Citation Nr: 1803655	
Decision Date: 01/19/18    Archive Date: 01/29/18

DOCKET NO.  15-18 433	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Togus, Maine


THE ISSUE

Entitlement to a rating in excess of 10 percent for bilateral hearing loss.


REPRESENTATION

Appellant represented by:	The American Legion 


WITNESS AT HEARING ON APPEAL

Veteran


ATTORNEY FOR THE BOARD

C. Ryan, Associate Counsel


INTRODUCTION

The Veteran served on active duty from October 1987 to April 2002.

This matter arose to the Board of Veterans' Appeals (Board) from a rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Augusta, Maine.

The Veteran participated in a video conference hearing before the undersigned Veterans Law Judge (VLJ) in December 2015. A transcript of the hearing is associated with the Veteran's record.


FINDINGS OF FACT

Resolving all reasonable doubt in the Veteran's favor, his hearing loss did not improve under the ordinary conditions of work and life from July 1, 2014.


CONCLUSION OF LAW

The criteria for a rating reduction to 10 percent have not been met; the 30 percent rating is restored.


REASONS AND BASES FOR FINDINGS AND CONCLUSION

The Veteran contends that a prior 30 percent schedular rating should be restored for bilateral hearing loss.  After carefully reviewing the record, the Board finds that a rating reduction was improper.

Disability evaluations are determined by evaluating the extent to which a Veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule).  38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10.

If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower evaluation will be assigned.  38 C.F.R. § 4.7.  However, the evaluation of the same disability under various diagnoses, known as pyramiding, is to be avoided.  38 C.F.R. § 4.14.  Any reasonable doubt regarding a degree of disability is resolved in favor of the Veteran.  38 C.F.R. § 4.3.

The Veteran's entire history is to be considered when making disability evaluations.  See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995).

Evaluations of bilateral defective hearing 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 hearing threshold level measured by puretone audiometry tests in the frequencies of 1000, 2000, 3000 and 4000 cycles per second (Hertz).  To evaluate the degree of disability for bilateral service-connected defective hearing, the schedule establishes 11 auditory hearing acuity levels designated from Level I (for essentially normal hearing acuity) through Level XI (for profound deafness).  38 C.F.R. § 4.85, Tables VI and VII, Diagnostic Code 6100.  Disability ratings for hearing loss are derived from a mechanical application of the rating schedule to the numeric designations resulting from audiometric testing.  See Lendenmann v. Principi, 3 Vet. App. 345 (1992).  The evaluations derived from the schedule are intended to make allowance for improvement by hearing aids.  38 C.F.R. § 4.85, Diagnostic Code 6100.

Exceptional patterns of hearing impairment are to be evaluated in accordance with the provisions of 38 C.F.R. § 4.86.  That regulation states that:

(a) 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.

(b) 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.

An examination for hearing impairment for VA purposes must be conducted by a state-licensed audiologist and must include a controlled speech discrimination test (Maryland CNC) and a puretone audiometry test.  38 C.F.R. § 4.85(a).

Initially, the Board notes that the Veteran's pre-reduction disability rating was in effect for less than five years at the time of the rating reduction.  Therefore, the provisions of 38 C.F.R. § 3.344(a), which set forth regulatory requirements for evaluations in effect for five or more years, are not for application.  See 38 C.F.R. § 3.344(c).  Instead, the provisions of 38 C.F.R. § 3.344(c) are for application.  38 C.F.R. § 3.344(c) provides that, for disabilities which have not become stabilized and are likely to improve, reexaminations disclosing improvement in these disabilities will warrant a reduction in rating.

In any rating reduction case, the Board is required to ascertain, based upon review of the entire record, whether the evidence reflects an actual change in the disability, whether the examination reports reflecting such change are based upon thorough examination, and whether any improvement actually reflects improvement in the Veteran's ability to function under the ordinary conditions of life and work.  Brown v. Brown, 5 Vet. App. 413, 420 (1993).  In determining whether a reduction is proper, the Board must focus on evidence available to the RO at the time the reduction was effectuated, although post-reduction medical evidence may be considered in the context of evaluating whether the condition had actually improved.  Dofflemyer v. Derwinski, 2 Vet. App. 277, 281-82 (1992).  However, post-reduction evidence may not be used to justify an improper reduction.

A review of the evidence reveals the following:

The VA rated the Veteran's hearing loss as 30 percent disabling as of April 4, 2011. Three years later, the VA reduced the Veteran's disability rating to 10 percent, as of July 1, 2014, based upon a November 2013 Compensation and Pension (C&P) examination showing improvement in the Veteran's hearing.

The November 2013 VA audiological examination revealed puretone thresholds, in decibels, as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT 
100
65
75
75
75
LEFT 
15
15
30
30
45

The average decibel loss in the right ear was 78, and the average decibel loss in the left ear was 30. The Veteran's speech recognition score in his right ear was 0 percent, and his left ear speech recognition score was 96 percent.

Following that test, the Veteran submitted statements stating that he believed the test did not appropriately measure his hearing abilities.

The April 2014 VA audiological examination revealed puretone thresholds, in decibels, as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT 
95
100
95
95
100
LEFT 
20
30
35
45
65

The average decibel loss in the right ear was 98, and the average decibel loss in the left ear was 44. The Veteran's speech recognition score in his right ear was 0 percent, and his left ear speech recognition score was 94 percent.

An August 2014 VA audiological examination revealed puretone thresholds, in decibels, as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT 
105+
100
100
105
105+
LEFT 
25
30
35
40
50

The average decibel loss in the right ear was 103, and the average decibel loss in the left ear was 39. The Veteran's speech recognition score in his right ear was 0 percent, and his left ear speech recognition score was 96 percent.

At the December 2015 hearing, the Veteran testified that his hearing had not improved at all, and that the test results did not reflect the true extent of his hearing loss. Moreover, several doctors stated that the Veteran's profound hearing loss in his right ear made it difficult to test his hearing properly.

After reviewing the evidence of record, the Board finds that the Veteran's 30 percent disability rating should be restored. At the hearing, the Veteran credibly testified that there has been no actual change in the disability. Moreover, he stated that there have been no changes in his ability to function under the ordinary conditions of life and work. Accordingly, given the Veteran's credible insistence that his hearing has not improved, and the Veteran's assertions that the tests have not accurately captured the extent of his hearing loss, the Board finds them less than persuasive, and his former 30 percent rating is restored.









ORDER

The Veteran's 30 percent rating for bilateral hearing loss is restored, effective July 1, 2014.



____________________________________________
BRADLEY W. HENNINGS
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs