Citation Nr: 18157313 Decision Date: 12/12/18 Archive Date: 12/12/18 DOCKET NO. 15-37 141 DATE: December 12, 2018 ORDER The 30 percent rating for bilateral hearing loss is restored. A rating in excess of 30 percent for bilateral hearing loss is denied. FINDINGS OF FACT 1. The September 2012 rating decision, which reduced the rating for service-connected bilateral hearing loss from 30 percent to a noncompensable rating (0 percent), failed to adhere to the procedural requirements for rating reductions. 2. The Veteran has, at worst, Level I hearing acuity in the right ear and Level I in the left ear. CONCLUSIONS OF LAW 1. The reduction of the disability rating for service-connected bilateral hearing loss from 30 percent to a noncompensable rating was not proper; the reduction is void ab initio. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.105, 3.344. 2. The criteria for a rating in excess of 30 percent for bilateral hearing loss have not been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 4.85, 4.86 Diagnostic Code 6100. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1967 to September 1970 and August 2002 to September 2003. In October 2012, the Veteran submitted a VA Form 9 in response to the adverse September 2012 rating decision, discussed in more detail below, which was accepted in lieu of a notice of disagreement. In this October 2012 submission the Veteran had requested a Board videoconference hearing. However, by his October 2015 substantive appeal (via a VA Form 9), the Veteran reported that he did not want a hearing before the Board. As the Veteran properly perfected his appeal to the Board with a clear indication that he did not want a Board hearing, the Board finds the Veteran did not request a hearing and the Board can proceed with appellate adjudication. 1. Rating reduction By a September 2012 rating decision, the RO reduced the 30 percent rating for the service-connected bilateral hearing loss to a noncompensable rating following file review in relation to unrelated compensation claims. The RO stated that there was a clear and unmistakable error (CUE) in the prior February 2011 rating decision, which had assigned the 30 percent rating for bilateral hearing loss. Without reaching the merits of CUE, the Board finds that the proper procedures for implementing the rating reduction were not followed. See 38 C.F.R. § 3.105. When a reduction in an evaluation of a service-connected disability is considered warranted and the lower evaluation would result in a reduction or discontinuance of compensation payments currently being made, a rating proposing the reduction or discontinuance must be prepared setting forth all material facts and reasons, and the RO must notify the veteran that he has 60 days to present additional evidence showing that compensation should be continued at the present level. 38 C.F.R. § 3.105. The veteran is also to be informed that he may request a predetermination hearing, provided that the request is received by VA within 30 days from the date of the notice. If no additional evidence is received within the 60-day period and no hearing is requested, final rating action will be taken and the award will be reduced or discontinued effective the last day of the month in which a 60-day period from the date of notice to the veteran expires. 38 C.F.R. § 3.105 (e), (i). When VA fails to adhere to the regulations governing ratings, the reduction is generally void ab initio. See, e.g., Greyzck v. West, 12 Vet. App. 288 (1999); Brown v. Brown, 5 Vet. App. 413 (1993); Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Here, the September 2012 rating decision implemented the reduction. There was no period where this reduction was proposed. The Veteran was not sent a letter prior to September 2012 informing him of all material facts and reasons why his rating was reduced, and the RO did not inform him that he had 60 days to present additional evidence. Subsequent issuance of the September 2015 statement of the case and the December 2015 supplemental statement of the case, which explained the facts and reasons behind the RO’s reduction of the rating and considered evidence submitted by the Veteran, do not cure these procedural deficiencies. Based on the RO’s failure to adhere to the procedural requirements for a rating reduction, the Board finds that the reduction of the rating for bilateral hearing loss from 30 percent to a noncompensable rating was not proper and the decision is void ab initio. 2. Increased rating In his October 2012 notice of disagreement, in response to the adverse September 2012 rating decision, the Veteran alleged that his hearing loss was worsening. The Board finds that this constitutes an informal claim for an increase rating for his service-connected bilateral hearing loss, as the Veteran is asserting that a noncompensable rating does not reflect the severity of his hearing loss. See 38 C.F.R. § 3.155 (2014). Disability ratings are assigned in accordance with VA’s Schedule for Rating Disabilities and are intended to represent the average impairment of earning capacity resulting from disability. See 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. 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 rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Reasonable doubt regarding the degree of disability will be resolved in favor of the claimant. 38 C.F.R. § 4.3. The Veteran is service connected for bilateral hearing loss with a 30 percent rating under Diagnostic Code 6100. See 38 C.F.R. § 4.85. Evaluations of defective hearing 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 audiometric tests in the frequencies 1000, 2000, 3000, and 4000 Hertz (Hz). To evaluate the degree of disability from defective hearing, the rating schedule requires assignment of a Roman numeral designation, ranging from I to XI. Other than exceptional cases, VA arrives at the proper designation by mechanical application of Table VI, which determines the designation based on results of standard test parameters. Table VII is then applied to arrive at a rating based upon the respective Roman numeral designations for each ear. Where impaired hearing is service connected in only one ear, the non-service connected ear will be assigned a Roman numeral I for rating purposes. 38 C.F.R. § 4.85, Diagnostic Code 6100. Under 38 C.F.R. § 4.86, 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 Level designation for hearing impairment from either Table VI or Table VIa, whichever results in the higher numeral. Each ear will be evaluated separately. Further, when the average pure tone threshold is 30 dB or less at 1000 Hertz, and 70 dB or more at 2000 Hz, the rating specialist will determine the Level designation for hearing impairment from either Table VI or Table VIa, whichever results in the higher numeral. That numeral will then be elevated to the next higher level. Each ear will be evaluated separately. 38 C.F.R. § 4.86(b). Pertinent case law provides that the assignment of disability ratings for hearing impairment are to be derived by the mechanical application of the Ratings Schedule to the numeric designations assigned after audiometry evaluations are rendered. Doucette v. Shulkin, 28 Vet. App. 366 (2017); Lendenmann v. Principi, 3 Vet. App. 345 (1992). During the August 2012 VA audiological examination, pure tone thresholds, in decibels, were reported as follows: HERTZ 1000 2000 3000 4000 Average RIGHT 20 50 80 75 56.25 LEFT 20 10 40 50 30 Speech audiometry, using the Maryland CNC Test, revealed speech recognition ability of 96 percent in both ears. These audiometric results do not demonstrate an exceptional pattern of hearing impairment. See 38 C.F.R. § 4.86. Therefore, applying these audiometric results to Table VII, the Veteran has Level I hearing acuity in the right ear and Level I in the left ear, which is to be assigned a noncompensable rating under the governing regulations. 38 C.F.R. § 4.85, Diagnostic Code 6100. 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). Here, the August 2012 VA examiner found that the Veteran has difficulty hearing people, particularly in noisy environments. Based on the foregoing, the Board finds that a rating in excess of 30 percent is not warranted at any time during the pendency of the appeal based on the governing regulations. The Board acknowledges the Veteran’s reports of difficulty understanding people. Even after considering such contentions as to the effects of the disability on his daily life, the Board finds that the criteria for a compensable rating are not met. See Lendenmann, supra. Likewise, the Rating Schedule contemplates impairment under the ordinary conditions of daily life. See 38 C.F.R. § 4.10. While the Board is sympathetic to the Veteran’s contention that he has difficulty hearing, the VA rating criteria are definitive and provide for a precise result based on audiometric test results. His subjective report of difficulty hearing and the need for hearing aids cannot be the basis for an increased rating. The Board is bound to apply the VA rating schedule, under which the rating criteria are defined by audiometric test findings involving hearing acuity in a controlled laboratory environment, and the functional impact he describes is contemplated by the rating criteria. See Doucette v. Shulkin, 28 Vet. App. 366 (2017). In reaching this decision, the Board has considered that a July 2015 VA audiological consult conducted an audiometric evaluation for which the audiogram form is not included in the medical records, however speech recognition scores were 100 percent for both ears. The Board finds that a remand is not necessary in this case to obtain the audiogram. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the veteran are to be avoided). Assuming that these speech recognition scores utilized the Maryland CNC test, as required by the regulations, Table VII provides that for a 40 percent rating the Veteran would need, at a minimum, Level IX hearing acuity in his poorer ear and Level V hearing acuity in his better ear. Table VII indicates that there is no way to achieve these levels of hearing acuity when there is 100 percent speech recognition (or even 96 percent speech recognition as demonstrated during the May 2003, February 2010, and August 2012 VA audiological examinations). Consequently, considering the Veteran’s overall disability picture, remanding for these records would not bestow any additional benefit to the Veteran because the record does not support that he has ever had speech recognition scores between 76 to 82 percent. See 38 C.F.R. § 4.85. Based on this same reasoning in the preceding paragraph, the Board rejects the contention in the June 2018 informal hearing presentation requesting a new examination based on the age of the last VA audiological examination. The mere passage of time, alone does not obligate VA to have the Veteran reexamined simply as a matter of course. The Board finds that a new examination is not warranted absent competent evidence of worsening since the last examination. The Board has also considered the Veteran’s contentions in his substantive appeal that VA audiometric testing was conducted during a period where he had minimum tinnitus (which is not normal for him), and that his responses during these examinations did not accurately reflect his hearing acuity due to such things as prematurely answering the question or anticipating the answer to the question. The Board finds the fact that the Veteran had tinnitus does not serve as a basis for finding that the VA examinations of record are inadequate. No examiner has found that the Veteran’s pure tone thresholds could not be tested. Additionally, the Veteran is presently service connected for tinnitus with a 10 percent disability rating. Tinnitus is evaluated under Diagnostic Code 6260, which provides a maximum 10 percent rating. 38 C.F.R. § 4.87, Diagnostic Code 6260. As the Veteran is already in receipt of the maximum schedular rating for tinnitus, and thus his contentions regarding its impact on his hearing have already been compensated, this cannot serve as a basis for an increased rating for hearing loss under 38 C.F.R. § 4.85. To the extent that the Veteran contends that his hearing loss is more severe than shown during examination, the Board observes that the Veteran, while competent to report symptoms such as difficulty understanding people, he is not competent to report that his hearing acuity is of sufficient severity to warrant a higher rating under VA’s tables for rating hearing loss disabilities because such an opinion requires medical expertise (i.e., training in evaluating hearing impairment), which he has not been shown to have. For the same reason, he is not competent to report that the audiological testing yielded inaccurate results due to variable responses because such an opinion again requires medical expertise. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331(Fed. Cir. 2006); Charles v. Principi, 16 Vet. App. 370 (2002); Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (reiterating that medical evidence was needed to support a claim for rheumatic heart disease). Here, the findings of trained health care professionals are of greater probative weight than the Veteran’s lay assertions, especially since there has been no indication by healthcare professionals of invalid test results. Accordingly, there is no basis to support a higher rating for the Veteran’s service-connected bilateral hearing loss. As the preponderance of the evidence is against the assignment of a rating in excess of 30 percent, the benefit-of-the-doubt rule does not apply and the claim must be denied. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 3. Extraschedular consideration The March 2016 VA 646 statement contained general language regarding referral for an extraschedular rating. The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. See 38 C.F.R. § 3.321(b). Therefore, initially, there must be a comparison between the level of severity and symptomatology of the claimant’s service-connected disability with the established criteria found in the rating schedule for that disability. Thun v. Peake, 22 Vet. App. 111 (2008). Diagnostic Code 6100 contemplates hearing acuity and therefore contemplates the Veteran’s contentions that he cannot hear and requires hearing aids; the record does not reflect exceptional factors about the Veteran’s disability in this regard and thus extraschedular consideration is inappropriate.   4. TDIU The March 2016 VA 646 statement argues that the Veteran meets the criteria for a total disability rating. The Board finds that consideration of a total rating based on individual unemployability (TDIU) is not warranted. See Jackson v. Shinseki, 587 F.3d 1106 (Fed. Cir. 2009). Although the record shows that the Veteran’s hearing loss impacts his ability to work, evidence in the record indicates that the Veteran had full time employment until about 2004, at which time he retired to be a full-time stay-at-home dad. See March 2014 Gulf War C & P Examination. The August 2012 VA audiological examiner reported that with amplification and reasonable accommodations as specified in the Americans with Disabilities Act, that the Veteran’s hearing loss alone should not significantly affect his vocational potential or limit participation in most work activities. Therefore, the Board finds that further address of TDIU is not required at this time. See Rice v. Shinseki, 22 Vet. App. 447 (2009). Nathaniel J. Doan Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Dellarco, Associate Counsel