Citation Nr: 18147894 Decision Date: 11/06/18 Archive Date: 11/06/18 DOCKET NO. 16-44 967 DATE: November 6, 2018 ORDER Restoration of the 10 percent rating for bilateral sensorineural hearing loss effective April 1, 2017, is granted. Entitlement to a rating in excess of 10 percent for bilateral sensorineural hearing loss is denied. FINDINGS OF FACT 1. A January 2017 rating decision implemented the disability rating reduction from 10 percent to noncompensable for bilateral hearing loss, effective April 1, 2017. At that time, the 10 percent rating had been in effect for more than five years. 2. The AOJ rating decision which reduced a disability rating for bilateral hearing loss from 10 percent to noncompensable effective April 1, 2017, did not reflect consideration of the provisions of 38 C.F.R. § 3.344 and is void ab initio. 3. During the course of the appeal, the Veteran has demonstrated at worse level II hearing acuity bilaterally. CONCLUSIONS OF LAW 1. The reduction of the rating for service-connected bilateral sensorineural hearing loss from 10 percent to noncompensable was improper and restoration of the 10 percent disability rating effective April 1, 2017 is warranted. 38 U.S.C. §§ 1155, 5103 (2012); 38 C.F.R. §§ 3.102, 3.105, 3.344 (2018). 2. The criteria for a rating in excess of 10 percent for bilateral sensorineural hearing loss have not been met. 38 U.S.C. § 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.3, 4.7, 4.10, 4.85, 4.86, Diagnostic Code 6100. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1966 to November 1968. A claim stemming from a rating reduction action must be phrased as whether the reduction was proper, not whether the appellant is entitled to an increased rating. See Dofflemyer v. Derwinski, 2 Vet. App. 277, 279-80 (1992). In this case, after the issue of entitlement to an increased rating for bilateral hearing loss was certified to the Board, the AOJ issued a January 2017 rating decision that reduced the Veteran’s rating to noncompensable for part of the period on appeal. Thus, the Board has rephrased the issues on the title page to reflect the separate increased rating and rating reduction issues. See generally Fenderson v. West, 12 Vet. App. 119, 126 (1999). 1. Restoration of the 10 percent rating for bilateral sensorineural hearing loss effective April 1, 2017 When determining whether a reduction was proper, there are two sequential questions that must be addressed. First, whether the AOJ satisfied the procedural requirements for a reduction, as set forth in 38 C.F.R. § 3.105. If so, the second question concerns whether the evidence shows an improvement in the severity of the service-connected disability, as defined in 38 C.F.R. § 3.344. With regard to the initial question, the Board observes that the rating reduction did not result in any reduction of VA compensation being paid to the Veteran as he was granted a total disability evaluation based on individual unemployability due to service connected disabilities, effective March 21, 2016. Thus, the procedural protections of 38 C.F.R. § 3.105(e) do not apply. Stelzel v. Mansfield, 508 F.3d 1345, 1349 (Fed. Cir. 2007) (holding that VA was not obligated to provide a Veteran with sixty days’ notice before making a disability ratings decision effective if the decision did not reduce the overall compensation paid to the Veteran). In cases where a rating has been in effect for less than 5 years, the disability in question has not become stabilized and is likely to improve, reexaminations disclosing improvement, physical or mental, in these disabilities will warrant a rating reduction. 38 C.F.R. § 3.344(c). In this case, the Veteran’s ten percent disability rating was awarded effective March 23, 2007. The rating was reduced effective April 1, 2017. Accordingly, 38 C.F.R. § 3.344(c) does not apply. Without regard to whether a rating has been in effect for five years or more, a rating reduction is warranted only where the evidence demonstrates an actual improvement in disability. See 38 C.F.R. § 4.13. In other words, the provisions of 38 C.F.R. §§ 4.2 and 4.10 require that “in any rating-reduction case 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 (1993); Faust v. West, 13 Vet. App. 342, 350 (2000). Moreover, reports of examination must be interpreted in the light of the whole evidentiary history and reconciled with the various reports into a consistent picture, so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2. In short, “the Board must ‘establish, by a preponderance of the evidence and in compliance [with] 38 C.F.R. § 3.344, that a rating reduction is warranted.’” Green v. Nicholson, 21 Vet. App. 512 (2006). If there is any doubt, the rating in effect will be continued. See Brown, 5 Vet. App. at 417-18. In general, the AOJ’s reduction of a rating must have been supported by evidence on file at the time of the reduction. Pertinent post-reduction evidence favorable to restoring the rating, however, also must be considered. See Dofflemeyer, 2 Vet. App. 277 (1992). 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). Upon consideration of the evidence of record under the laws and regulations as set forth above, the Board concludes that reduction of the disability evaluation for the Veteran’s service-connected bilateral hearing loss from ten percent to noncompensable was improper. The initial ten percent evaluation was assigned based on the findings of an August 2007 VA examination, prior to the time period now on appeal. In May 2014, the Veteran submitted a claim for an increased rating of his bilateral hearing loss. As discussed in the section below, the Veteran’s bilateral hearing loss was reevaluated in February 2015 and April 2016. After the April 2016 VA examination, the AOJ proposed a reduction based on the measured puretone thresholds and the speech discrimination score. See August 2016 Rating Decision. In a January 2017 rating decision, the AOJ reduced the rating to noncompensable, effective April 1, 2017. However, in a March 2015 notice of disagreement, the Veteran described how his hearing loss affected his ability to function, including difficulty communicating with friends and family and difficulty functioning in recreational settings. While the April 2016 VA examination contained audiometric readings and the examiner noted the Veteran’s statements, the examiner did not offer an opinion regarding the Veteran’s ability to function under the ordinary conditions of life and work. Additionally, neither the January 2017 or August 2016 rating decisions addressed the Veteran’s ability in this regard. After a thorough review of the evidence, the Board finds that the AOJ failed to properly make findings in this case as to both prongs of the Faust test for rating reduction cases. The adjudicatory documents do not demonstrate that the AOJ made a finding with respect to whether the improvement noted reflected “an improvement in the Appellant’s ability to function under the ordinary conditions of life and work” to support the rating reduction. Without such explicit findings, the Board cannot properly analyze the ratings-reduction issue currently on appeal. Accordingly, the action to reduce the rating is void and the ten percent evaluation for bilateral hearing loss is restored effective April 1, 2017, as though the reduction had not occurred. See Faust, supra. In so reaching that conclusion, the Board has appropriately applied the benefit of the doubt doctrine in this case. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. 2. A rating in excess of 10 percent for bilateral sensorineural hearing loss 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 (Schedule). 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify various disabilities and the criteria for specific ratings. Relevant regulations do not require that all cases show all findings specified by the Schedule; however, findings sufficient to identify the disease and the resulting disability and, above all, coordination of the rating with impairment of function will be expected in all cases. 38 C.F.R. §§ 4.7, 4.21. If two disability 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 rating will be assigned. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining will be resolved in favor of the veteran. 38 C.F.R. § 4.3. In establishing an appropriate initial assignment of a disability rating, the proper scope of evidence includes all medical evidence submitted in support of the veteran’s claim. Fenderson v. West, 12 Vet. App. 119 (1999). In cases where an assigned disability rating has been challenged or appealed, it is possible for a veteran to receive a staged rating. A staged rating is an award of separate percentage evaluations for separate periods, based on the facts found during the appeal period. Id. at 126-28; see also Hart v. Mansfield, 21 Vet. App. 505 (2007) (in determining the present level of a disability for any increased evaluation claim, the Board must consider staged ratings). If two disability 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 rating will be assigned. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining will be resolved in favor of the veteran. 38 C.F.R. § 4.3. Per 38 C.F.R. § 4.85, 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. Examinations are conducted without the use of hearing aids. Table VI, “Numeric Designation of Hearing Impairment Based on Puretone Threshold Average and Speech Discrimination,” is used to determine a Roman numeral designation (I through XI) for hearing impairment based on a combination of the percent of speech discrimination (horizontal rows) and the puretone threshold average (vertical columns). The Roman numeral designation is located at the point where the percentage of speech discrimination and puretone threshold average intersect. 38 C.F.R. § 4.85. Table VIA, “Numeric Designation of Hearing Impairment Based Only on Puretone Threshold Average,” is used to determine a Roman numeral designation (I through XI) for hearing impairment based only on the puretone threshold average. Table VIA will be 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 38 C.F.R. § 4.86. “Puretone threshold average,” as used in Tables VI and VIA, is the sum of the puretone thresholds at 1000, 2000, 3000 and 4000 Hertz, divided by four. This average is used in all cases (including those in 38 C.F.R. § 4.86) to determine the Roman numeral designation for hearing impairment from Table VI or VIA. Table VII, “Percentage Evaluations for Hearing Impairment,” is used to determine the percentage evaluation by combining the Roman numeral designations for hearing impairment of each ear. The horizontal rows represent the ear having the better hearing and the vertical columns the ear having the poorer hearing. The percentage evaluation is located at the point where the row and column intersect. The Board further notes the United States Court of Appeals for Veterans Claims has held that, “in addition to dictating objective test results, a VA audiologist must fully describe the functional effects caused by a hearing disability in his or her final report.” Martinak v. Nicholson, 21 Vet. App. 447, 455 (2007). In this case, the Veteran seeks entitlement to a rating in excess of 10 percent for bilateral hearing loss. During the relevant time period, the Veteran has been evaluated for bilateral hearing loss on two occasions. At the February 2015 VA audiological examination, puretone thresholds, in decibels, were as follows: HERTZ A 1000 B 2000 C 3000 D 4000 A+B+C+D AVG. RIGHT 35 55 70 65 56.25 LEFT 45 65 65 75 62.5 The puretone threshold average was 56.25 decibels in the right ear, and 62.5 decibels in the left ear. The Maryland CNC controlled speech discrimination test scores were 96 percent in the right ear and 94 percent in the left ear. According to Table VI, the right ear is rated at level I and the left ear at level II. Applying these results to Table VII, the Veteran’s disability is rated as noncompensable. These test results do not show that the Veteran had an exceptional pattern of hearing impairment under 38 C.F.R. § 4.86. At the April 2016 VA audiological examination, puretone thresholds, in decibels, were as follows: HERTZ A 1000 B 2000 C 3000 D 4000 A+B+C+D AVG. RIGHT 30 55 60 55 50 LEFT 30 65 65 60 55 The puretone threshold average was 50 decibels in the right ear, and 55 decibels in the left ear. The Maryland CNC controlled speech discrimination test scores were 90 percent in the right ear and 84 percent in the left ear. According to Table VI, the right ear is rated at level II and the left ear at level II. Applying these results to Table VII, the Veteran’s disability is rated as noncompensable. These test results do not show that the Veteran had an exceptional pattern of hearing impairment under 38 C.F.R. § 4.86. In his March 2015 notice of disagreement, the Veteran stated that he could not communicate with family and friends, and he had to watch television with the sound at a level that is uncomfortable for others in the room. Despite this statement, the Board notes that the Veteran has not raised a challenge as to the examiner’s competency. The Board is entitled to assume the competence of a VA examiner unless that competence is challenged. Sickels v. Shinseki, 643 F.3d 1362, 1366 (Fed. Cir. 2011). The Board holds that the objective findings of a medical professional are of greater probative value than the lay statements reflected in the record. The Board also observes that the Veteran’s description of an inability to hear and discriminate speech has been measured according to puretone averages and speech discrimination, and is contemplated by the schedular criteria. Doucette v. Shulkin, 28 Vet. App. 366 (2017). After reviewing the evidence in the record, the Board finds that the criteria for a compensable rating in excess of 10 percent have not been met. The evidence from the April 2016 and February 2015 VA audiological examinations show that the Veteran is not entitled to a compensable rating in excess of 10 percent. As noted above, disability evaluations for hearing loss are derived from a mechanical application of the Rating Schedule to the numeric designations resulting from audiometric testing. Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). As the preponderance of the evidence is against the claim, the doctrine of reasonable doubt is not applicable. 38 U.S.C. § 5107. T. MAINELLI Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD C. Howell, Associate Counsel