Citation Nr: 1800736	
Decision Date: 01/05/18    Archive Date: 01/19/18

DOCKET NO.  17-48 135	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Louis, Missouri


THE ISSUE

Propriety of a rating reduction of 40 percent to 20 percent for bilateral hearing loss, effective February 1, 2017.


REPRESENTATION

Veteran represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

M. Thompson, Associate Counsel



INTRODUCTION

The Veteran served on active duty in the United States Army from December 1950 to February 1954. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2016 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. 

The Veteran's reduction claim stems from a November 2016 rating decision that reduced the rating for the Veteran's service-connected bilateral hearing loss from 40 percent to 20 percent. It is noted that in an August 2016 RO rating decision, the Veteran's 40 percent schedular rating for bilateral hearing loss was proposed to be reduced to 20 percent. In the November 2016 rating decision, the rating was reduced to 20 percent effective from February 1, 2017. The Veteran submitted his notice of disagreement (NOD) in December 2016, placing the issue on appeal to the Board.

The matter of the reduction in the assigned disability rating for the Veteran's service-connected bilateral hearing loss does not necessarily include a claim for an increased rating. See Dofflemeyer v. Derwinski, 2 Vet. App. 277, 279-280 (1992) (the issue on appeal is not whether the Veteran is entitled to an increase, but whether the reduction in rating was proper). Accordingly, the Board shall limit its decision here to the propriety of the reduction regarding that disability.

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2).


FINDINGS OF FACT

1. In an August 2016 rating decision, the Veteran was informed that his 40 percent evaluation for bilateral hearing loss was proposed to be reduced to a 20 percent rating.

2. In a November 2016 decision, the RO reduced the rating for the Veteran's hearing loss from 40 percent disabling to 20 percent disabling effective February 1, 2017.

3. The 40 percent rating had been in effect since February 23, 2015, which was less than five years. 

4. The evidence at the time of the rating reduction demonstrated that the Veteran's hearing loss disability had improved, bilaterally.


CONCLUSION OF LAW

The reduction of the rating for bilateral hearing loss from 40 percent to 20 percent effective February 1, 2017, was proper. 38 U.S.C. §§ 1155, 5112, 5103, 5103A; 38 C.F.R. §§ 3.105(e), 3.159, 3.344, 4.85, Diagnostic Code (DC) 6100, 4.86 (2017). 


REASONS AND BASES FOR FINDINGS AND CONCLUSION

I. Duties to Notify and Assist

The Veteran filed claims for increased rating for bilateral hearing loss and service connection for tinnitus using VA Form 21-526EZ for fully developed claims. Under the framework for a fully developed claim, a claim is submitted in a "fully developed" status, limiting the need for further development of the claim by VA. When filing a fully developed claim, a veteran submits all evidence relevant and pertinent to his or her claim other than service treatment records and treatment records from VA medical centers, which will be obtained by VA. Under certain circumstances, additional development, including obtaining additional records and providing the veteran with a VA medical examination, may still be required prior to the adjudication of the claim. See VA Form 21-526EZ.

The fully developed claim form includes notice regarding what evidence is required to substantiate a claim for service connection and increased rating and of the veteran's and VA's respective duties for obtaining evidence. The notice also provides information on how VA assigns disability ratings. See id. Thus, the notice that is part of the claims form submitted by the Veteran has satisfied VA's duty to notify.

With respect to rating reductions, such as the one on appeal, there are specific notice requirements, found in 38 C.F.R. § 3.105 (e)-(i), which 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) (2017).

When the procedures of 38 C.F.R. § 3.105(e) are applicable, VA must comply with those provisions rather than the notice and duty provisions in The Veterans Claims Assistance Act (VCAA), 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126. See, e.g., Kitchens v. Brown, 7 Vet. App. 320, 325 (1995); Brown v. Brown, 5 Vet. App. 513 (1993); Venturella v. Gober, 10 Vet. App. 340, 342-43 (1997) (defining evidence which may be used in such determinations). As noted above, the requirements under 38 C.F.R. § 3.105(e) for reduction of the schedular disability rating from 40 percent to 20 percent for the Veteran's service-connected bilateral hearing loss were properly carried out by the RO.

With respect to his rating reduction for bilateral hearing loss, the Veteran was provided a VA examination in June 2016. 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 obtained in this case is adequate, as it is predicated on a review of the Veteran's medical history as well as on audiological examination and fully address the rating criteria that are relevant to rating the disability in this case.

The Board concludes that all the available records and medical evidence have been obtained in order to make adequate determinations as to this claim. Hence, no further notice or assistance is required to fulfill VA's duty to assist in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002).

II. Reduction

In May 2015, the RO granted an increased rating of 40 percent for the Veteran's service-connected bilateral hearing loss, effective February 23, 2015. This increase was based on an April 2015 VA examination. His puretone thresholds, as tested at that time, were as follows:

 
 
 
HERTZ
 
 
 
1000
2000
3000
4000
Avg
RIGHT
60
65
80
85
73
LEFT
60
70
80
80
73

The Veteran's average puretone threshold was 73 in the right and left ear. Speech recognition scores using the Maryland CNC word list were 56 percent for the right ear and 68 percent in the left ear. The Veteran stated that he struggles significantly to hear in all situations.

The Veteran most recently underwent a VA examination to assess the severity of his hearing loss in June 2016. The June 2016 VA audiological examination found puretone thresholds in decibels as: 



 
 
 
HERTZ
 
 
 
1000
2000
3000
4000
Avg
RIGHT
50
60
80
85
69
LEFT
55
65
75
80
69

The average puretone thresholds were 69 decibels in the right ear and 69 in the left ear. Speech audiometry revealed speech recognition ability of 76 percent in the right ear and 62 percent in the left ear. The Veteran reported that his hearing loss did not impact the ordinary conditions of daily life, including the ability to work. 

With respect to the August 2016 private audiological evaluation submitted by the Veteran, only the graphic representation of the audiogram was included in the record, with no numeric interpretation provided. Nevertheless, as the audiometric results were conveyed in a straightforward graph, the Board finds that it, as the finder of fact, can interpret the chart to determine the numeric values of the puretone levels of adjudication purposes. See Kelly v. Brown, 7 Vet. App. 471 (1995). However, testing of hearing loss disability for VA rating purposes must also meet specific requirements, to include speech discrimination testing in a controlled setting using a Maryland CNC word list. There is no indication in the record that the private audiological evaluation was conducted in the manner prescribed. Thus, the Board finds that this audiological examination is probative, but as it does not contain a Maryland CNC test, it is not sufficient for rating purposes because it does not comply with 38 C.F.R. § 4.85.  

In August 2016, the RO proposed to reduce the evaluation for the Veteran's bilateral hearing loss from 40 percent to 20 percent, effective February 1, 2017. In a November 2016 rating decision, the RO reduced the disability evaluation from 40 percent to 20 percent, effective February 1, 2017. The Veteran maintains that his 40 percent rating should not have been reduced. 

Where the reduction in evaluation of a service-connected disability is considered warranted and the lower evaluation would result in a reduction or discontinuance of compensation payments currently being made, a rating proposing the reduction or discontinuance will be prepared setting forth all material facts and reasons. The beneficiary will be notified at his or her latest address of record of the contemplated action and furnished detailed reasons therefore and given 60 days for the presentation of additional evidence to show that compensation payments should be continued at their present level. 

Unless otherwise provided, if additional evidence is not received within that period, 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. 38 C.F.R. § 3.105(e) (2017); see also 38 U.S.C. § 5112(b)(6).

The Veteran was sent a notice letter of the proposed reduction dated August 2016. Such communication fully detailed the proposal to reduce his disability evaluation and apprised him that he had 60 days to submit additional evidence to show that a reduction was not appropriate. Evidence was submitted and considered, and the reduction was implemented in a November 2016 rating decision, effective February 1, 2017. Given the chronology of the process described above, the Board finds that the RO complied with the due process 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.

The Board must next address whether the reduction was warranted. A Veteran's disability rating may not be reduced unless the evidence demonstrates that an improvement in the disability has occurred. See 38 U.S.C. § 1155. Additionally, in certain rating reduction cases, the recipients of VA benefits are to be afforded greater protections. These additional protections apply in cases involving ratings that have continued for long periods of time at the same level (that is, five years or more); for ratings in effect for fewer than five years, reduction is warranted if the evidence shows improvement of the condition. See 38 C.F.R. § 3.344 (2017).

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. § 1155 (2012). 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 (2017); 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 (2017). If there is a question as to which evaluation to apply to a veteran's disability, 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 (2017). A rating for hearing loss is determined by a mechanical application of the rating schedule to the numeric designations assigned based on audiometric test results. Lendenmann v. Prinicipi, 3 Vet. App. 345 (1992).

Evaluations of bilateral defective hearing range from noncompensable to 100 percent. To evaluate the degree of disability of service-connected hearing loss, the rating schedule establishes eleven auditory acuity levels ranging from numeric level I for essentially normal acuity, through numeric level XI for profound deafness. See 38 C.F.R. § 4.85, Diagnostic Code 6100 (2017).

Table VI (Numeric Designation of Hearing Impairment Based on Puretone Threshold Average and Speech Discrimination) is used to determine a Roman numeral designation for hearing impairment based on a combination of the percent of speech discrimination and the puretone threshold average. 38 C.F.R. § 4.85(b) (2017). Table VIa (Numeric Designation of Hearing Impairment Based Only on Puretone Threshold Average) is used to determine a Roman numeral designation for hearing impairment based only on puretone threshold average. Table VIa is used when the examiner certifies that use of the speech discrimination test is not appropriate because of language difficulties, inconsistent speech discrimination scores, etc., or when indicated under the provisions of § 4.86. 38 C.F.R. § 4.85(c) (2017).

When the puretone threshold at 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) (2017). When the puretone 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 Roman numeral. Each ear will be evaluated separately. 38 C.F.R. § 4.86(b) (2017).

In this case, the 40 percent evaluation for the Veteran's bilateral hearing loss was assigned based on April 2015 VA examination results. Applying the examination results to Table VI, the Veteran had level VIII hearing in the right ear and level VI hearing in the left ear, which corresponds to a 40 percent evaluation. An exceptional pattern of hearing impairment was not shown during that examination. 

The Veteran's 40 percent evaluation was in effect for less than five years. As noted above, additional procedural safeguards are set forth in 38 C.F.R. § 3.344 for ratings in effect for five years or more. These protections are not for application in this case as the Veteran's 40 percent rating was in effect for less than five years.

In general, the RO's reduction of a rating must have been supported by the evidence on file at the time of the reduction. Pertinent post-reduction evidence favorable to restoring the rating, however, also must be considered. In addressing whether improvement is shown, the comparison point generally is the last examination on which the rating at issue was assigned or continued. See Hohol v. Derwinski, 2 Vet. App. 169 (1992).

The Veteran's 40 percent evaluation was reduced based on the findings of the June 2016 VA examination. Applying the June 2016 VA examination results to Table VI, the Veteran had level IV hearing in the right ear, and level VII hearing in the left ear, which corresponds to a 20 percent rating. An exceptional hearing impairment was not shown at that time. 

In considering whether improvement is demonstrated, the Board acknowledges the Veteran's complaints that his hearing impairment has worsened. The Veteran is competent to describe his perceived hearing difficulties and that he has been fitted with hearing aids. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a veteran is competent to report on that of which he or she has personal knowledge). These reports, however, are not considered sufficient to outweigh the objective testing of record. Indeed, the recent examinations show a consistent and marked improvement in speech discrimination, bilaterally. 

A mechanical application of the audiometric findings on VA examination in June 2016 does not demonstrate entitlement to a 40 percent evaluation for hearing loss. On review, the evidence at the time of the reduction shows that the Veteran's hearing loss disability has indeed improved.

In summary, the record demonstrates that the procedural requirements for a reduction in rating have been met as specified under the provisions of 38 C.F.R. § 3.105(e), and the preponderance of the competent findings substantiates that the reduction in rating from 40 percent to 20 percent for bilateral hearing loss was warranted. The medical evidence on file at the time of the RO's decision to reduce the rating corresponds to this determination. Therefore, the appeal for restoration of a 40 percent rating for that specific disorder must be denied. The preponderance of the evidence is unfavorable to the claim, and under these circumstances the benefit-of- the- doubt doctrine does not apply. See 38 U.S.C. § 5107(b); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990).


ORDER

The reduction of the rating for bilateral hearing loss from 40 percent to 20 percent effective February 1, 2017, was proper, and the appeal as to this issue is denied. 



____________________________________________
CAROLINE B. FLEMING
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs