Citation Nr: 18142760 Decision Date: 10/17/18 Archive Date: 10/16/18 DOCKET NO. 17-41 759 DATE: October 17, 2018 ORDER The reduction in rating for the Veteran’s hearing loss from 30 percent to 10 percent was not proper and the 30 percent rating is restored effective June 1, 2017. Since February 16, 2017, a disability rating of 40 percent for hearing loss is granted, subject to the law and regulations governing the payment of monetary benefits. REMANDED Entitlement to a rating in excess of 40 percent for hearing loss is remanded. FINDINGS OF FACT 1. A March 2017 rating decision reduced the evaluation for the Veteran’s bilateral hearing loss from 30 percent to 10 percent effective June 1, 2017, after meeting all due process requirements in executing such a reduction. 2. The Veteran’s bilateral hearing loss did not show actual improvement under the normal circumstances of life and work. 3. Since February 16, 2017, the Veteran has had at least Level VII hearing in the right ear and left ears. CONCLUSIONS OF LAW 1. The reduction in the rating for the Veteran’s bilateral hearing loss from 30 percent to 10 percent was not proper, and the 30 percent rating is restored effective June 1, 2017. 38 U.S.C. §§ 1155; 38 C.F.R. §§ 3.105, 4.85 Diagnostic Code (DC) 6100. 2. Since February 16, 2017, the criteria for a 40 percent rating have been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.85, 4.86, Diagnostic Code (DC) 6100. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Air Force from May 1961 to December 1970. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a March 2017 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran presented sworn testimony at a hearing before the undersigned in March 2018. 1. The reduction in rating for the Veteran’s hearing loss from 30 percent to 10 percent effective was not proper and the 30 percent rating is restored effective June 1, 2017. The Veteran contends that the reduction of his rating for bilateral hearing loss from 30 percent to 10 percent effective June 1, 2017 was improper. He testified that his hearing has not gotten any better and, without hearing aids, he is unable to talk to his wife or hear the television. He stated that his hearing is worse when in a crowd. See March 2018 Board hearing transcript, pp. 6, 16. He also testified that at times during the hearing examinations, he had to guess at words, and that he has good days and bad days in regard to his hearing loss. Id., p. 10; Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). The Veteran’s wife also testified that the Veteran’s hearing loss has continued to worsen over the years, he is unable to hear the television, his hearing is worse in crowds, and that she must repeat everything three times for the Veteran to hear her. See March 2018 Board hearing transcript, pp. 6-7. In October 2016, the RO proposed to reduce the Veteran’s evaluation for bilateral hearing loss from 30 percent to 10 percent. The reduction was accomplished in a March 2017 rating decision, and made effective June 1, 2017. The RO complied with the procedural safeguards regarding the manner which the Veteran was given notice of the proposed rating reduction and the implementation of the reduction. See 38 C.F.R. § 3.105. A rating reduction is not proper unless the Veteran’s disability shows actual improvement in his ability to function under the ordinary conditions of life and work. See Faust v. West, 13 Vet. App. 342, 349 (2000). VA has the burden of establishing that the disability has improved. A rating reduction case focuses on the propriety of the reduction and is not the same as an increased rating issue. See Peyton v. Derwinski, 1 Vet. App. 282, 286 (1991). 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 question of whether a disability has improved involves consideration of the applicable rating criteria. Under the VA rating schedule, hearing impairment is evaluated based on audiological testing, including a pure tone audiometry test and the Maryland CNC controlled speech discrimination test. 38 C.F.R. § 4.85. To evaluate the degree of disability from defective hearing, the rating schedule establishes eleven auditory acuity levels from level I for essentially normal acuity through level XI for profound deafness. 38 C.F.R. § 4.85. Table VI is used to assign a Roman numeral designation for hearing impairment based on a combination of the percent of speech discrimination and the pure tone threshold average. 38 C.F.R. § 4.85(b). The pure tone threshold average is the average of the pure tone thresholds, in decibels, at 1000, 2000, 3000 and 4000 Hertz [Hz], shown on a pure tone audiometry test. 38 C.F.R. § 4.85. There are exceptional patterns of hearing impairment when pure tone thresholds at the 1000, 2000, 3000, and 4000 Hertz frequencies are 55 decibels or more. See 38 C.F.R. § 4.86. Under 38 C.F.R. §4.86, each ear is to be evaluated separately to determine if an exceptional pattern of hearing impairment exists. Id. When an exceptional pattern of hearing loss exists, the Board is to evaluate hearing based on pure tone threshold alone under Table VIA if doing so would benefit the Veteran. Then, Table VII is used to determine the percentage evaluation by combining the Roman numeral designations for hearing impairment for each ear. 38 C.F.R. § 4.85(e). The previously assigned 30 percent evaluation was awarded by a November 2015 rating decision and effective August 10, 2015. This evaluation was based upon an October 2015 VA audiological examination, which showed that the Veteran exhibited pure tone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 30 55 65 75 85 LEFT 35 60 65 75 80 The average pure tone threshold from 1000 to 4000 Hz was 70 decibels in the right ear and 70 in the left ear. The speech recognition scores on the Maryland CNC test was 90 percent in the right ear and 86 percent in the left ear. Assessing hearing loss based on pure tone threshold alone under Table VIA is most beneficial to the Veteran. Under Table VIA, the Veteran has level VI hearing loss in the right and left ears. When level VI hearing loss in the right ear is paired with his level VI hearing loss in the left ear, the Veteran’s hearing loss is evaluated at 30 percent disabling. See Table VII. At the examination, the Veteran contended that he had trouble hearing some voices, he had to raise the volume on the television and telephone, and he had more trouble hearing when there was background noise. The reduction in the Veteran’s evaluation for his service-connected bilateral hearing loss from 30 percent to 10 percent was based upon an August 2016 VA examination, which showed that the Veteran exhibited pure tone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 35 50 70 80 90 LEFT 40 55 75 85 90 The average pure tone threshold from 1000 to 4000 Hz was 73 decibels in the right ear and 76 decibels in the left ear. The speech recognition scores on the Maryland CNC test were 92 percent in the right ear and 64 percent in the left ear. An exceptional pattern of hearing under 38 C.F.R. § 4.86 has not been shown on the right ear at this examination as the right ear pure tone thresholds is only 50 decibels at the 1000 Hz. Accordingly, Table VI is used for the evaluation of right ear hearing loss. Pursuant to Table VI, the application of the pure tone threshold average levels and speech recognition ability (percentage of discrimination) results in level II hearing loss in the right ear. In regard to the left ear, assessing hearing loss based on Table VI is most beneficial to the Veteran, and results in level VII hearing loss in the left ear. When level II hearing loss in the right ear is paired with his level VII hearing loss in the left ear, the Veteran’s hearing loss is evaluated at 10 percent disabling. See Table VII. At the VA examination, the Veteran continued to report difficulty hearing the television, soft speech, on the telephone, and in the presence of background noise. He contended he had more difficulty if the speaker was not facing him and asked people to repeat themselves frequently. A November 2016 audiogram conducted by the George E. Wahlen VAMC showed that the Veteran’s hearing loss, measured by pure tone thresholds, was more severe than the August 2016 VA examination had indicated. Accordingly, an additional VA audiological examination was provided in February 2017. The February 2017 VA examination showed that the Veteran exhibited pure tone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 60 70 80 90 105 LEFT 60 70 75 90 95 The average pure tone threshold from 1000 to 4000 Hz was 86 decibels in the right ear and 83 decibels in the left ear. The speech recognition scores on the Maryland CNC test were 40 percent in the right ear and 24 percent in the left ear. Assessing hearing loss under Table VI is most beneficial to the Veteran. Application of these pure tone threshold average levels and speech recognition ability (percentage of discrimination) using Table VI, results in level X hearing loss in the right ear and level XI hearing loss in the left ear. When level X hearing loss in the right ear is paired with his level XI hearing loss in the left ear, the Veteran’s hearing loss is evaluated as 90 percent disabling. See Table VII. The Board acknowledges that the February 2017 VA examiner opined that the use of the word recognition score was not appropriate for this Veteran because of language difficulties, cognitive problems, inconsistent word recognition scores, etc., that make combined use of pure tone average and word recognition scores inappropriate. However, the examiner noted that the pure tone test results were valid for rating purposes and the examination showed that the Veteran met the requirements for exceptional patterns of hearing impairment in both ears since pure tone thresholds at the 1000, 2000, 3000, and 4000 Hertz frequencies were 55 decibels or more, and therefore, hearing could be assessed under Table VIA, which uses only pure tone threshold average. See 38 C.F.R. § 4.86. Assessing hearing loss under Table VIA, results in level VIII hearing loss in the right ear and level VII hearing loss in the left ear. When level VIII hearing loss in the right ear is paired with his level VII hearing loss in the left ear, the Veteran’s hearing loss is evaluated as 40 percent disabling. See Table VII. At the examination, the Veteran reported a difficulty hearing when the speaker was not facing him and difficulty hearing in group situations where there was more than one conversation going on. The Veteran also submitted an October 2017 private audiogram, which shows unmasked, air conduction pure tone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 45 60 70 80 100 LEFT 45 65 70 80 95 The average pure tone threshold from 1000 to 4000 Hz was 78 decibels in the right ear and 78 decibels in the left ear. The test showed speech discrimination ability with only 52 percent word recognition in the audio booth. It is unclear whether the Maryland CNC test was used. However, whether applying the pure tone threshold average levels and speech recognition ability (percentage of discrimination) using Table VI or assessing hearing loss based on pure tone threshold alone under Table VIA, both result in an evaluation of at least 40 percent for the Veteran’s bilateral hearing loss. See Table VII. Based on the February 2017 and October 2017 audiogram results noted above, and the credible contentions of the Veteran and his wife, the Board finds that the weight of the evidence does not establish sustained improvement in the Veteran’s hearing loss disability under the ordinary conditions of life and work. Accordingly, the 30 percent rating for bilateral hearing loss is restored effective June 1, 2017. 2. Since February 16, 2017, a disability rating of 40 percent for hearing loss is granted. The Veteran contends that a rating in excess of 30 percent is warranted for his hearing loss. See July 2016 claim form; April 2017 notice of disagreement; Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). The Veteran was provided a VA examination in February 2017. As noted above, the February 2017 VA examiner opined that the use of the word recognition score was not appropriate for this Veteran because of language difficulties, cognitive problems, inconsistent word recognition scores, etc., that make combined use of pure tone average and word recognition scores inappropriate, but that pure tone test results were valid for rating purposes. Further, the examination showed that the Veteran met the requirements for exceptional patterns of hearing impairment in both ears. As such, the Board finds that that it is appropriate to assess the Veteran’s hearing loss under Table VIA, which uses only pure tone threshold average. See 38 C.F.R. § 4.86. Under Table VIA, the Veteran has level VIII hearing loss in the right ear and level VII hearing loss in the left ear. When level VIII hearing loss in the right ear is paired with his level VII hearing loss in the left ear, the Veteran’s hearing loss is evaluated as 40 percent disabling. See Table VII. These results are consistent with the October 2017 private audiogram results, which result in an evaluation of at least 40 percent for the Veteran’s bilateral hearing loss. Id. Accordingly, the Board finds that a rating of 40 percent is warranted effective February 16, 2017. REASONS FOR REMAND On the Veteran’s August 2017 VA Form 9, he contends that his hearing has gotten worse. The most recent VA hearing loss examination was in February 2017. A contemporaneous VA examination is needed to properly assess the current severity of the Veteran’s condition. See Palczewski v. Nicholson, 21 Vet. App. 174, 181 (2007); Snuffer v. Gober, 10 Vet. App. 400, 403 (1997). Further, at the March 2018 Board hearing, the Veteran’s representative contended that a new hearing examination would take place in the following month. See March 2018 Board hearing transcript, p. 8. The claims file does not contain a hearing examination subsequent to the March 2018 Board hearing. Any additional evidence should be obtained on remand. The matter is REMANDED for the following action: 1. Contact the Veteran and request that he identify any outstanding, pertinent VA and/or private treatment records related to his hearing loss. After obtaining the necessary authorization forms from the Veteran, obtain these records and associate them with claims file. Any negative response should be in writing and associated with the claims file. 2. After obtaining any outstanding treatment records regarding the Veteran’s bilateral hearing loss, schedule a VA examination, with an examiner other than the August 2016 VA examiner, to determine the severity of that disability. The Veteran’s claims file should be made available to and reviewed by the examiner and all necessary tests should be performed. The examiner should discuss the impact of the hearing loss on the Veteran occupationally and socially. Michael J. Skaltsounis Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD C. Samuelson, Counsel