Citation Nr: 1807279	
Decision Date: 02/05/18    Archive Date: 02/14/18

DOCKET NO.  14-25 807	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Houston, Texas


THE ISSUES

1. Whether the reduction of the rating for bilateral hearing loss, from 30 percent to zero percent, effective June 1, 2014, was proper.

2. Entitlement to a rating in excess of zero percent for bilateral hearing loss. 


REPRESENTATION

Veteran represented by:	Texas Veterans Commission


WITNESS AT HEARING ON APPEAL

The Veteran




ATTORNEY FOR THE BOARD

A. Price, Associate Counsel


INTRODUCTION

The Veteran served on active duty in the U.S. Marine Corps from November 1965 to November 1967. 

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a April 2014 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, which decreased the rating for the Veteran's bilateral hearing loss from 30 percent to zero.

In a September 2013 rating decision, the RO proposed a decrease to zero percent for the Veteran's service connected hearing loss based on the results of a VA examination conducted in March 2013.  

The Veteran testified at a travel board hearing in October 2017 before the undersigned Veterans Law Judge.  A transcript of the hearing is associated with the claims file. 

The issue of entitlement to a rating in excess of zero percent for bilateral hearing loss is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ).


FINDINGS OF FACT

1. The Veteran received notice of the proposed reduction of his 30 percent rating for bilateral hearing loss by way of a rating decision and notification letter dated September 2013, and he was notified of his right to submit additional evidence and request a predetermination hearing. 

2.  An April 2014 rating decision effectuated the proposed reduction of the disability rating for hearing loss from 30 percent to zero percent, effective June 1, 2014. 

3.  The 30 percent disability rating for hearing loss had been in effect for less than five years. 

4.  With respect to the assigned disability rating reduction from 30 to zero percent on June 1, 2014, an adequate reexamination indicated an improvement in the severity of the Veteran's service-connected hearing loss, specifically that the Veteran had Level VII hearing acuity in the right ear and Level II in the left ear, as well as speech recognition ability of 100 percent in both ears.


CONCLUSIONS OF LAW

1.  The RO complied with the procedural requirements under 38 C.F.R. § 3.105(e) for effectuating rating reductions.  38 C.F.R. § 3.105 (2017).

2.  The reduction of the disability rating for the Veteran's bilateral hearing loss from 30 to zero percent was proper and the criteria for the restoration of a 30 percent disability rating for hearing loss have not been met.  38 U.S.C. §§ 1155, 5102, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.105, 3.159, 3.344 (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I. VA's Duties to Notify and Assist

The Board notes that the issue on appeal stems from disagreement with 38 C.F.R. § 3.105(e) reductions and is not based upon a claim or application for benefits.  As discussed more fully below, the regulations pertaining to the reduction of evaluations for compensation contain their own notification and due process requirements.  See 38 C.F.R. § 3.105(e), (i).  The Board concludes that all notification and due process requirements provided under 38 C.F.R. § 3.105(e) have been met.

II. Propriety of Reduction 

Initially, the Board notes that where the reduction in rating of a service-connected disability or employability status 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 and setting forth all material facts and reasons must be prepared.  

The appellant must be notified at his or her latest address of record of the contemplated action and furnished detailed reasons thereof, and given 60 days to present additional evidence to show that compensation payments should be continued at their present level.  The appellant must also be informed that he or she may request a predetermination hearing, provided that the request is received by the VA within 30 days from the date of the notice.  If additional evidence is not 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).

In this case, a September 2013 letter provided the Veteran with appropriate notice of a proposed reduction of his bilateral hearing loss rating from 30 to zero percent.  During the 60 day period, the Veteran did not submit any additional medical evidence.  In an April 2014 rating decision, the RO effectuated the proposed reduction, effective from June 1, 2014, noting that the Veteran had not submitted any evidence that the reduction should not be made.  The Veteran had been afforded a VA examination in March 2013, upon which the proposed reduction was based.  A Statement of the Case was also issued in June 2014, noting that the Veteran was not entitled to a rating higher than zero percent because the evidence did not show his hearing had improved to a point where a compensable rating was not warranted.  

Based upon these facts, the Board finds that the RO's reduction of the Veteran's hearing loss rating was procedurally in accordance with the notice provisions under 38 C.F.R. § 3.105. 

Service connection for hearing loss had been in effect since August 31, 2011, at which time a 30 percent disability rating was assigned pursuant to the rating criteria under 38 C.F.R. § 4.85, Diagnostic Code 6100.  Given these facts, the 30 percent disability rating was in effect for less than five years before it was effectively reduced.  See Brown v. Brown, 5 Vet. App. 413, 418 (1993) (noting that the duration of a rating must be measured from the effective date assigned that rating until the effective date of the actual reduction).

Regarding rating reductions, the law provides that, when a rating has continued for a long period at the same level (i.e., five years or more), a reduction may be accomplished when the rating agency determines that evidence makes it reasonably certain that the improvement will be maintained under the ordinary conditions of life.  38 C.F.R. § 3.344(a).  

However, where a rating has been in effect for less than five years, the regulatory requirements under 38 C.F.R. § 3.344(a) are inapplicable, as set forth in 38 C.F.R. § 3.344(c).  In such cases, an adequate reexamination that discloses improvement in the condition will warrant reduction in rating.  See 38 C.F.R. § 3.344(c); 3.343(a).  A rating reduction requires an inquiry as to "whether the evidence reflects an actual change in the disability and whether the examination reports reflecting such change are based upon thorough examinations."  See Brown v. Brown, 5 Vet. App. 413, 421. 

Significantly, in a rating reduction case, VA has the burden of establishing that the disability has improved.  This is in contrast to a case involving a claim for an increased (i.e., higher) rating, in which it is the Veteran's responsibility to show that the disability has worsened.  A rating reduction case focuses on the propriety of the reduction, and is not the same as an increased rating issue.  See Peyton v. Derwinski, 1 Vet. App. 282, 286 (1991).  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 evaluating whether the condition had demonstrated actual improvement.  Dofflemyer v. Derwinski, 2 Vet. App. 277, 281-282 (1992).

The question of whether a disability has improved involves consideration of the applicable rating criteria.  Hearing loss ratings range from noncompensable to 100 percent based on organic impairment of hearing acuity, as measured by controlled speech discrimination tests in conjunction with average hearing thresholds determined by puretone audiometric testing at frequencies of 1000, 2000, 3000 and 4000 cycles per second.  "Puretone threshold average" 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 §4.86) to determine the Roman numeral designation for hearing impairment from Table VI or VIA.  38 C.F.R. § 4.85, DC 6100.

The rating schedule establishes eleven auditory acuity levels, designated from Level I for essentially normal hearing acuity through Level XI for profound deafness.  38 C.F.R. § 4.85.  The horizontal rows in Table VI (in 38 C.F.R. § 4.85) represent nine categories of the percentage of discrimination based on the controlled speech discrimination test.  The vertical columns in Table VI represent nine categories of decibel loss based on the puretone audiometry test.  The Roman numeral designation is located at the point where the percentage of speech discrimination and puretone threshold average intersect.  See 38 C.F.R. §§ 4.85, 4.87.

The regulations also provide that in cases of exceptional hearing loss, i.e., when the puretone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz ) is 55 decibels or more, the Roman numeral designation will be determined for hearing impairment, separately, from either Table VI or Table VIA, whichever results in the higher numeral.  38 C.F.R. § 4.86(a).  A Roman numeral designation will also be determined from either Table VI or Table VIA, whichever results in the higher numeral, when the puretone threshold is 30 decibels or less at 1000 Hertz, and 70 decibels or more at 2000 Hertz.  That numeral will then be elevated to the next higher Roman numeral.  38 C.F.R. § 4.86(b).

On the authorized audiological evaluation in March 2013, pure tone thresholds, in decibels, were as follows:




HERTZ


Avg.

500
1000
2000
3000
4000

RIGHT
35
30
75
85
90
70
LEFT
35
25
30
50
70
44

Speech audiometry revealed speech recognition ability of 100 percent in both ears.  Utilizing Table VI listed in 38 C.F.R. § 4.85, the above audiological findings show Level I hearing acuity in the left ear.  His right ear met the criteria for an exceptional pattern of hearing loss because the puretone threshold was 30 decibels or less at 1000 Hertz, and 70 decibels or more at 2000 Hertz.  38 CFR §4.86(b).  Utilizing Table VIA listed in 38 C.F.R. § 4.85, the above audiological findings show Level VI hearing acuity in the right ear.  Using Level I hearing and Level VI hearing under Table VII in 38 C.F.R. § 4.85, these findings warrant a zero percent rating.  

In September 2012, the Veteran applied for a TDIU based on his PTSD and hearing loss diagnoses affecting his ability to work. 

In his May 2014 notice of disagreement, the Veteran wrote that he wanted another VA exam to evaluate his hearing because he felt the previous examination was flawed.  He made another request in July2014.  In his July 2014 substantive appeal, he indicated that he felt the March 2013 examination was not adequate, as the speech recognition test was flawed. 

During his October 2017 hearing, the Veteran testified that he took the letter indicating the RO proposed to reduce his rating to a service representative, but never responded personally.  He indicated that during the examination, he felt the examiner was rude/dismissive.  He also noted that his hearing had worsened and he was given hearing aids prior to the reduction. 

As noted in the legal standards for assessing hearing loss disability, ratings of hearing loss disability involve mechanical application of the rating criteria to the findings on official audiometry.  See Lendenmann v. Principi, 3 Vet. App. 345 (1992).  The primary requirement imposed on the examiner was to assess whether the results were valid for rating purposes, which the exam report reflects was done.  

Other than the Veteran's statements regarding his perception that the 2013 VA examination was flawed, there is no indication from the record that the examination did not include the proper testing or was otherwise inadequate.  Given the stated findings within the March 2013 VA examination, the Board concludes that an adequate examination was performed in March 2013 that showed improvement consistent with a reduction from 30 percent to zero percent under the provisions of 38 C.F.R. § 4.85. 

Although the Veteran is competent to report the symptoms he experiences, he is not competent to provide the specific information required to rate the disability under the schedular criteria.  The objective medical evidence shows an improvement in his audiological test results, and thus an improvement in his bilateral hearing loss disability.  

Under the circumstances, the Board concludes that the RO's rating action to effectively reduce the Veteran's disability rating for hearing loss from 30 to zero percent, effective June 1, 2014, was proper as his speech discrimination testing had improved.  Accordingly, this appeal is denied.  38 C.F.R. §§ 4.3, 4.7.


ORDER

The reduction in rating for bilateral hearing loss from 30 to zero percent was proper. 

REMAND

During the October 2017 Board hearing, the Veteran testified that his hearing loss had worsened.  Thus, remand is necessary to afford the Veteran a new VA examination.  Snuffer v. Gober, 10 Vet. App. 400 (1997).

Accordingly, the case is REMANDED for the following action:

1. Schedule the Veteran for VA examination with an examiner other than who performed the March 2013 exam, preferably at a facility in Beaumont, Texas or Lake Charles, Louisiana.  The claims file should be made available to and reviewed by the examiner and all necessary tests should be performed.  All findings should be reported in detail.

2. After completing the above development, including any additional development that may be warranted, readjudicate the appeal.

The Veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

This claim must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C. §§ 5109B, 7112 (2012)


____________________________________________
H.M.WALKER
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs