Citation Nr: 1805457	
Decision Date: 01/26/18    Archive Date: 02/07/18

DOCKET NO.  14-44 202	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Roanoke, Virginia


THE ISSUE

Propriety of a reduction from a 40 percent rating to a 30 percent rating for bilateral hearing loss, effective September 1, 2013.


REPRESENTATION

Appellant represented by:	Virginia Department of Veterans Services


ATTORNEY FOR THE BOARD

A. Creegan, Associate Counsel






INTRODUCTION

The Veteran served on active duty in the United States Air Force from October 1951 to October 1971.

These matters are before the Board of Veterans' Appeals (Board) on appeal from a June 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia.

This case was previously before the Board in September 2017, at which time it was remanded for further development. The directives having been substantially complied with, the matter again is before the Board. D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Stegall v. West, 11 Vet. App. 268, 271 (1998).

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) (2012).


FINDINGS OF FACT

1. At the time of the effective date of reduction, September 1, 2013, the 40 percent disability rating for the Veteran's service-connected bilateral hearing loss had been in effect for less than five years.

2. At the time of the June 2013 rating decision reducing the rating for the Veteran's bilateral hearing loss to 30 percent, the evidence showed that the Veteran's hearing impairment had improved under the ordinary conditions of life.


CONCLUSION OF LAW

The rating reduction for bilateral hearing loss from 40 percent to 30 percent, effective September 1, 2013, was proper. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 3.105(e), 3.344, 4.85, 4.86, Diagnostic Code 6100 (2017).
REASONS AND BASES FOR FINDINGS AND CONCLUSION

 The Veteran has not raised any issues with the duty to notify or duty to assist. See Scott v McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board...to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to duty to assist argument).

In rating reductions, when VA contemplates reducing an evaluation for a veteran's service-connected disability or disabilities, it must follow specific procedural steps prior to such discontinuance. 38 C.F.R. § 3.105(e). As enumerated in 38 C.F.R. § 3.105(e), "[w]here the reduction in evaluation of a service-connected disability or employability status 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." Id.  In addition, "[t]he beneficiary will be notified at his or her latest address of record of the contemplated action and furnished detailed reasons therefore, and will be given 60 days for the presentation of additional evidence to show that compensation payments should be continued at their present level." Id.  The beneficiary also will receive notification that "he or she will have an opportunity for a pre-determination hearing," 38 C.F.R. § 3.105(i), and thereafter, a "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); 3.500(r). 

With respect to the matter of restoration of a 40 percent rating for bilateral hearing loss, the RO notified the Veteran of the proposed reduction in a February 2013 letter. The letter informed him of the reasons and bases for the proposed reduction and the type of information or evidence he could submit in response. He was also informed of his rights to a personal hearing and representation and that unless additional evidence was received within 60 days, his hearing loss evaluation would be reduced. Therefore, the Board finds that the RO also complied with the additional notification requirements set forth in 38 C.F.R. § 3.105(e). 

The Board finds the appeal may be considered on the merits.

A Veteran's disability will not be reduced unless an improvement in the disability is shown to have occurred. 38 U.S.C. § 1155. In this regard, not only must it be determined that an improvement in a disability has actually occurred, but also that the improvement actually reflects an improvement in the Veteran's ability to function under the ordinary conditions of life and work. Brown v. Brown, 5 Vet. App. 413, 420-21 (1993); Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991).

In addition to satisfying the procedures outlined above, the RO must gather evidence to establish that a rating reduction is proper. Pertinent to the instant case, according to 38 C.F.R. § 3.344(c), where a rating or ratings have been in effect for less than five years, as here, "[r]examinations disclosing improvement, physical or mental, in these disabilities will warrant reduction in rating." 38 C.F.R. § 3.344(c).

The Veteran was granted service connection for his bilateral hearing loss in January 2004, prior to which he had a noncompensable rating. In August 2012, the Veteran submitted an application for an increased rating for bilateral hearing loss. He was provided with a VA examination in September 2012 after which the RO increased the rating to 40 percent. 

The Veteran submitted a lay statement describing the effects of his hearing loss in October 2012, which the RO processed as a claim for further increase. An examination was provided in January 2013. As a result of this examination, the RO proposed a decrease in rating to 30 percent, which took effect September 1, 2013. 

Both examinations took place within a four month span. There is no evidence to suggest that the Veteran's hearing substantially changed between September 2012 and January 2013, and the Veteran did not allege any difference in function between the two. Therefore, the Board finds it is necessary to evaluate both examinations to determine which is more probative of the Veteran's actual state of hearing loss at the time. 

The rating criteria for hearing loss are set forth 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). Regulations specify that 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. 

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 nine 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 and the statement of the case) 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 (1,000, 2,000, 3,000 and 4,000 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 1,000 hertz and 70 decibels or more at 2,000, 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 evaluated to the next higher Roman numeral.

The September 2012 examination results were as follows:




HERTZ



1000
2000
3000
4000
Average
RIGHT
5
60
75
90
58
LEFT
40
60
75
5
45

Speech recognition was 40 percent in the right ear and 64 percent in the left ear, as measured by the Maryland CNC test.

These results corresponded to a Level IX in the right ear and a Level V in the left ear, which combined for a 40 percent rating.

Findings from the January 2013 examination were as follows:




HERTZ



1000
2000
3000
4000
Average
RIGHT
65
70
80
85
75
LEFT
60
75
80
85
75

Speech recognition was 88 percent in both ears, as measured by the Maryland CNC test. The examiner noted that the initial speech recognition score was 0 percent in both ears. Therefore, a modified performance intensity function was obtained. The best performance level for both ears was 70 dB, which is the level at which the speech recognition scores were obtained. 

These results corresponded to a Level VI in both ears, using Table VIa. With both ears at Level VI, the appropriate rating is 30 percent. 

There are no indications that either examiner was not competent or that either examination was conducted improperly. However, the Board notes that the main point of difference between the two examinations is the speech recognition score, which is much higher on the January 2013 examination, leading to a lower rating. The examiner for the January 2013 examination provided an in depth explanation of how the speech recognition score was obtained. No explanation or comment of any kind was provided on the September 2012 examination. Therefore, the Board finds the January 2013 examination more probative as to the state of the Veteran's hearing loss. 

In considering the propriety of a reduction, the Board must focus on the evidence available to the RO at the time that it effectuated the reduction, although the Board may consider post-reduction medical evidence in the context of evaluating whether the condition had demonstrated actual improvement. Cf. Dofflemyer v. Derwinski, 2 Vet. App. 277, 281-82 (1992). 

The Veteran received another VA examination in July 2017. The results from that examination were as follows:




HERTZ



1000
2000
3000
4000
Average
RIGHT
55
70
75
85
71
LEFT
55
75
80
100
78

These results correspond to a Level VI in the right ear and a Level VII in the left ear, using Table VIa. A Level VI in the better ear and a Level VII in the worse ear results in a 30 percent rating. 

These results are consistent with the results of the January 2013 examination and indicate that the January 2013 examination was more indicative of the state of the Veteran's hearing loss than was the September 2012 examination. 

The Board remanded in September 2017 to obtain the results of an examination conducted in December 2014. These results were obtained, but the examination report notes that they are "not adequate for rating purposes." 

As the January 2013 examination resulting in a 30 percent rating was more thorough than the September 2012 examination, and as the July 2017 examination also indicated a 30 percent rating is appropriate, the weight of the evidence suggests that the Veteran's hearing loss was more accurately evaluated at 30 percent. Accordingly, the Board finds that the reduction of the Veteran's bilateral hearing loss rating from 40 percent to 30 percent was proper. 



ORDER

The rating reduction from 40 percent to 30 percent for bilateral hearing loss, effective September 1, 2013, was proper; restoration is denied.




____________________________________________
J.W. FRANCIS
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs