Citation Nr: 1641669	
Decision Date: 10/27/16    Archive Date: 11/08/16

DOCKET NO.  15-07 133	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Fort Harrison, Montana


THE ISSUES

1.  Entitlement to an increased disability rating migraine, currently rated as 30 percent disabling.

2.  Entitlement to a restoration of a 40 percent disability rating for bilateral hearing loss disability effective June 1, 2015.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

Appellant



ATTORNEY FOR THE BOARD

E.I. Velez, Counsel


INTRODUCTION

The Veteran served on active duty from August 1961 to July 1963 and September 1963 to August 1982. 

These matters come before the Board of Veterans' Appeals (Board) on appeal from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO), in Fort Harrison, Montana. 

In July 2016, the Veteran testified at a hearing held at the RO before the undersigned Veterans Law Judge (VLJ).  A transcript of the hearing is associated with the record.  

At the hearing, the Veteran's representative specifically stated that the Veteran was not seeking an increased disability rating for bilateral hearing loss, but rather, was seeking solely the restoration of the 40 percent disability rating.  Therefore, the analysis below will be focused only on the propriety of the reduction of the disability rating of bilateral hearing loss disability.

In a July 2014 rating decision, entitlement to a total disability rating based on individual unemployability as due to service connected disability (TDIU) was denied.  The Veteran disagreed with the denial and a Statement of the Case (SOC) was issued in February 2015.  In a VA Form 9 dated that same month, the Veteran acknowledged having reviewed the SOCs and Supplemental SOCs submitted in the case and stated he was only appealing the issues of the reduction of the disability rating of bilateral hearing loss and the disability rating assigned of headaches.  He specifically did not appeal the issue of entitlement to TDIU.  Therefore, the Board finds that despite the holding in Rice v. Shinseki, the issue of entitlement to TDIU is not before the Board.  

This appeal was processed using the Veterans Benefits Management System (VBMS) paperless claims processing system. There is also a paperless, electronic record in the Virtual VA system.

The issues of the disability rating for headaches is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ).


FINDING OF FACT

At the time of the March 2015 rating decision, the evidence of record failed to establish objective improvement in the Veteran's hearing loss disability, in particular his speech recognition ability.


CONCLUSION OF LAW

The criteria for restoration of a disability rating of 40 percent for bilateral hearing loss disability, effective June 1, 2015, have been met.  38 U.S.C.A. 
§§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.105 (e), 3.344, 4.124a, Diagnostic Code 8515 (2015).


REASONS AND BASES FOR FINDING AND CONCLUSION

I. Duties to Notify and Assist

The Board is reinstating the prior 40 percent for bilateral hearing loss disability, effective to the date of the reduction June 1, 2015, so there is no need to discuss whether there has been compliance with the notice and duty to assist provisions because even assuming, for the sake of argument, there has not been (for whatever reason) this is inconsequential and, therefore, at most harmless error.  38 U.S.C.A. § 5100 et seq. (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2014); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002); Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004); Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd sub nom. Hartman v. Nicholson, 483 F.3d 1311 (2007); Mayfield v. Nicholson, 07-7130 (Fed. Cir. September 17, 2007) (Mayfield IV); and Sanders v. Nicholson, 487 F.3d 881 (2007).

II. Legal Criteria and Analysis

Generally, when reduction in the evaluation of a service-connected disability or employability status is contemplated and the lower evaluation would result in a reduction or discontinuance of compensation payments, a rating proposing the reduction or discontinuance will be prepared setting forth all material facts and reasons.  The beneficiary must be notified at his latest address of record of the contemplated action and be furnished detailed reasons therefore.

In addition, the RO must notify the veteran that he or she has 60 days to present additional evidence showing that compensation should be continued at the present level.  If no additional evidence is received within the prescribed time period to contest the reduction, the proposed action may be accomplished.  The effective date of the final action shall be the last day of the month in which a 60-day period from the date of notice to the beneficiary of the final action expires.  38 C.F.R. 
§ 3.105(e).

In this regard, the Board finds that the RO satisfied the procedural due process notification requirements under 38 C.F.R. § 3.105 (e).  Specifically, after the proposed reduction and being apprised of it in July 2014, the Veteran was given 60 days to present additional evidence and was notified at his address of record.  Subsequently, the final rating action was issued in March 2015, and the RO reduced the disability ratings for the Veteran's bilateral hearing loss disability to 20 percent, effective June 1, 2015.  The effective date of the reductions, June 1, 2015, was after the last day of the month after expiration of the 60-day period from the date of notice of the final rating action.  Thus, the RO carried out the reduction in accordance with the procedural due process requirements of 38 C.F.R. § 3.105 (e).

The provisions of 38 C.F.R. § 3.344 provide criteria and considerations to take into account when determining whether a reduction in a rating is warranted.  In this regard, 38 C.F.R. § 3.344 (a) notes that rating agencies will handle cases affected by change 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.  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.  Examinations less full and complete than those in which payments were authorized or continued will not be used as a basis of reduction.  Ratings on account of diseases subject to temporary or episodic improvement, e.g., manic depressive or other psychotic reaction, epilepsy, psychoneurotic reaction, arteriosclerotic heart disease, bronchial asthma, gastric or duodenal ulcer, many skin diseases, etc., will not be reduced on any one examination except in those instances where all the evidence of record clearly warrants the conclusion that sustained improvement has been demonstrated.  Moreover, though 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).

If doubt remains, after according due consideration to all the evidence developed by the several items discussed in paragraph (a) of this section, the rating agency will continue the rating in effect, citing the former diagnosis with the new diagnosis in parentheses, and following the appropriate code there will be added the reference "Rating continued pending reexamination ____ months from this date, § 3.344."  The rating agency will determine of the basis of the facts in each individual case whether 18, 24, or 30 months will be allowed to elapse before the reexamination will be made.  38 C.F.R. § 3.344 (b).

The provisions of paragraph (a) apply to ratings which have continued for long periods at the same level (5 years or more).  They do not apply to disabilities which have not become stabilized and are likely to improve.  Re-examination disclosing improvement, physical or mental, in these disabilities will warrant reduction in rating.  38 C.F.R. § 3.344 (c).

As noted, where a disability evaluation has continued at the same level for less than five years, that analysis is conducted under 38 C.F.R. § 3.344 (c).  Where an evaluation has continued at the same level for five or more years, the analysis is conducted under 38 C.F.R. § 3.344 (a) and (b).  In the present case, in a May 2013 rating decision, the Veteran was granted service connection for bilateral hearing loss disability and assigned a 40 percent evaluation, effective November 16, 2011.  In a March 2015 rating decision the RO reduced the disability rating to 20 percent, effective June 1, 2015, less than 5 years later.  See Brown v. Brown, 5 Vet. App. 413, 418 (1993) (finding that the express language of § 3.344(c) and other VA regulations compels the conclusion that the duration of a rating for purposes of § 3.344(c) must be measured from the effective date assigned that rating until the effective date of the actual reduction).  Accordingly, the requirements under 38 C.F.R. § 3.344 (a) and (b) do not apply in the instant case, and 38 C.F.R. § 3.344 (c) does apply.  Evidence disclosing improvement in the disability is sufficient to warrant reduction in a rating.  38 C.F.R. § 3.344 (c).

Nevertheless, the U.S. Court of Appeals for Veterans Claims (Court) has held that several general regulations are applicable to all rating reduction cases, without regard for how long a particular rating has been in effect.  The Court has stated that certain regulations "impose a clear requirement that VA rating reductions, as with all VA rating decisions, be based upon a review of the entire history of the veteran's disability."  Brown at 420 (referring to 38 C.F.R. §§ 4.1 , 4.2, 4.13).  A rating reduction requires an inquiry as to "whether the evidence reflects an actual change in the disability and whether the examination reports reflecting such change are based upon thorough examinations."  Brown at 421.  Thus, in any rating-reduction case, not only must it be determined that an improvement in a disability has actually occurred, but also that improvement reflects an improvement under the ordinary conditions of life and work.

The Rating Schedule provides rating tables for the evaluation of hearing impairment.  Table VI assigns a Roman numeral designation (I through XI) for hearing impairment based on a combination of percent speech discrimination and the pure tone threshold average (the sum of the pure tone thresholds at 1000, 2000, 3000 and 4000 Hertz, divided by four).  38 C.F.R. § 4.85 (2015).  Table VII is used to determine the percentage evaluation by combining the Table VI Roman numeral designations for hearing impairment in each ear. Id.  

When evaluating service-connected hearing impairment, disability ratings are derived by a mechanical application of the rating schedule to the numeric designations assigned in audiometric evaluations.  Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992).

38 C.F.R. § 4.86 provides for exceptional patterns of hearing impairment. 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.  38 C.F.R. § 4.86 (a) (2014).  Each ear is evaluated separately.  Id.  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 from either Table VI or Table VIA, whichever results in the higher numeral.  38 C.F.R. § 4.86 (b) (2014).  That numeral is then elevated to the next higher Roman numeral.  Id.  Again, each ear is evaluated separately.  Id.  

In a March 2013 rating decision, the Veteran was granted service connection for bilateral hearing loss disability and assigned a 40 percent evaluation, effective November 16, 2011.  The Veteran was afforded a VA examination in April 2014.  Subsequently, in a March 2015 rating decision, the disability rating was reduced to 20 percent effective June 1, 2015.  

In order to justify a decrease in evaluation, there must be evidence of improvement.  


On VA audiological examination in July 2012 puretone thresholds were as follows:



HERTZ



1000
2000
3000
4000
RIGHT
55
55
70
80
LEFT
35
45
70
75

The average puretone loss in the right ear was 65 decibels and 56 in the left ear.  Speech audiometry revealed speech recognition ability of 52 percent in the right ear and 46 percent in the left ear.  The examiner noted that the use of speech discrimination scores was appropriate for this veteran.

The findings of the July 2002 VA examination result in a numeric value of VIII for the right ear and VII in the left ear which warrants a 40 percent evaluation when those values are applied to Table VII.  38 C.F.R. § 4.85, Diagnostic Code 6100 (2015).  

On audiological examination of May 2014, puretone thresholds were as follows:



HERTZ



1000
2000
3000
4000
RIGHT
50
65
60
75
LEFT
35
50
65
70

The average puretone loss in the right ear was 62 decibels and 55 in the left ear.  Speech audiometry revealed speech recognition ability of 55 percent in the right ear and 76 percent in the left ear.  The examiner noted that "[t]he use of speech discrimination score is not appropriate with this veteran because of language difficulties, cognitive impairment, inconsistent speech discrimination scores, etc., that make combined use of puretone average and speech discrimination scores to be inappropriate." 

The record contains a private audiological examination dated in January 2015.  However, this examination is not adequate for VA rating purposes as the speech discrimination scores were obtained using the W-22 word list rather than the CNC Maryland test.

On audiological examination of June 2015, puretone thresholds were as follows:



HERTZ



1000
2000
3000
4000
RIGHT
60
65
70
75
LEFT
40
50
70
70

The average puretone loss in the right ear was 67 decibels and 57 in the left ear.  Speech audiometry revealed speech recognition ability of 32 percent in the right ear and 44 percent in the left ear.  The examiner noted that "[t]he use of speech discrimination score is not appropriate with this veteran because of language difficulties, cognitive impairment, inconsistent speech discrimination scores, etc., that make combined use of puretone average and speech discrimination scores to be inappropriate." 

A clarification opinion regarding the speech recognition scores was obtained following the June 2015 audiological examination.  In the June 2015 clarification opinion, the examiner stated that the word recognition scores from the April 2014 and June 2015 examinations are not an accurate representation of the Veteran's word recognition ability.  She stated that the responses are inconsistent with the level of hearing loss as measured by the puretone thresholds.  She explained that examinees are always instructed to repeat back the word they hear and they are encouraged to take a guess if unsure.  In this case, the Veteran gave only half word answers during speech recognition threshold testing and he often did not provide any responses during word recognition testing in June 2015.  These types of responses and behaviors are often seen in cases where there is a non-organic component present.  At no time did the Veteran indicate he did not understand the task.  She further noted that when looking at previous word recognition tests using the same test material via the same mode of presentation, there was a significant decrease in word recognition ability when comparing the exam in April 2014 to his June 2015 examination.  She noted that hearing exams are mostly subjective, so she is unable to determine the validity of the Veteran's speech recognition scores with absolute certainty.  

The Board finds that the April 2014 examination was not sufficient to warrant a rating reduction.  A rating reduction requires an inquiry as to "whether the evidence reflects an actual change in the disability and whether the examination reports reflecting such change are based upon thorough examinations."  See Brown 5 Vet. App. 413 at 421.  Significantly, the RO based the reduction of the disability rating of bilateral hearing loss disability on the speech discrimination scores noted at the April 2014 audiological examination which noted a 76 percent speech discrimination score on the left ear.  However, the examiner noted that "[t]he use of speech discrimination score is not appropriate with this veteran because of language difficulties, cognitive impairment, inconsistent speech discrimination scores, etc., that make combined use of puretone average and speech discrimination scores to be inappropriate."  Furthermore, the clarification opinion of June 2015 again reiterated that the speech recognition scores of the April 2014 were unreliable.  Significantly, the clarification opinion did not state that the discrepancy in the speech recognition scores were a result of a willful act of deception on the part of the Veteran.  Without any evidence of deceit, the Board will not assume the same exists.  

Therefore, the Board finds that the speech discrimination scores of the April 2014 VA examination were not adequate, as noted by the examiner herself, and therefore, is not a sufficient basis on which to find improvement.  Moreover, a review of the audiometric findings shows that they were either consistent with or had worsened since the July 2012 VA audiological examination.  

As such, the Board finds that the evidence did not demonstrate that an improvement in the Veteran's bilateral hearing loss disability had actually occurred and that such improvement actually reflected an improvement in his ability to function under the ordinary conditions of life and work.  The speech discrimination scores of the May 2014 VA examination are not reliable.  

Here, the Board finds that the evidence supports restoration of the 40 percent evaluation for bilateral hearing loss disability.

In reaching a determination regarding the consistency of the testing, the AOJ had classified a disability as including hemiplegia, mild aphasia and mild dementia.


ORDER

The claim for restoration of a disability rating of 40 percent for bilateral hearing loss disability is granted, subject to the laws and regulations governing the payment of VA compensation.


REMAND

The Veteran seeks an increased disability rating for the service connected migraine previously classified as headaches with transient hemiplegia, mild aphasia, and mild dementia, secondary to stroke.  The Board finds that additional development is needed prior to deciding this issue.

The Veteran's service-connected headaches are rated as 30 percent disabling thereafter, pursuant to 38 C.F.R. § 4.124 (a), Diagnostic Code 8100.  The rating criteria provide a 30 percent disability evaluation is assigned for characteristic prostrating attacks occurring on average once a month over the last several months. The highest schedular evaluation, 50 percent, is warranted for migraines with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability.  Id.

At the July 2016 Travel board hearing the Veteran testified that he now has headaches all the time.  He testified that his headaches had changed a bit.  He also testified he has 3 to 4 headaches per week, but has recurring headaches which run all the time every day.  He testified he gets waken up at night 3-4 times a month due to the headaches and 5-6 times a month gets close to having to throw up.

The Veteran was most recently examined by the VA for his headaches in April 2014.  The symptomatology reported at the hearing shows a potential worsening of the disability.  Indeed, the testimony at the hearing shows that the headaches are now more frequent, of a more lasting duration and of increased intensity.  

Moreover, as noted above, to warrant a higher disability rating the evidence should show very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability.  The crucial question which currently is unanswered based on the hearing testimony is whether the Veteran's headaches are "productive of severe economic inadaptability." 

The Board acknowledges that the April 2014 VA examiner found the Veteran's headaches were mild and had no impact on employment.  However, he is now reporting near constant headaches of increased intensity.  Further, and significantly, the Board notes that the Veteran had applied for a TDIU based in part to the service connected headaches.  As such, given the reported increase in severity and the fact that there is no current opinion as to whether the Veteran's headaches are "productive of severe economic inadaptability," the Board finds that, at a minimum, a new medical opinion is needed as to the current severity of the Veteran's headaches prior to deciding the issue.   

Accordingly, the case is REMANDED for the following action:

1. Request that the Veteran provide additional information regarding the impact his service-connected headaches have or may have on his ability to work. The Veteran should be informed that any employment records that may exist documenting any such impact, to include records such as sick leave records or records of any leave without pay, would be probative evidence.

2. The AOJ should obtain a medical opinion regarding the claim for an increased rating for headaches.  The claim file should be made available to the examiner for their review and the report should indicate a review of the claim file was conducted.  If the examiner determines another examination is necessary then such should be arranged.

Upon consideration of all of the evidence of record and in particular the Veteran's testimony at the July 2016 hearing, the examiner should opine as to whether current headaches are (a) very frequent, (b) completely prostrating and prolonged, and (c) productive of severe economic inadaptability.

A complete rationale should accompany each opinion provided and should be based on examination findings, historical records, and medical principles.

3. Schedule the veteran for a neurological examination.  The purpose of the examination is to determine if there are residuals of hemiplegia, aphasia and dementia.
4. The AOJ must prepare a decision that full explains the determination regarding the hemiplegia, aphasia and dementia.  Are such manifestations still service connected? Did the AOJ consider the law regarding protection? If still service connected, what evaluations are warranted?

If upon completion of the above action the claim remains denied, the case should be returned to the Board after compliance with appellate procedures.  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 2014).




______________________________________________
H. N. SCHWARTZ
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs