Citation Nr: 18141002 Decision Date: 10/09/18 Archive Date: 10/09/18 DOCKET NO. 17-29 301 DATE: October 9, 2018 ORDER The reduction of the 50 percent disability rating to 30 percent for bilateral hearing loss, effective from July 1, 2016, was proper; restoration of the 50 percent of the disability rating for bilateral hearing loss from July 1, 2016 is denied. FINDINGS OF FACT 1. An April 2016 rating decision reduced the rating for the service-connected bilateral hearing loss from 50 percent to 30 percent, effective July 1, 2016, and met all due process requirements. 2. As of July 1, 2016, the 50 percent rating for the bilateral hearing loss had been in effect for less than five years. 3. At the time that the rating reduction was effectuated, bilateral hearing loss had undergone actual improvement under the ordinary conditions of life and work. 4. At the time of the reduction, the service-connected bilateral hearing loss was manifested by Level VII hearing acuity in the right ear with a speech recognition score of 64 percent, and Level V hearing acuity in the left ear with a speech recognition score of 80 percent; therefore, the criteria for a 30 percent disability rating for bilateral hearing loss were met. CONCLUSION OF LAW The reduction of the disability rating for the service-connected bilateral hearing loss from 50 percent to 30 percent effective from July 1, 2016 was proper, and the criteria for restoration of the 30 percent are not met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.105, 3.344, 4.85, Diagnostic Code (DC) 6100, 4.86. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran, who is the appellant, had active service in the U.S. Army from March 1953 to December 1955. This matter is on appeal from an April 2016 rating decision. In February 2018, the Veteran testified at a Travel Board hearing before the undersigned. The issue of entitlement to an increased disability rating higher than 30 percent for bilateral hearing loss has been raised by the record in a private treatment record received in March 2017, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ); therefore, the Board does not have jurisdiction over it, and it is again referred to the AOJ for appropriate action. 38 C.F.R. § 19.9 (b). Rating Reduction Criteria and Restoration Analysis In December 2015, the RO proposed to reduce the 50 percent rating for the service-connected bilateral hearing loss to 30 percent. The rating reduction was later implemented in an April 2016 rating decision, effective from July 1, 2016. Initially, the Board observes the RO procedurally complied with the procedural safeguards regarding the provision of notice of the proposed rating reduction and the implementation of that reduction. See 38 C.F.R. § 3.105. The Board will now consider the propriety of the rating reduction. A rating reduction is not proper unless the Veteran’s disability shows actual improvement in his or her ability to function under the ordinary conditions of life and work. See Faust v. West, 13 Vet. App. 342, 349 (2000). In considering the propriety of a reduction, the Board must focus on the evidence available to the RO at the time the reduction was effectuated (although post-reduction medical evidence may be considered in the context of considering whether actual improvement was demonstrated). Dofflemyer v. Derwinski, 2 Vet. App. 277, 281-82 (1992). The Veteran need not demonstrate that retention of the higher evaluation is warranted; rather, it must be shown by a preponderance of the evidence that the reduction was warranted. See Brown v. Brown, 5 Vet. App. 413, 418 (1993). The question of whether a disability has improved involves consideration of the applicable rating criteria. For the rating period at issue, bilateral hearing loss was rated under the criteria found at 38 C.F.R § 4.85, Diagnostic Code 6100. Hearing loss is rated under 38 C.F.R. §§ 4.85, DC 6100, Tables VI, VIA, VII of VA's rating schedule. The Rating Schedule provides a table for rating purposes (Table VI) to determine a Roman numeral designation (I through XI) for hearing impairment, established by a state-licensed audiologist including a controlled speech discrimination test (Maryland CNC), and based upon a combination of the percent of speech discrimination and the pure tone threshold average which is the sum of the pure tone thresholds at 1000, 2000, 3000 and 4000 Hertz, divided by four. Table VII is used to determine the percentage evaluation by combining the Roman numeral designations for hearing impairment of each ear. 38 C.F.R. § 4.85. When the pure tone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) is 55 decibels or more, as in this case, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or Table VI A, whichever results in the higher numeral. Each ear will be evaluated separately. 38 C.F.R. § 4.86(a). In October 2011, the RO awarded the 50 percent rating for bilateral hearing loss based on the October 2011 VA examination results showing that the right ear demonstrated an exceptional pattern of hearing impairment under 38 C.F.R. § 4.86(a) and had an average decibel loss of 75 and a speech recognition score of 38 percent, and the left ear demonstrated an exceptional pattern of hearing impairment under 38 C.F.R. § 4.86(a) with an average decibel loss of 68 and a speech recognition score of 52 percent. Because the October 2011 VA audiometric results revealed Level IX hearing acuity in the right ear and Level VIII hearing acuity in the left ear, a 50 percent disability rating was assigned for bilateral hearing loss in accordance with Table VII under DC 6100. In this case, the Board finds that the weight of the evidence shows actual improvement of the bilateral hearing loss, including under the ordinary conditions of life and work; therefore, the rating reduction was proper, and the criteria for restoration of a 50 percent rating for bilateral hearing loss, effective July 1, 2016, are not met. At the time of the rating reduction, the evidence showed that the rating criteria for a 30 percent rating for bilateral hearing loss were met. At the December 2015 VA audiology examination, pure tone thresholds, in decibels (dB), were recorded as follows: HERTZ 1000 2000 3000 4000 RIGHT 65 75 75 75 LEFT 60 70 65 70 Pure tone threshold averages were 73 dB for the right ear and 66 dB for the left ear. Speech audiometry revealed speech recognition ability of 64 percent for the right ear and 80 percent for the left ear. Under the guidelines set forth in 38 C.F.R. § 4.85 and 4.86(a), the audiometric results from the December 2015 VA audiology examination reveal an exceptional pattern of hearing impairment in the right ear with Level VII hearing acuity in the right ear (with an average decibel loss of 73 and a speech recognition score of 64 percent) when evaluating under Table VI (which is the table that results in the higher numeral), and reveal an exceptional pattern of hearing impairment in the left ear with Level V hearing acuity in the left ear (with an average decibel loss of 66 and a speech recognition score of 80 percent) when evaluating under Table VIA (which is the table that results in the higher numeral). According to Table VII under DC 6100, a 30 percent disability rating was warranted for the level of hearing impairment demonstrated at the December 2015 VA audiology examination. 38 C.F.R. § 4.85. When compared to the evidence of record when the 50 percent rating for bilateral hearing loss was awarded, the evidence at the time of the rating reduction reflected an overall improved hearing as manifested by improved right ear audiometric results at the 3000 Hz (i.e., improved from 80 dB to 75 dB) and 4000 Hz (i.e., improved from 80 dB to 75 dB) frequencies, improved left ear audiometric results at the 1000 Hz (i.e., improved from 65 dB to 60 dB) and 2000 Hz (i.e., improved from 75dB to 70 dB) frequencies, and improved speech recognition ability for both ears (i.e., improved from 38 percent to 64 percent for the right ear and improved from 52 percent to 80 percent for the left ear); therefore, the December 2015 VA audiometric results necessarily reflect an increased ability to function (i.e., to hear) under the ordinary conditions of life and work. The post-reduction August 2016 VA audiology diagnostic study note suggests a worse speech recognition ability (i.e., 58 percent for the right ear and 64 percent in thee left ear) than what is reflected in the December 2015 VA examination report; however, the August 2016 VA medical provider specifically considered the Veteran’s complaints of worsening hearing loss, noted that pure tone thresholds had not changed significantly since recent testing, and ultimately attributed the decreased hearing to the need for hearing aid repair. The October 2016 VA audiology note shows subjective hearing improvement after hearing aid repair and adjustments, so this post-reduction evidence supports the finding that there was actual improvement in bilateral hearing loss under the ordinary conditions of life and work at the time of the rating reduction. Also, a post-reduction March 2017 private audiology report suggests that the rating criteria for a 50 percent rating for bilateral hearing loss may have been met at that time, which was asserted by the Veteran during the Board hearing testimony. At the March 2017 private audiology examination, pure tone thresholds depicted by graph, in decibels (dB), were interpreted by the Board as follows: HERTZ 1000 2000 3000 4000 RIGHT 70 80 75 80 LEFT 75 80 75 75 Pure tone threshold averages were 76 dB for the right ear and 76 dB for the left ear. Speech audiometry revealed speech recognition ability of 52 percent for the right ear and 60 percent for the left ear. Under the guidelines set forth in 38 C.F.R. § 4.85 and 4.86(a), the audiometric results from the March 2017 private audiology examination reveal an exceptional pattern of hearing impairment in the right ear with Level VIII hearing acuity in the right ear (with an average decibel loss of 76 and a speech recognition score of 52 percent) when evaluating under Table VI (which is the table that results in the higher numeral), and reveal an exceptional pattern of hearing impairment in the left ear with Level VIII hearing acuity in the left ear (with an average decibel loss of 76 and a speech recognition score of 60 percent) when evaluating under Table VI (which is the table that results in the higher numeral). According to Table VII under DC 6100, a 50 percent disability rating was warranted for the level of hearing impairment demonstrated at the March 2017 private audiology examination. 38 C.F.R. § 4.85. Nevertheless, it is unclear whether the Maryland CNC test was performed when evaluating the Veteran’s speech recognition ability during the March 2017 private audiology evaluation as required under 38 C.F.R. § 4.85 (a). At the Board hearing, the Veteran expressed some level of certainty that the speech discrimination test used during the March 2017 evaluation was the Maryland CNC test; however, the March 2017 private audiology report does not indicate that the Maryland CNC test was used, and the Veteran has not provided clarification from the March 2017 private audiology examiner on whether the Maryland CNC test was used. Moreover, the pure tone thresholds demonstrated at the March 2017 private audiology evaluation showed greater decibel loss at all frequencies in the left ear and greater decibel loss at all frequencies levels except for the 3000 Hz frequency level (which showed no change in decibel loss) in the right ear when compared to the December 2015 VA audiometric results. When considered together with the August 2016 VA audiology note specifically noting that pure tone thresholds had not changed significantly since the recent testing, this evidence suggests that there may have been a worsening of bilateral hearing loss more than a year after the December 2015 VA examination. This has no bearing on whether there was improvement in the timeframe at issue relative to the rating reduction. For these reasons, the post-reduction evidence is found to show actual improvement of bilateral hearing loss under the ordinary conditions of life and work, at least until March 2017. Based on the evidence above, the Board finds that the preponderance of the evidence demonstrates that the service-connected bilateral hearing loss underwent actual improvement, including under the ordinary conditions of life and work; therefore, at the time of the April 2016 rating decision, the reduction of the 50 percent rating to 30 percent rating for bilateral hearing loss effective from July 1, 2016, was warranted, so the requirements for restoration of the 30 percent disability rating have not been met. See generally 38 C.F.R. § 3.344(a). Eric S. Leboff Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD C. Ferguson, Counsel