Citation Nr: 1338055	
Decision Date: 11/20/13    Archive Date: 12/06/13

DOCKET NO.  13-04 925	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Columbia, South Carolina


THE ISSUE

Whether the disability rating for bilateral hearing loss was properly reduced from 80 percent to 70 percent, effective from August 21, 2010, to include whether an increased rating is warranted.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

A. G. Alderman, Counsel





INTRODUCTION

The Veteran served on active duty from September 1959 to April 1988.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina.

The Board recognizes that a claim stemming from a rating reduction action is a claim for restoration of the prior rating and, typically, does not contemplate a claim for an increased rating.  Peyton v. Derwinski, 1 Vet. App. 292 (1991); Dofflemyer v. Derwinski, 2 Vet. App. 277, 280 (1992).  In this case, the Veteran initiated a claim for an increased rating for bilateral hearing loss in June 2010.  Based upon an August 2010 VA examination report, the RO, in an April 2011 rating decision, reduced the rating for bilateral hearing loss to 70 percent from 80 percent, effective June 10, 2010.  In November 2012, the RO changed the effective date of the reduction to August 21, 2010.  The Board finds that the April 2011 determination which reduced the rating was also a denial of the Veteran's petition to have the rating increased.  As a result, the Veteran's appeal of that rating determination has brought before the Board the issue of the propriety of the reduction of the rating in addition to the Veteran's claim for entitlement to an increased disability rating for bilateral hearing loss.

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. Reduction of the Veteran's disability rating for bilateral hearing loss, from 80 percent to 70 percent was formally implemented by April and August 2010 rating decisions, effective August 21, 2010.

2. At the time the Veteran's disability rating for bilateral hearing loss was reduced from 80 percent to 70 percent, the 80 percent rating had been in effect for less than five years.

3. The reduction in the rating for bilateral hearing loss was proper.

4. In August 2009, the Veteran had level "IX" hearing in the right ear and level "XI" hearing in the left ear, which results in a rating of 80 percent.

5. In August 2010, the Veteran had level "VIII" hearing in the right ear and level "XI" hearing in the left ear, which results in a rating of 70 percent.

6. In November 2012, the Veteran had level "VIII" hearing in the right ear and level "X" hearing in the left ear, which results in a rating of 60 percent.

7. The Veteran does not have exceptional patterns of hearing impairment.


CONCLUSIONS OF LAW

1. The criteria for reduction from 80 percent to 70 percent for bilateral hearing loss, as of August 21, 2010, were met.  38 C.F.R. §§ 3.105(e), 4.85, Diagnostic Code 6100 (2013).

2. The criteria for a disability rating in excess of 80 percent prior to August 21, 2010 and to a disability rating in excess of 70 percent from August 21, 2010 have not been met.  38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.85, 4.86, Diagnostic Code 6100 (2013).






REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Duties to Notify and Assist

Upon receipt of a substantially complete application for benefits, VA must notify the claimant 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).

With regard to claims for increased disability ratings for service-connected conditions, the law requires VA to notify the claimant that, to substantiate a claim, the claimant must provide, or ask VA to obtain, medical or lay evidence demonstrating a worsening or increase in severity of the disability.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); 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 claimant must be notified that, should an increase in disability be found, a disability rating will be determined by applying relevant Diagnostic Codes, which typically provide for a range in severity of a particular disability from noncompensable to as much as 100 percent (depending on the disability involved), based on the nature of the symptoms of the condition for which disability compensation is being sought, their severity and duration.  Finally, the notice must provide examples of the types of medical and lay evidence that the Veteran may submit (or ask the VA to obtain) that are relevant to establishing her or his entitlement to increased compensation.  However, the notice required by section 5103(a) need not be specific to the particular Veteran's circumstances; that is, VA need not notify a Veteran of alternative diagnostic codes that may be considered or notify of any need for evidence demonstrating the effect that the worsening of the disability has on the particular Veteran's daily life.  Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009).  The notice must be provided prior to an initial unfavorable decision by the agency of original jurisdiction (AOJ).  Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004).

This claim stems from an increased ratings claim filed in June 2010.  In July 2010, the RO sent a letter to the Veteran that satisfied the duty to notify provisions relating to the Veteran's claim at issue herein.  38 U.S.C.A. § 5103 (a); 38 C.F.R. § 3.159 (b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).  The letter notified the Veteran that he must submit, or request that VA obtain, evidence of the worsening of his disabilities and the different types of evidence available to substantiate his claim for a higher rating.  Moreover, the letter informed him of the requirements to obtain higher ratings and notified him of the need to submit evidence of how such worsening effected his employment.  See Vazquez-Flores v. Shinseki, 580 F.3d 1270, 1275-82 (2009).  For these reasons, the Board finds that the content requirements of the notice VA is to provide have been met and no further development is required regarding the duty to notify.  See Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004).  Further, the purpose behind the notice requirement has been satisfied because the Veteran has been afforded a meaningful opportunity to participate effectively in the processing of his claim, including the opportunity to present pertinent evidence. 

Regarding rating reductions, as will be discussed below, a rating reduction requires compliance with particular notification procedures under the law that require that specific notice be given to the appellant before the adjudication takes place.  See 38 C.F.R. § 3.105(e), (i).  However, because the reduction from 80 percent to 70 percent for service-connected bilateral hearing loss did not lower the overall combined disability evaluation or result in discontinuance of compensation, these notification procedures do not apply in this case.

The duty to assist was also met in this case.  The service treatment records are in the claims file.  All pertinent VA and private treatment records have been obtained and associated with the file.  The Board has reviewed the Veteran's file on the "Virtual VA" system to insure a total review of the evidence.  VA examinations with respect to the issue on appeal were obtained in August 2010 and November 2012.  38 C.F.R. § 3.159(c) (4).  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 examination reports are adequate for rating purposes because the examiners examined the Veteran and provided detailed reports of his symptoms.  While the examiners may not have had the claims file for review in conjunction with conducting the examination and drafting the examination reports, because the purpose of the examinations was to document the severity of his bilateral hearing loss at the time of the examinations, the Board finds that the Veteran has not been prejudiced by the examiners' inability to review his claims file.  See Nieves-Rodriguez, 22 Vet. 295, 301 (2008); see also Snuffer v. Gober, 10 Vet. App. 400, 403 (1997) (review of claims file not required where it would not change objective and dispositive findings made during medical examination).  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).  

Reduction & Increased Rating

Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4.  The rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service.  The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations.  38 U.S.C.A. § 1155; 38 C.F.R. § 4.1.  Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating.  38 C.F.R. § 4.7.

In considering the severity of a disability, it is essential to trace the medical history of the veteran.  38 C.F.R. §§ 4.1, 4.2, 4.41.  Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of disability present.  38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991).  While the regulations require review of the recorded history of a disability by the adjudicator to ensure a more accurate evaluation, the regulations do not give past medical reports precedence over the current medical findings.  Where an increase in the disability rating is at issue, the present level of the veteran's disability is the primary concern.  Francisco v. Brown, 7 Vet. App. 55, 58 (1994).  The Board notes that staged ratings are appropriate for an increased-rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings.  Hart v. Mansfield, 21 Vet. App. 505 (2007).

Generally, where action by the rating agency would result in the reduction or discontinuance of compensation payments, 38 C.F.R. § 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, 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.  The regulation provides that if a timely request for a predetermination hearing is received, VA will notify the beneficiary in writing of the time and place of the hearing at least 10 days in advance of the scheduled hearing date; that the hearing will be conducted by VA personnel who did not participate in the proposed adverse action and who will bear the decision-making responsibility; and that if a predetermination hearing is timely requested, benefit payments shall be continued at the previously established level pending a final determination concerning the proposed action.  See 38 C.F.R. § 3.105(i).  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).

Where a disability rating has been continued for at least five 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 evaluation, 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).

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); Peyton, 1 Vet. App. at 286.

In this case, the Veteran filed a claim for an increased rating for service-connected bilateral hearing loss in June 2010.  The RO scheduled a VA examination, which was conducted on August 21, 2010.  Based on the findings in the examination report, in April 2011, the RO reduced the Veteran's disability rating for his bilateral hearing loss from 80 to 70 percent, effective June 10, 2010.  In November 2012, the RO amended the effective date to August 21, 2010, the date of the VA examination.  Notably, at the time he filed his claim, the Veteran had a combined disability rating of 90 percent.  The reduction in disability rating for bilateral hearing loss from 80 to 70 percent did not affect the overall combined disability rating at any time during the pendency of his claim.  In other words, the reduction did not cause any decrease in or discontinuance of his monthly disability compensation payments.  Consequently, the RO was not required to follow the procedures outlined in 38 C.F.R. § 3.105 before reducing the Veteran's disability rating.

Further, the 80 percent rating in question was not in effect for five 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 will warrant reduction in rating.  38 C.F.R. § 3.344(c).

In considering the evidence of record under the laws and records as discussed herein, the Board concludes that there is sufficient evidence to reduce the rating for service-connected bilateral hearing loss from 80 to 70 percent, effective from August 21, 2010 under 38 C.F.R.§ 4.85, Diagnostic Code 6100.

In evaluating service-connected hearing loss, disability ratings are derived by a mechanical application of the rating schedule to the numeric designations assigned after audiometric evaluations are performed.  Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992).  Evaluations of bilateral hearing loss range from noncompensable to 100 percent based on an organic impairment of hearing acuity, as measured by controlled speech discrimination tests in conjunction with the average hearing threshold, as measured by puretone audiometric tests in the frequencies of 1000, 2000, 3000 and 4000 cycles per second.  The rating schedule establishes 11 auditory acuity Levels designated from Level I for essentially normal hearing acuity through Level XI for profound deafness.

VA audiological evaluations are conducted using a controlled speech discrimination test together with the results of puretone audiometry tests.  The vertical line in Table VI (printed in 38 C.F.R. § 4.85 ) represents nine categories of the percentage of discrimination based on a controlled speech discrimination test.  The horizontal columns in Table VI represent 9 categories of decibel loss based on the puretone audiometry test.  The numeric designation of impaired hearing (Levels I through XI) is determined for each ear by intersecting the vertical row appropriate for the percentage of discrimination and the horizontal column appropriate to the puretone decibel loss.  The percentage evaluation is found from Table VII in 38 C.F.R. § 4.85 by intersecting the vertical column appropriate for the numeric designation for the ear having the better hearing acuity and the horizontal row appropriate for the numeric designation for the level for the ear having the poorer hearing acuity.  For example, if the better ear had a numeric designation of Level "V" and the poorer ear had a numeric designation of Level "VII" the percentage evaluation is 30 percent.  See 38 C.F.R. § 4.85.

Regulations also provide that in cases of exceptional hearing loss, i.e., when the puretone 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.  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 1000 hertz and 70 decibels or more at 2000, 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.

The Veteran filed a claim for an increased rating for bilateral hearing loss in June 2010.  Pursuant to 38 C.F.R. § 3.400(o), the Board will consider evidence dating back one year prior to his filing of his claim.

Here, the evidence includes an August 2009 VA audiology examination report which shows puretone thresholds as follows:


500
1000
2000
3000
4000
Right
25
55
80
80
85
Left
25
75
105+
105+
105+

The Veteran's right ear hearing acuity measured a puretone threshold average of 75 decibels with speech recognition of 48 percent.  This corresponds to a numeric designation of "IX" under Table VI.  38 C.F.R. § 4.85.  The left ear hearing acuity measured a puretone threshold average of 97.5 decibels with speech recognition of 16 percent.  This corresponds to a numeric designation of "XI" under Table VI.  Id. These combined numeric designations result in a rating of 80 percent under Diagnostic Code 6100.  38 C.F.R. § 4.85, Table VII.  The audiometry testing does not show exceptional patterns of hearing loss.  The diagnosis was moderately severe sensorineural hearing loss in the right ear and severe sensorineural hearing loss in the left ear.  The examiner stated that the Veteran does not have a condition that if treated, might lead to a change in the hearing threshold levels.

The Veteran was afforded another VA audiology examination in August 2010.  Puretone thresholds measured as follows:


500
1000
2000
3000
4000
Right
25
60
90
90
90
Left
25
70
105+
105+
105+

The Veteran's right ear hearing acuity measured a puretone threshold average of 82.5 decibels with speech recognition of 64 percent.  This corresponds to a numeric designation of "VIII" under Table VI.  38 C.F.R. § 4.85.  The left ear hearing acuity measured a puretone threshold average of 96.25 decibels with speech recognition of 28 percent.  This corresponds to a numeric designation of "XI" under Table VI.  Id. These combined numeric designations result in a rating of 70 percent under Diagnostic Code 6100.  38 C.F.R. § 4.85, Table VII.  The audiometry testing does not show exceptional patterns of hearing loss.  The diagnosis was moderately severe sensorineural hearing loss in the right ear and severe sensorineural hearing loss in the left ear.  The examiner stated that the Veteran does not have a condition that if treated, might lead to a change in the hearing threshold levels.

The Veteran was afforded another VA audiology examination in November 2012.  Puretone thresholds measured as follows:


500
1000
2000
3000
4000
Right
35
65
95+
95
95
Left
35
75
105+
105+
105+

The Veteran's right ear hearing acuity measured a puretone threshold average of 88 decibels with speech recognition of 64 percent.  This corresponds to a numeric designation of "VIII" under Table VI.  38 C.F.R. § 4.85.  The left ear hearing acuity measured a puretone threshold average of 98 decibels.  Speech recognition testing could not be completed.  This corresponds to a numeric designation of "X" under Table XIA, which provides numeric designations based only on puretone threshold averages.  Id.  These combined numeric designations result in a rating of 60 percent under Diagnostic Code 6100.  38 C.F.R. § 4.85, Table VII.  The audiometry testing does not show exceptional patterns of hearing loss.  The diagnosis was bilateral sensorineural hearing loss.  The Veteran reported that he had a difficult time hearing when more than one person is talking.

In considering the evidence of record under the laws and records as set forth above, the Board concludes that the Veteran is not entitled to restoration of his 80 percent disability rating for service-connected bilateral hearing loss under Diagnostic Code 6100.  The Board has considered the Veteran's complaints regarding the severity of his hearing loss, however, disability ratings for hearing loss are derived by a mechanical application of the rating schedule to the numeric designations assigned after audiometric evaluations are performed.  Lendenmann, 3 Vet. App. at 349.  Here, the evidence shows that the Veteran was entitled to an 80 percent disability rating for his bilateral hearing loss, but not greater, until August 2010, at which time his entitlement decreased to 70 percent based on the application of puretone threshold averages and speech recognition scores to Table VII under Diagnostic Code 6100.  Most recently, his examination results show entitlement to only a 60 percent rating.  Consequently, the Board finds that the reduction in rating from 80 percent to 70 percent for service-connected bilateral hearing loss, effective August 21, 2010, was proper.  Further, the Board finds that a rating in excess of 80 percent is not warranted prior to August 21, 2010 and that a rating in excess of 70 percent is not warranted subsequent to this date.  The appeal is denied.

Extraschedular Ratings

Generally, evaluating a disability using either the corresponding or analogous diagnostic codes contained in the Rating Schedule is sufficient.  See 38 C.F.R. §§ 4.20, 4.27 (2013).  However, because the ratings are averages, it follows that an assigned rating may not completely account for each individual veteran's circumstance, but nevertheless would still be adequate to address the average impairment in earning capacity caused by disability.  However, in exceptional cases where the rating is inadequate, it may be appropriate to assign an extraschedular rating.  38 C.F.R. § 3.321(b) (2013). 

The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate, a task performed either by the RO or the Board.  Id.; see Thun v. Peake, 22 Vet. App. 111, 115 (2008), aff'd, 572 F.3d 1366 (2009); see also Fisher v. Principi, 4 Vet. App. 57, 60 (1993) ("[R]ating [S]chedule will apply unless there are 'exceptional or unusual' factors which render application of the schedule impractical.").  Therefore, initially, there must be a comparison between the level of severity and symptomatology of the Veteran's service-connected disability with the established criteria found in the Rating Schedule for that disability.  Thun, 22 Vet. App. at 115.  If the criteria reasonably describe the Veteran's disability level and symptomatology, then the Veteran's disability picture is contemplated by the Rating Schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. 

The Board finds that the Veteran's disability picture is not so unusual or exceptional in nature as to render the already assigned rating inadequate.  The Veteran has submitted no evidence showing that this disorder has "markedly" interfered with his ability to obtain or maintain employment beyond that interference contemplated by the assigned evaluation, and there is also no indication that this disorder has necessitated frequent, or indeed any, periods of hospitalization during the pendency of this appeal.  As such, the Board is not required to remand this matter to the RO for the procedural actions outlined in 38 C.F.R. § 3.321(b)(1).  See Thun v. Peake, 22 Vet. App. 111 (2008).

The Board has also considered whether an inferred claim for a total disability rating based on individual unemployability (TDIU) under Rice v. Shinseki, 22 Vet. App. 447 (2009) has been raised.  However, the evidence does not show that the Veteran's hearing loss has precluded him from obtaining and maintaining substantially gainful employment.  Thus, entitlement to TDIU has not been raised.


ORDER

Reduction of the disability rating from 80 percent to 70 percent for service-connected bilateral hearing loss, effective August 21, 2010, was proper.

Entitlement to a disability rating in excess of 80 percent prior to August 21, 2010 and to a disability rating in excess of 70 percent from August 21, 2010 is denied.


____________________________________________
KATHLEEN K. GALLAGHER
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs