Citation Nr: 18155032 Decision Date: 12/04/18 Archive Date: 12/03/18 DOCKET NO. 14-08 696 DATE: December 4, 2018 ORDER The reduction of the 50 percent disability rating to 20 percent for bilateral hearing loss, effective from August 1, 2016, was proper; restoration of the 50 percent of the disability rating for bilateral hearing loss from August 1, 2016 is denied. The reduction of the 10 percent disability rating to 0 percent for pulled groin/strain with tendonitis (groin disability), effective from August 1, 2016, was not proper; restoration of the 10 percent of the disability rating for the groin disability from August 1, 2016 is granted. A TDIU is denied. FINDINGS OF FACT 1. A May 2016 rating decision reduced the rating for the service-connected bilateral hearing loss from 50 percent to 30 percent, effective August 1, 2016, and met all due process requirements; as of August 1, 2016, the 30 percent rating for the bilateral hearing loss had been in effect for less than five years; at the time of the reduction decision, 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 VI hearing acuity in the left ear with a speech recognition score of 70 percent; therefore, the criteria for a 30 percent disability rating for bilateral hearing loss were met; at the time that the rating reduction was effectuated, bilateral hearing loss had undergone material improvement under the ordinary conditions of life and work. 2. A May 2016 rating decision reduced the rating for the service-connected groin disability from 10 percent to 0 percent, effective August 1, 2016, and met all due process requirements; as of August 1, 2016, the 10 percent rating for the bilateral hearing loss had been in effect for more than five years; at the time of the reduction decision, the service-connected groin disability was manifested by chronic right groin pain and tenderness with no other symptoms or functional impairment; at the time that the rating reduction was effectuated, the groin disability had not undergone sustained improvement under the ordinary conditions of life and work. 3. The Veteran had a high school education, past relevant work experience as a temporary warehouse or security worker, and had not worked since 2003; he was not unable to secure or follow substantially gainful employment solely as a result of the service-connected disabilities of migraine headaches (rated at 30 percent), groin disability (rated at 10 percent), tinnitus (rated at 10 percent), and bilateral hearing loss (rated at 50 percent from October 23, 2009 to August 1, 2016 and 30 percent thereafter), with a combined disability rating of 70 percent from October 23, 2009 to August 1, 2016, and a combined rating of 60 percent thereafter. CONCLUSIONS OF LAW 1. The reduction of the disability rating for the service-connected bilateral hearing loss from 50 percent to 30 percent effective from August 1, 2016 was proper, and the criteria for restoration of the 50 percent rating for bilateral hearing loss are not met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.105, 3.344, 4.85, Diagnostic Code (DC) 6100. 2. The reduction of the disability rating for the service-connected groin disability from 10 percent to 0 percent effective from August 1, 2016 was not proper, and the criteria for restoration of the 10 percent rating for the groin disability are met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.105, 3.344, 4.73, DC 5399-5316. 3. The criteria for the award of a TDIU are not met or approximated for any period. 38 U.S.C. §§ 1155, 5103(a), 5103A, 5107; 38 C.F.R. §§ 3.159, 3.340, 3.341, 4.1, 4.3, 4.15, 4.16, 4.18, 4.19. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran, who is the appellant, had active service in the U.S. Marine Corps from June 1978 to June 1981 and from January 1982 to January 1984. This matter is on appeal from January 2012 and May 2016 rating decisions. In October 2017, the Veteran testified before the undersigned at a Travel Board hearing. The Board finds that the duties to notify and assist in this case have been satisfied. Neither the Veteran nor the evidence has raised any specific contentions regarding the duties to notify or assist. 1. Rating Reduction Criteria and Restoration Analysis for Hearing Loss In February 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 accomplished in a May 2016 rating decision, effective from August 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, 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). When the puretone threshold is 30 decibels or less at 1000 Hertz, 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 VI A, whichever results in the higher numeral. That numeral will then be elevated to the next higher Roman numeral. 38 C.F.R. § 4.86 (b). In this case, the Board finds that the weight of the evidence shows material 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 August 1, 2016, are not met. In May 2009, the RO granted service connection for bilateral hearing loss with a 50 percent rating effective from November 24, 2008 based on the April 2009 VA examination results showing that the right ear demonstrated an exceptional pattern of hearing impairment under 38 C.F.R. § 4.86(b) with an average decibel loss of 65 and a speech recognition score of 44 percent, and the left ear demonstrated an average decibel loss of 63 and a speech recognition score of 56 percent. The April 2009 VA audiometric results revealed Level VIII hearing acuity in the right ear and Level VII hearing acuity in the left ear, which is consistent with a 40 percent rating in accordance with Table VII under DC 6100; nonetheless, the RO assigned a 50 percent disability rating for bilateral hearing loss. 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 April 2015 VA hearing loss examination, pure tone thresholds, in decibels (dB), were recorded as follows: HERTZ 1000 2000 3000 4000 RIGHT 40 75 80 95 LEFT 45 75 80 75 Pure tone threshold averages were 73 dB for the right ear and 69 dB for the left ear. Speech audiometry revealed speech recognition ability of 64 percent for the right ear and 70 percent for the left ear. Under the guidelines set forth in 38 C.F.R. § 4.85, the audiometric results from the April 2015 VA hearing loss examination show no exceptional hearing pattern for either ear and reveal Level VII hearing acuity in the right ear (with an average decibel loss of 73 and a speech recognition score of 64 percent), and Level VI hearing acuity in the left ear (with an average decibel loss of 69 and a speech recognition score of 70 percent) when evaluating under Table VI. According to Table VII under DC 6100, a 30 percent disability rating was warranted for the level of hearing impairment demonstrated at the April 2015 VA hearing loss 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 improved speech recognition ability for both ears (i.e., improved from 44 percent to 64 percent for the right ear and improved from 56 percent to 70 percent for the left ear); therefore, the April 2015 VA audiometric results necessarily reflect an increased ability to function (i.e., to hear speech) under the ordinary conditions of life and work. At the earlier October 2010 VA hearing loss examination, pure tone thresholds, in decibels (dB), were recorded as follows: HERTZ 1000 2000 3000 4000 RIGHT 40 80 85 90 LEFT 40 70 75 75 Pure tone threshold averages were 74 dB for the right ear and 65 dB for the left ear. Speech audiometry revealed speech recognition ability of 64 percent for the right ear and 72 percent for the left ear. Under the guidelines set forth in 38 C.F.R. § 4.85, the audiometric results from the October 2010 VA audiology examination show no exceptional pattern of hearing impairment for either ear and reveal Level VII hearing acuity in the right ear (with an average decibel loss of 74 and a speech recognition score of 64 percent) and Level V hearing acuity in the left ear (with an average decibel loss of 65 and a speech recognition score of 72 percent) when evaluating under Table VI. According to Table VII under DC 6100, a 30 percent disability rating is warranted for the level of hearing impairment demonstrated at the October 2010 VA audiology examination. Because the audiometric results from the October 2010 VA audiology examination shows a level of hearing impairment consistent with the 30 percent schedular rating criteria, and improved speech recognition ability for both ears (i.e., improved from 44 percent to 64 percent for the right ear and improved from 56 percent to 72 percent for the left ear) as compared to April 2009 speech recognition ability, this evidence provides further support for finding that there had been a material improvement of the bilateral hearing loss under the ordinary conditions of life and work at the time of the rating reduction. 38 C.F.R. § 4.85. Based on the evidence above, the Board finds that the preponderance of the evidence demonstrates that the service-connected bilateral hearing loss underwent material improvement, including under the ordinary conditions of life and work; therefore, at the time of the May 2016 rating decision, the reduction of the 50 percent rating to 30 percent for bilateral hearing loss effective from August 1, 2016, was warranted, so the requirements for restoration of the 50 percent disability rating have not been met. See generally 38 C.F.R. § 3.344(a). 2. Rating Reduction Criteria and Restoration Analysis for Groin Disability In February 2015, the RO proposed to reduce the 10 percent rating for the service-connected groin disability to 0 percent. The rating reduction was later accomplished in a May 2016 rating decision, effective from August 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. At the time the reduction became effective, August 1, 2016, the 10 percent rating for the groin disability had been continuously in effect for more than five years. As such, the provisions of 38 C.F.R. § 3.344(a) and (b) are applicable. In this regard, the rating may be reduced only if the examination upon which the reduction is based is at least as full and complete as the examination used to establish the prior higher evaluation. A rating that has been in effect for more than five years will not be reduced on any one examination, except in those instances where all of the evidence of record clearly warrants the conclusion that sustained improvement has been demonstrated. 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, the groin disability was rated under the criteria found at 38 C.F.R § 4.73, DC 5399-5316 as an unlisted condition analogous to an injury to Muscle Group XVI. Under DC 5316, which pertains to Muscle Group XVI, a 0 percent rating is provided for slight disability, a 10 percent rating is provided for moderate disability, a 30 percent rating for moderately severe disability, and a 40 percent rating for severe disability. Muscle Group XVI involves flexion of the hip. Included in the muscle group are pelvic girdle group, which include the psoas, iliacus, and pectineus. 38 C.F.R. § 4.73. In September 2005, the RO awarded the 10 percent rating for the groin disability based on the July 2005 VA examination results showing right groin pain affecting the duration of standing and walking and tenderness with palpation but no evidence of a decreased range of motion or signs of hernia. In consideration thereof, the RO determined that the disability picture closely approximated moderate impairment of Muscle Group XVI so granted a 10 percent disability rating under hyphenated DC 5399-5316. In this case, the Board finds that the weight of the evidence demonstrates no sustained improvement of the groin disability under the ordinary conditions of life and work; therefore, the rating reduction was not proper, so the criteria for restoration of the 10 percent rating for groin disability, effective August 1, 2016, have been met. The burden of proof is on VA to establish that a reduction is warranted by the weight of the evidence. Kitchens v. Brown, 7 Vet. App. 320 (1995). At the time of the rating reduction decision, there was conflicting evidence of record regarding whether the groin disability continued to be manifested by chronic right groin pain and tenderness with no other symptoms or functional impairment. At the November 2010 VA examination, the Veteran reported continued right groin pain and tenderness to palpation with no palpable or visible abnormality demonstrated; however, the April 2015 VA examination report showed an asymptomatic groin disability at that time. While the November 2010 VA examiner noted that the Veteran gave submaximal effort and appeared to exaggerate the pain and weakness associated with the groin disability during the physical examination, the November 2010 VA examiner did not state that there was no pain or tenderness associated with the groin disability and did not adequately address the chronic nature of the symptoms associated with the disability. At the post-reduction Board hearing, the Veteran credibly testified that he continued to experience right groin pain with chronic strains and sprains, which is consistent with the finding that there was no sustained improvement of the groin disability under the ordinary conditions of life and work at the time of the rating reduction. When compared to the evidence of record when the 10 percent rating was initially awarded for the groin disability in September 2005, the weight of the evidence of record at the time of the May 2016 rating reduction decision and after the rating reduction decision shows no sustained improvement of the groin disability under the ordinary conditions of life and work. Rather, the weight of the evidence showed an essentially unchanged groin disability with chronic symptoms of pain and tenderness. As such, the reduction of the 10 percent rating to 0 percent, effective from August 1, 2016, was not proper; therefore, the requirements for restoration of the 10 percent rating have been met. See generally 38 C.F.R. § 3.344. 3. TDIU Total disability will be considered to exist when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340. Any reasonable doubt regarding a degree of disability will be resolved in favor of the veteran. 38 C.F.R. § 4.3. If the schedular rating is less than total, a total disability rating can be assigned based on individual unemployability if a veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disability, provided that he has one service-connected disability rated at 60 percent or higher; or two or more service-connected disabilities, with one disability rated at 40 percent or higher and the combined rating is 70 percent or higher. 38 C.F.R. § 4.16 (a). In order for a veteran to prevail in a claim for TDIU, the record must reflect circumstances, apart from non-service-connected conditions, that place him or her in a different position than other veterans who meet the basic schedular criteria. The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is recognition that the impairment makes it difficult to obtain or keep employment. The ultimate question is whether the veteran, in light of his or her service-connected disorders, is capable of performing the physical and mental acts required by employment, not whether he or she can find employment. See Van Hoose v. Brown, 4 Vet. App. 361 (1993). The question of whether a TDIU should be awarded is a determination for the adjudicator. See Moore v. Nicholson, 21 Vet. App. 211, 218 (2007) (ultimate question of whether a veteran is capable of substantial gainful employment is not a medical one; that determination is for the adjudicator), rev’d on other grounds sub nom, Moore v. Shinseki, 555 F.3d 1369 (Fed. Cir. 2009). For the entire TDIU period from October 23, 2009, the service-connected disabilities are migraine headaches, rated at 30 percent; bilateral hearing loss, rated at 50 percent prior to August 1, 2016, and 30 percent thereafter; tinnitus, rated at 10 percent; and the groin disability rated at 10 percent. The combined disability rating is 70 percent from October 23, 2009 to August 1, 2016, and 60 percent thereafter. From October 23, 2009 to August 1, 2016, there are two or more service-connected disabilities, with one disability rated at 40 percent or higher (i.e., bilateral hearing loss), and a combined rating of 70 percent or higher (i.e., 70 percent); therefore, the threshold percentage requirements for the award of a TDIU under the provisions of 38 C.F.R. § 4.16 (a) are met for this period. Conversely, from August 1, 2016, there are two or more service-connected disabilities, but no disability is rated at 40 percent or higher, and the combined rating is not 70 percent or higher; therefore, the threshold percentage requirements for the award of a TDIU under the provisions of 38 C.F.R. § 4.16 (a) are not met for this period. Although the service-connected disabilities have not met the threshold percentage requirements for a TDIU under 38 C.F.R. § 4.16(a) from August 1, 2016, the Veteran may otherwise be entitled to a TDIU under 38 C.F.R. § 4.16(b) for the period if the evidence shows that he is unable to secure or follow a substantially gainful occupation as a result of the service-connected disabilities. 38 C.F.R. § 4.16(b). VA regulations provide that, where a veteran is unemployable by reason of service-connected disabilities but fails to meet the combined rating percentage standards under 38 C.F.R. § 4.16(a), the case must be submitted for consideration of a TDIU under the provisions of 38 C.F.R. § 4.16(b). After review of all the lay and medical evidence of record, the Board finds that the weight of the evidence is against a finding that the service-connected disabilities were of sufficient severity so as to preclude substantially gainful employment for any period. The Veteran has reported a high school education, past relevant work experience as a temporary service worker with a history of warehouse and security jobs, and had not worked full time since approximately 2003 after he suffered a left shoulder injury during a warehouse job for which he received workmen’s disability compensation. Throughout the period on appeal, the service-connected migraine headaches were manifested by characteristic prostrating attacks occurring more often than once a month (i.e., approximately once every two weeks). The 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 or Level VI hearing acuity in the left ear with a speech recognition score of 72 percent or 70 percent. Tinnitus was manifested by a constant hissing sound in the ears. The groin disability was manifested by chronic right groin pain and tenderness with no other symptoms or functional impairment. (Continued on the next page)   Because the Veteran's work history as a temporary worker reportedly involved some moderate physical labor and some ability to work independently, and the symptoms and functional impairment associated with the service-connected disabilities would not interfere with the physical labor and independence needed to perform the tasks associated with the work, the symptoms and functional impairment associated with the service-connected migraine headaches, bilateral hearing loss, tinnitus, and groin disability would not preclude the type of work for which the Veteran had experience. Thus, considered together with the work and educational history reported by the Veteran, the evidence weighs against finding that the service-connected disabilities have rendered the Veteran unemployable; therefore, the Board finds that the service-connected disabilities were not sufficiently incapacitating so as to preclude substantially gainful employment to warrant a TDIU for any period. J. PARKER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD C. Ferguson, Counsel