Citation Nr: 18152692 Decision Date: 11/27/18 Archive Date: 11/23/18 DOCKET NO. 16 25-538 DATE: November 27, 2018 ORDER The rating reduction of 10 percent to 0 percent for bilateral hearing loss, effective October 1, 2015, was improper, and the 10 percent rating is restored. FINDING OF FACT 1. In a November 2014 rating decision, the RO informed the Veteran that his 10 percent evaluation for bilateral hearing loss was proposed to be reduced to a 0 percent rating. 2. In a July 2015 decision, the RO reduced the rating for the Veteran’s hearing loss from 10 percent disabling to 0 percent disabling, effective October 1, 2015. 3. The 10 percent rating had been in effect since March 28, 2012, which was less than five years. 4. At the time of the July 2015 rating decision, there had been no improvement in the Veteran’s ability to function under the ordinary conditions of life because of his bilateral hearing loss symptoms. CONCLUSION OF LAW The reduction of the rating for bilateral hearing loss from 10 percent to 0 percent effective October 1, 2015, was improper, and the 10 percent rating is restored. 38 U.S.C. §§ 1155, 5107, 5112; 38 C.F.R. §§ 3.105, 4.1, 4.85, Diagnostic Code 6100. REASONS AND BASES FOR FINDING AND CONCLUSION The appellant is a Veteran who served on active duty from September 1961 to August 1964. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a July 2015, rating decision of the Portland, Oregon, Department of Veterans Affairs (VA) Regional Office (RO). Propriety of a rating reduction of 10 percent to 0 percent for bilateral hearing loss, effective October 1, 2015 The Veteran filed a claim for increased rating for bilateral hearing loss in June 2014. In April 2008, the Veteran was granted service connection for hearing loss with a non-compensable rating. Ratings of hearing loss range from noncompensable to 100 percent based on organic impairment of hearing acuity as measured by the results of speech discrimination tests (Maryland CNC) combined with the average hearing threshold levels as measured by pure tone audiometric tests in the frequencies 1000, 2000, 3000, and 4000 cycles per second. 38 C.F.R. § 4.85(a), (d). To rate the degree of disability for service-connected hearing loss, the Rating Schedule has established eleven auditory acuity levels, designated from Level I, for essentially normal acuity, through Level XI, for profound deafness. 38 C.F.R. § 4.85(h), Tables VI, VIA. To establish entitlement to a compensable rating for hearing loss, certain minimum levels of the combination of the percentage of speech discrimination loss and average pure tone decibel loss must be met. The results of the pure tone audiometric test and speech discrimination test are charted on Table VI, Table VIA, in exceptional cases as described in 38 C.F.R. § 4.86, and Table VII, as set out in the Rating Schedule. 38 C.F.R. § 4.85. 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 an exceptional pattern of hearing loss is shown, specifically when the pure tone threshold at 1000, 2000, 3000, and 4000 Hertz is 55 decibels or more, or when the pure tone threshold is 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hertz. 38 C.F.R. § 4.86. When the pure tone threshold at 1000, 2000, 3000, and 4000 Hertz is 55 decibels or more in a particular ear, determination of the level of hearing acuity in that ear will be made using either Table VI or Table VIA, whichever results in the higher numeral. Id. Turning to the evidence of record, in January 2013, the RO granted an increased rating of 10 percent for the Veteran’s service-connected bilateral hearing loss, effective March 28, 2012. This increase was based on a March 2012 examination. His pure tone thresholds, as tested at that time, were as follows: HERTZ 1000 2000 3000 4000 AVERAGE RIGHT 35 55 60 70 55 LEFT 35 45 60 70 53 Word recognition testing revealed speech recognition ability of 78 percent for the right ear and 82 percent for the left ear. The Veteran stated he is a racquetball player and cannot hear on the court, he also reported trouble hearing when talking on the phone. These audiometry test results equate to Level IV hearing in the right ear and Level IV in the left ear using Table VI. 38 C.F.R. § 4.85. Applying the percentage ratings for hearing impairment found in Table VII, Level IV hearing in the right ear and Level IV hearing in the left ear results in a 10 percent disability rating. 38 C.F.R. § 4.85. In September 2014, the Veteran was afforded an audio examination. His pure tone thresholds, as tested at that time, were as follows: HERTZ 1000 2000 3000 4000 AVERAGE RIGHT 40 50 55 55 50 LEFT 45 55 65 65 57.50 Word recognition testing revealed speech recognition ability of 92 percent for the right ear and 92 percent for the left ear. These audiometry test results equate to Level I hearing in the right ear and Level I in the left ear using Table VI. 38 C.F.R. § 4.85. Applying the percentage ratings for hearing impairment found in Table VII, Level I hearing in the right ear and Level I hearing in the left ear results in a 0 percent disability rating. 38 C.F.R. § 4.85. In July 2015, the Veteran was afforded an audio examination. His pure tone thresholds, as tested at that time, were as follows: HERTZ 1000 2000 3000 4000 AVERAGE RIGHT 50 55 65 70 60 LEFT 50 55 65 70 60 Word recognition testing revealed speech recognition ability of 88 percent for the right ear and 90 percent for the left ear. These audiometry test results equate to Level III hearing in the right ear and Level III in the left ear using Table VI. 38 C.F.R. § 4.85. Applying the percentage ratings for hearing impairment found in Table VII, Level III hearing in the right ear and Level III hearing in the left ear results in a 0 percent disability rating. 38 C.F.R. § 4.85. The Veteran submitted audiograms from May 2015, and August 2015. With respect to these audiological evaluations, only the graphic representation of the audiogram was included in the record, with no numeric interpretation provided. Nevertheless, as the audiometric results were conveyed in straightforward graphs, the Board finds that it, as the finder of fact, can interpret the charts to determine the numeric values of the pure tone levels of adjudication purposes. See Kelly v. Brown, 7 Vet. App. 471 (1995). The May 2015, report shows the Veteran had fairly good speech discrimination on the right and good speech discrimination on the left, however the specific numbers were not included. His pure tone thresholds, as tested at that time, were as follows:   HERTZ 1000 2000 3000 4000 AVERAGE RIGHT 45 65 70 75 63.75 LEFT 50 65 70 80 66.25 The May 2015, report did not include speech discrimination scores. Testing of hearing loss disability for VA rating purposes must also meet specific requirements, to include speech discrimination testing in a controlled setting using a Maryland CNC word list. There is no indication in the record that the private audiological evaluation was conducted in the manner prescribed. Thus, the Board finds that this audiological examination is probative, but as it does not contain a Maryland CNC test, it is not sufficient for rating purposes because it does not comply with 38 C.F.R. § 4.85. The Vet submitted an August 2015, examination. His pure tone thresholds, as tested at that time, were as follows: HERTZ 1000 2000 3000 4000 AVERAGE RIGHT 50 60 65 70 61.25 LEFT 50 50 60 60 55 Speech audiometry revealed speech recognition ability of 76 percent in the right ear and 84 percent in the left ear. It is unclear from the report if the word recognition testing was Maryland CNC, however the Board gives the Veteran the benefit of the doubt and has treated the word recognition test as a Maryland CNC word recognition test. No exceptional pattern of hearing loss is demonstrated. These audiometry test results equate to Level IV hearing in the right ear and Level II in the left ear using Table VI. 38 C.F.R. § 4.85. Applying the percentage ratings for hearing impairment found in Table VII, Level IV hearing in the right ear and Level II hearing in the left ear results in a noncompensable disability rating. 38 C.F.R. § 4.85. In November 2014, the RO proposed to reduce the evaluation for the Veteran’s bilateral hearing loss from 10 percent to 0 percent, effective October 1, 2015. In a July 2015 rating decision, the RO reduced the disability evaluation from 10 percent to 0 percent, effective October 1, 2015. The Veteran maintains that his 10 percent rating should not have been reduced. The Veteran was sent a notice letter of the proposed reduction dated February 2015. Such communication fully detailed the proposal to reduce his disability evaluation and apprised him that he had 60 days to submit additional evidence to show that a reduction was not appropriate. Evidence was submitted and considered, and the reduction was implemented in a July 2015, rating decision, effective October 1, 2015. Given the chronology of the process described above, the Board finds that the RO complied with the due process procedures required under 38 C.F.R. § 3.105(e) for reducing the Veteran’s disability rating by notifying him of his rights and giving him an opportunity for a hearing and time to respond. The Board must next address whether the reduction was warranted. A Veteran’s disability rating may not be reduced unless the evidence demonstrates that an improvement in the disability has occurred. See 38 U.S.C. § 1155. Additionally, in certain rating reduction cases, the recipients of VA benefits are to be afforded greater protections. These additional protections apply in cases involving ratings that have continued for long periods of time at the same level (that is, five years or more); for ratings in effect for fewer than five years, reduction is warranted if the evidence shows improvement of the condition. See 38 C.F.R. § 3.344 (2017). In this case, the 10 percent evaluation for the Veteran’s bilateral hearing loss was assigned based on March 2012, examination results. Applying the examination results to Table VI, the Veteran had Level IV hearing in the right ear, and Level IV hearing in the left, which corresponds to a 10 percent evaluation. An exceptional pattern of hearing impairment was not shown during that examination. The Veteran’s 10 percent evaluation was in effect for less than five years. As noted above, additional procedural safeguards are set forth in 38 C.F.R. § 3.344 for ratings in effect for five years or more. These protections are not for application in this case as the Veteran’s 10 percent rating was in effect for less than five years. However, in Brown v. Brown, 5 Vet. App. 413, 421(1993), the Court identified general regulatory requirements which are applicable to all rating reductions. Pursuant to 38 C.F.R. § 4.1, it is essential, both in the examination and in the evaluation of the disability, that each disability be viewed in relation to its history. Brown, 5 Vet. App at 420. Similarly, 38 C.F.R. § 4.2 establishes that “[i]t is the responsibility of the rating specialist to interpret reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of the disability present.” Id. Furthermore, per 38 C.F.R. § 4.13, the rating agency should assure itself that there has been an actual change in the condition, for better or worse, and not merely a difference in the thoroughness of the examination or in use of descriptive terms. Additionally, as mentioned, in any rating reduction case, not only must it be determined that an improvement in a disability has actually occurred, but that such improvement reflects improvement in ability to function under ordinary conditions of life and work. The burden of proof is on VA to establish that a reduction is warranted by a preponderance of the evidence. In general, the RO’s reduction of a rating must have been supported by the evidence on file at the time of the reduction. Pertinent post-reduction evidence favorable to restoring the rating, however, also must be considered. The Veteran’s 10 percent evaluation was reduced based on the findings of the September 2014 VA examination. Applying the September 2014 VA examination results to Table VI, the Veteran had Level I hearing in the right ear, and Level I hearing in the left ear, which corresponds to a 0 percent rating. An exceptional hearing impairment was not shown at that time. A mechanical application of the audiometric findings on VA examination in September 2014, July 2015, do not demonstrate entitlement to a 10 percent evaluation for hearing loss, nor does the private audiogram of August 2015. In June 2014, the Veteran asserted that he believed his hearing loss had worsened. In February 2015, he reported that he had noticed his hearing loss regularly getting worse through the years. He reported having difficulty hearing during conversation, and repeatedly asked people to repeat themselves. He also reported having increased difficulty hearing in groups. The Veteran’s spouse submitted a statement in February 2015. She reported having witnessed the Veteran’s hearing loss worsen through the years. She stated she frequently has difficulty communicating as the Veteran is hard of hearing. The evidence indicates that the Veteran’s hearing did not reflect improvement in ability to function under ordinary conditions of life and work. He and his spouse have submitted statements indicating he continues to suffer from hearing loss and has difficulty in communicating as a result. Additionally, VAMC treatment records document continued use of hearing aids. Upon review of this evidence, the Board concludes that, at that the time of the reduction, the evidence did not show actual, ascertainable improvement of the Veteran’s hearing that actually reflected an improvement in his ability to function under the ordinary conditions of life. This conclusion is supported by the Veteran’s lay statements that his hearing continued to worsen and had not improved. As a lay person, the Veteran is considered competent to report what comes to him through his senses, including experiencing hearing difficulties. Accordingly, his statements provide probative evidence in support of his appeal. Resolving reasonable doubt in the Veteran’s favor, the Board finds that the reduction of the rating for bilateral hearing loss was not proper because any improvement that occurred did not reflect improvement in the ability to function in the ordinary course of life. As such, the 10 percent rating for bilateral hearing loss is restored effective October 1, 2015, the date of the reduction. H.M. WALKER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD E. Skiouris, Associate Counsel