Citation Nr: 18153453 Decision Date: 11/28/18 Archive Date: 11/27/18 DOCKET NO. 17-57 901 DATE: November 28, 2018 ORDER The October 4, 2011 Department of Veterans Affairs (VA) Regional Office (RO) rating decision reducing the disability rating of the service connected bilateral hearing loss from 60 percent disabling to 10 percent disabling was not clearly and unmistakably erroneous (CUE). FINDING OF FACT The evidence has not established, without debate, that the correct facts, as then known, were not before the RO at the time of the October 4, 2011 rating decision, or that the RO incorrectly applied the applicable laws or regulations existing at the time, when it reduced the disability rating for the service connected bilateral hearing loss from 60 percent disabling to 10 percent disabling. CONCLUSION OF LAW The October 4, 2011 rating decision reducing the disability rating of the service connected bilateral hearing loss from 60 percent disabling to 10 percent disabling was not clearly and unmistakably erroneous. 38 U.S.C. § 5109A (2012); 38 C.F.R. § 3.105 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran, who is the appellant, had active service from September 1961 to June 1966. This matter came before the Board of Veterans’ Appeals (Board) on appeal from a March 2017 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia. The Veterans Claims Assistance Act of 2000 (VCAA) enhanced VA’s duty to notify and assist claimants in substantiating their claims for VA benefits. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017). VA’s duties to notify and assist claimants under the VCAA do not apply to claims alleging CUE. Parker v. Principi, 15 Vet. App. 407 (2002); Livesay v. Principi, 15 Vet. App. 165, 179 (2001) (en banc). Therefore, no further discussion of VCAA duties to notify or assist will take place regarding the CUE issue on appeal. CUE in Bilateral Hearing Loss Rating Reduction Previous determinations that are final and binding, including decisions of service connection and other matters, will be accepted as correct in the absence of CUE. Where evidence establishes such error, the prior rating decision will be reversed or amended. For the purpose of authorizing benefits, the rating or other adjudicatory decision which constitutes a reversal of a prior decision on the grounds of CUE has the same effect as if the corrected decision had been made on the date of the reversed decision. 38 C.F.R. § 3.105(a). CUE is a very specific and rare kind of “error.” It is the kind of error, of fact or of law, that when called to the attention of later reviewers compels the conclusion, to which reasonable minds could not differ, that the result would have been manifestly different but for the error. Simply to claim CUE on the basis that previous adjudications had improperly weighed and evaluated the evidence can never rise to the stringent definition of CUE. Similarly, neither can broad-brush allegations of “failure to follow the regulations” or “failure to give due process,” or any other general, nonspecific claim of “error.” Fugo v. Brown, 6 Vet. App. 40, 43-44 (1993). In addition, failure to address a specific regulatory provision involves harmless error unless the outcome would have been manifestly different. Id. at 44. The United States Court of Appeals for Veterans Claims (Court) has held that there is a three-pronged test to determine whether CUE is present in a prior determination: (1) “[e]ither the correct facts, as they were known at the time, were not before the adjudicator (i.e., more than a simple disagreement as to how the facts were weighed or evaluated) or the statutory or regulatory provisions extant at the time were incorrectly applied,” (2) the error must be “undebatable” and of the sort “which, had it not been made, would have manifestly changed the outcome at the time it was made,” and (3) a determination that there was CUE must be based on the record and law that existed at the time of the prior adjudication in question. Damrel v. Brown, 6 Vet. App. 242, 245 (1994) (quoting Russell v. Principi, 3 Vet. App. 310, 313-14 (1992) (en banc)). The Court has held that allegations that previous adjudications had improperly weighed and evaluated the evidence can never rise to the stringent definition of clear and unmistakable error. See Baldwin v. West, 13 Vet. App. 1, 5 (1999); Damrel, 6 Vet. App. at 246. If a veteran wishes to reasonably raise a claim of CUE, there must be some degree of specificity as to what the alleged error is and, unless it is the kind of error that, if true, would be CUE on its face, persuasive reasons must be given as to why one would be compelled to reach the conclusion, to which reasonable minds could not differ, that the result would have been manifestly different but for the alleged error. Bustos v. West, 179 F.3d 1378, 1381 (Fed. Cir. 1999), cert. denied, 528 U.S. 967 (1999); Fugo, 6 Vet. App. at 43-44. If the error alleged is not the type of error that, if true, would be CUE on its face, if the veteran is only asserting disagreement with how the RO evaluated the facts before it, or if the veteran has not expressed with specificity how the application of cited laws and regulations would dictate a “manifestly different” result, the claim must be denied or the appeal to the Board terminated because of the absence of legal merit or the lack of entitlement under the law. Luallen v. Brown, 8 Vet. App. 92 (1995); Caffrey v. Brown, 6 Vet. App. 377, 384 (1994). Further, VA’s failure in the duty to assist cannot constitute CUE. See Cook v. Principi, 318 F.3d 1334, 1346 (Fed. Cir. 2003). At the outset, the Board notes that the October 4, 2011 rating decision became final, as the Veteran did not perfect the appeal after the issuance of a June 2012 statement of the case (SOC). See 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 3.156, 20.302, 20.1103 (2017). Further, the Board finds the allegations of CUE made by the Veteran and representative are adequate to meet the threshold pleading requirements. See Simmons v. Principi, 17 Vet. App. 104 (2003); Phillips v. Brown, 10 Vet. App. 25 (1997) (distinguishing denial of CUE due to pleading deficiency and denial of CUE on merits). At the time of the October 4, 2011 rating decision, in a rating reduction, not only must it have been determined that an improvement in a disability had actually occurred, but also that the improvement actually reflected an improvement in a veteran’s ability to function under the ordinary conditions of life and work. Brown v. Brown, 5 Vet. App. 413, 420-21; Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). The provisions of 38 C.F.R. §§ 4.1, 4.2, and 4.10 (2011) required that a reduction in rating be based upon review of the entire history of a veteran’s disability. VA would then ascertain whether the evidence reflected an actual change in the disability and whether the examination reports reflecting such change were based on thorough examinations. Faust v. West, 13 Vet. App. 342 (2000). VA was not limited, however, to medical indicators of improvement. Rather, VA may rely on non medical indicators of improvement to show that a veteran is capable of more than marginal employment. Id. 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). Where, however, the rating was continued in order to see if improvement was in fact shown, the comparison point could include prior examinations as well. Collier v. Derwinski, 2 Vet. App. 247 (1992). Under the provisions of 38 C.F.R. § 3.344(c) (2011), when a disability rating had been in effect for less than five years, as was the case here, a reexamination that shows improvement in a disability warrants a reduction in disability benefits. Specifically, it is necessary to ascertain, based upon a review of the entire recorded history of the condition, whether the evidence reflects an actual change in disability and whether examination reports reflecting change are based upon thorough examinations. In addition, it must be determined that an improvement in a disability has actually occurred and that such improvement actually reflects an improvement in the veteran’s ability to function under the ordinary conditions of life and work. See Brown at 420-421 (citing 38 C.F.R. §§ 4.1, 4.2, 4.10 and 4.13); 38 C.F.R. 3.344(c). Further, then, as now, ratings for service-connected hearing loss ranged from noncompensable (0 percent) to 100 percent. These ratings are based on organic impairment of hearing acuity as measured by the results of controlled speech discrimination testing together with the average hearing threshold level as measured by pure tone audiometry tests in the frequencies 1,000, 2,000, 3,000 and 4,000 cycles per second. 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. See Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). Diagnostic Code 6100 provides a table for rating purposes (Table VI) to determine a Roman numeral designation (I through XI) for hearing impairment. The hearing impairment is established by a state licensed audiologist including a controlled speech discrimination and the pure tone threshold average, which is the sum of the pure tone thresholds at 1000, 2000, 3000, and 4000 Hertz (Hz), divided by four. See 38 C.F.R. § 4.85 (2011). Table VII is used to determine the percentage rating by combining the Roman numeral designations for hearing impairment of each ear. The horizontal row represents the ear having the poorer hearing and the vertical column represents the ear having the better hearing. Id. Under 38 C.F.R. § 4.86(a) (2011), when the pure tone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hz) is 55 decibels (dB) or more, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table IV or Table VIa, whichever results in the higher numeral. Each ear is to be evaluated separately. See 38 C.F.R. § 4.86(a). The provisions of 38 C.F.R. § 4.86(b) provide that when the pure tone threshold is 30 decibels or less at 1000 Hz, and 70 decibels or more at 2000 Hertz, 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. That numeral will then be evaluated to the next higher Roman numeral. See 38 C.F.R. § 4.86(b) (2011). The schedular rating criteria specifically provide for ratings based on all levels of hearing loss, and as measured by both audiometric testing and speech recognition testing. The ability of the Veteran to hear voices is measured and rated by an audiometric test, as this test measures different frequencies and captures high frequency hearing loss from sources including voices, music, and certain high pitched sounds. The ability of the Veteran to understand people is rated by a speech recognition test, as this test measures conversation comprehension, words, and missed words in conversations. The schedular rating criteria specifically provide for ratings based on all levels of hearing loss, including exceptional hearing patterns which were not demonstrated in this case, and as measured by both audiometric testing and speech recognition testing. See Doucette v. Shulkin, 28 Vet. App. 366 (2017) (holding “that the rating criteria for hearing loss contemplate the functional effects of difficulty hearing and understanding speech”). In the December 2016 CUE claim, and elsewhere throughout the record, the Veteran and representative argued that the RO committed CUE when it reduced the bilateral hearing loss disability rating from 60 percent disabling to 10 percent disabling. The Board notes that in the December 2016 brief the Veteran’s representative spent a significant amount of time arguing that the RO improperly applied the reduction requirements of 38 C.F.R. § 3.344(a); however, as the 60 percent disability rating for hearing loss was in effect for less than five years, the requirements of 38 C.F.R. § 3.3.44(a) were inapplicable to the instant matter. See 38 C.F.R. § 3.344. Subsequently, in a November 2017 brief, the Veteran’s representative clarified the CUE arguments in the instant matter. Specifically, the Veteran and representative argue 1) that the RO erred failed to review the entire record of examinations, as well as the medical industrial history, when implementing the reduction; and 2) that the RO failed to show that an improvement in the disability had actually occurred, and/or that the change in rating actually reflected an improvement in the Veteran’s ability to function under ordinary conditions of life and work. As to the first argument, review of the October 4, 2011 RO rating decision, and subsequent June 2012 SOC, reflect that the RO reviewed the Veteran’s lay statements, the VA treatment records from April 2007 to the present, and the various VA and private audiological examinations. The VA audiological examination reports specifically addressed the Veteran’s functional impairment, to include occupational impairment, caused by the hearing loss disability, the findings of which were specifically discussed in both the October 2011 rating decision and June 2012 SOC. For these reasons, the Board does not find it clear and unmistakable that the RO did not review the Veteran’s entire record of examinations, as well as the medical industrial history, when implementing this reduction. Next, the Board does not find that the evidence before the RO at the time of October 4, 2011 rating decision clearly and unmistakably showed that there was no improvement in the Veteran’s hearing loss disability and/or that there was no improvement in the Veteran’s ability to function under ordinary conditions of life and work. The report from a March 2007 VA audiometric examination, which formed the basis of the initial 60 percent disability rating assigned by the RO in April 2007, showed an average pure tone threshold of 82.5 dB in the left ear, with a Maryland CNC speech discrimination score of 44 percent. Per the report from a subsequent December 2010 VA audiometric examination, the Veteran’s left ear had an improved average pure tone threshold of 43.75 dB, and a significantly improved Maryland CNC speech discrimination score of 96 percent. A July 2011 private audiometric examination reported an even better left ear speech discrimination score of 98 percent, and a further improved pure tone four frequency average of 27.5 dB. Per the report of a subsequent November 2011 VA audiometric examination, the Veteran’s left ear had an average pure tone threshold of 36 dB in the left ear, with a Maryland CNC speech discrimination score of 100 percent. Again, the Veteran and representative effectively argue that that it is clear and unmistakable that no improvement occurred in the Veteran’s hearing loss disability and/or that there was no improvement in the Veteran’s ability to function under ordinary conditions of life and work. Multiple VA and private treatment records subsequent to the March 2007 VA audiometric examination reflect that, as to the left ear, both the pure tone and Maryland CNC ratings improved. As such, it is not clear and unmistakable (“undebatable”) that the service connected hearing loss disability did not improve. As to the question of whether the change in the left ear hearing loss reflected an improvement in the Veteran’s ability to function under ordinary conditions of life and work, as discussed above, the ability of a veteran to understand people is rated by Maryland CNC speech recognition testing, which measures conversation comprehension, words, and missed words in conversations. As the Veteran’s left ear speech discrimination scores showed improvement in multiple examinations following the March 2007 VA audiometric examination, there is some evidence that the Veteran’s ability to understand conversations improved. As there is some evidence that the Veteran’s ability to understand conversations improved, this shows an improvement in the Veteran’s ability to function under ordinary conditions of life and work, where conversational ability is important. The evidence of record reflects that, following a March 2007 VA audiometric examination, the Veteran’s left ear hearing loss improved, and such improvement resulted in an improved ability to function under ordinary conditions of life and work; therefore, it is not “undebatable” that the RO, in reducing the Veteran’s service connected bilateral hearing loss disability rating from 60 percent to 10 percent disabling, committed an error that, had it not been made, would have manifestly changed the outcome at the time it was made. For the above stated reasons, the Board finds there was not CUE in the October 4, 2011 RO rating decision reducing the disability rating for the service connected bilateral hearing loss from 60 percent disabling to 10 percent disabling, and the appeal must be denied. See Damrel, 6 Vet. App. at 245. J. PARKER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD E. Blowers, Counsel