1, 2012. This rating was assigned based on all the evidence on file, some of which suggested a rating of 30 percent, some of which supported an evaluation of 20 percent. Where action by the rating agency would result in the reduction or discontinuance of compensation payments, section 3.105(e) requires that a rating initially proposing the reduction or discontinuance be prepared setting out all material facts and reasons for the proposed action. The regulation requires that the beneficiary of the compensation payments be notified at his or her latest address of record of the contemplated action, furnished detailed reasons therefore, and be given 60 days from the date of the notice for the presentation of additional evidence to show that the compensation payments should be continued at their present level. See 38 C.F.R. § 3.105(e). Furthermore, section 3.105(i) requires that the Veteran be informed that he or she may request a predetermination hearing provided that the request is received by VA within 30 days from the date of the notice of the proposed rating reduction. See 38 C.F.R. § 3.105(i)(1). Section 3.105 directs that unless otherwise provided by the subsection 3.105(i), 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 the beneficiary of the final rating action expires. See 38 C.F.R. § 3.105(e). In this case, the Veteran was notified of the proposed reduction in a March 2012 rating decision and an April 2012 letter. The rating decision and letter furnished detailed reasons for the proposed reduction, and also informed him that he had 60 days in which to submit additional evidence. The August 2012 rating decision that finalized the proposed reduction is dated well after the end of the 60 days in which the Veteran had to respond. The Veteran was informed of the final reduction in an August 2012 letter, and notified that the effective date of the reduction would be November 1, 2012. This was one day after the last day of the month in which a 60-day period from the date of notice to the beneficiary of the final rating action expires. The Veteran does not contend, and the evidence does not reflect, any failure in compliance with the procedural requirements above. Accordingly, the Board finds that the proper procedure was followed for effectuating a rating reduction in this matter. The Board will now review the August 2012 rating decision that reduced the rating for bilateral hearing loss disability from 50 percent to 30 percent to determine whether the reduction was supported by the evidence. There is no question that a disability rating may be reduced. The circumstances, however, under which rating reductions can occur are specifically limited and carefully circumscribed by VA regulations. Dofflemyer v. Derwinski, 2 Vet. App. 277, 280 (1992). Congress has provided that a Veteran's disability will not be reduced unless an improvement in the disability is shown to have occurred. 38 U.S.C.A. § 1155 . When a rating has been in effect for at least five years, 38 C.F.R. § 3.344 requires that the RO and the Board ensure that a rating reduction be based on an examination that is as full and complete as the examinations that formed the basis for the original and continued ratings and that the condition not be likely to return to its previous level. 38 C.F.R. § 3.344(a), (b), (c). The Board notes that the Veteran's rating was not in effect for five years at the time of the reduction and therefore 38 C.F.R. § 3.344 is inapplicable. The Board also observes that the RO found clear and unmistakable error (CUE) in the March 2011 decision which granted the 50 percent rating for bilateral hearing loss disability. The Board notes, however, that the issue of entitlement to an increased rating for a bilateral hearing loss was still under appeal at that time. As this decision was under appeal, it was not final and not subject to a CUE claim. See 38 C.F.R. §§ 3.104, 3.105(b), 20.302, 20.1103. CUE claims are reserved for final claims only. Where the decision has not become final, no CUE claim can be entertained. Link v. West, 12 Vet. App. 39, 44 (1998) (holding that CUE claim does not exist, as matter of law, where there is no prior final RO decision). This is not vital to the claim, and the language clearly sets out the basis for the change made in the pertinent rating action. Rather, the Board finds that the RO committed an administrative error in the March 2011 decision. In this regard, the RO found that the February 2011 examination results supported an increased evaluation of 50 percent disabling. The February 2011 audiological evaluation revealed an average right ear pure tone decibel loss of 58.75 with speech recognition of 76 percent. This corresponds to a numeric designation of Level IV hearing in the right ear. 38 C.F.R. § 4.87, Table VI. The Veteran had a left ear average pure tone decibel loss of 61.25 with speech recognition of 72 percent. These findings are consistent with Level V hearing in the left ear. These combined numeric designations result in a rating of no higher than 20 percent under Diagnostic Code 6100. 38 C.F.R. § 4.85, Table VII. The Board notes that the February 2011 audiological results fail to show that the pure tone threshold were 30 decibels or less at 1,000 Hertz, and 70 decibels or more at 2,000 Hertz. The Board observes, however, that the pure tone thresholds during this examination reflect exceptional hearing impairment as defined by regulation in the left ear only, as pure tone thresholds at each of the four specified frequencies was 55 decibels or more. Application of the reported findings, however, to Table VIa results in no worse than Level IV hearing in the left ear, with the right ear (which does not fall under the pattern for exceptional hearing impairment), continuing to be Level IV hearing. Application of these findings to Table VI further show that a higher rating is not warranted under 38 C.F.R. § 4.86(a) for the hearing loss. The above findings demonstrate that the Veteran did not warrant a 50 percent rating. The RO erred in its March 2011 rating decision when it mistakenly found that the February 2011 examination showed speech discrimination scores of 45 for both ears, resulting in the finding of a more severe disability. The objective evidence of record did not support the 50 percent evaluation for bilateral hearing loss disability at that time or at any time. In sum, the RO properly concluded that the assignment of a 50 percent rating for bilateral hearing loss disability in the March 2011 rating decision constituted an error. Furthermore, all applicable procedural safeguards to implement a rating reduction were followed. See 38 C.F.R. § 3.105. Accordingly, the Board finds that the rating reduction for bilateral hearing loss disability from 50 percent to 30 percent, was proper ORDER A rating higher than 30 percent disabling for bilateral hearing loss disability since November 1, 2012 is denied. The reduction of the rating from 50 percent to 30 percent for bilateral hearing loss disability was proper and the appeal is denied. ____________________________________________ MICHAEL D. LYON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs