Citation Nr: 20032325 Decision Date: 05/07/20 Archive Date: 05/07/20 DOCKET NO. 18-46 019A DATE: May 7, 2020 ORDER New and material evidence not having been submitted, the petition to reopen a claim of service connection for cerebrovascular accident (CVA) and transient ischemic attacks (TIA) is denied. New and material evidence not having been submitted, the petition to reopen a claim of service connection for an acquired psychiatric disorder is denied. Reduction of the award from 40 percent to 20 percent rating for bilateral hearing loss was improper, and the 40 percent rating is restored, effective December 1, 2016. FINDINGS OF FACT 1. In an unappealed rating decision issued in August 2015, the RO denied service connection for an acquired psychiatric disorder (claimed as posttraumatic stress disorder (PTSD), anxiety, and dementia), and CVA and TIA. The Veteran was notified of the decision but did not file a notice of disagreement. 2. Evidence added to the record since the final August 2015 denial is either cumulative or redundant of evidence previously considered, does not relate to an unestablished fact necessary to substantiate the claim, and does not raise a reasonable possibility of substantiating the claim of service connection for CVA and TIA. 3. Evidence added to the record since the final August 2015 denial is either cumulative or redundant of evidence previously considered, does not relate to an unestablished fact necessary to substantiate the claim, and does not raise a reasonable possibility of substantiating the claim of service connection for an acquired psychiatric disorder. 4. In August 2015, the RO grant the Veteran service connection for bilateral hearing loss and assigned an initial rating of 40 percent, based on an August 2015 VA examination report. 5. In a June 2016 rating decision, the RO proposed to reduce the Veteran’s rating from 40 to 20 percent, based on a June 2016 VA examination finding; the RO notified the Veteran of the contemplated action, and the reasons therefor, and informed him of his right to submit additional evidence and to appear at a hearing. 6. In September 2016, the RO implemented the proposed reduction to 20 percent, effective from December 1, 2016. 7. Resolving all reasonable doubt in the Veteran’s favor, the evidence of record at the time of the reduction does not show that the Veteran’s service-connected bilateral hearing loss had improved to the point that he was better able to function under the ordinary conditions of life and work. CONCLUSIONS OF LAW 1. The August 2015 RO decision that denied the claim of entitlement to service connection for an acquired psychiatric disorder, and CVA and TIA is final. 38 U.S.C.§ 7105(c) (West 2012); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2018). 2. New and material evidence has not been received to reopen the claim for service connection for an acquired psychiatric disorder. 38 U.S.C. § 5108 (West 2012); 38 C.F.R. § § 3.156 (a) (2018). 3. New and material evidence has not been received to reopen the claim for service connection for CVA and TIA. 38 U.S.C. § 5108 (West 2012); 38 C.F.R. § § 3.156 (a) (2018). 4. The reduction of the 40 percent rating for bilateral hearing loss was improper. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.105, 3.344, 4.71a, Diagnostic Code 6100 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 1960 to March 1963. Prior to discussing the appeal at hand, the Board would be remiss if it did not recognize the Veteran’s outstanding service. The Veteran was clearly a credit to the U.S. Air Force and to his family, and his service to his country is greatly appreciated. The Veteran died in October 2017. The appellant is the Veteran’s surviving spouse and was recognized as his substitute in April 2018. Additionally, the Board notes the August 2015 rating decision denied the Veteran’s claims of entitlement to service connection for PTSD, dementia, and anxiety individually. In the June 2016 petition to reopen, the Veteran only listed PTSD. However, in order to afford the appellant every opportunity to substantiate the claim, the Board finds that the claim should be recharacterized as an acquired psychiatric disorder, which encompasses all of the diagnosed psychiatric disorders. See Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009) (holding that the scope of a mental health disability claim includes any mental disability that may reasonably be encompassed by the claimant's description of the claim, reported symptoms, and the other information of record). New and Material Evidence The Veteran’s claims of entitlement to service connection for an acquired psychiatric disorder, and CVA and transient ischemic attacks was previously denied in an August 2015 rating decision. The Veteran did not appeal this rating decision. As such, that decision is final. 38 U.S.C. § 7105 (West 2012); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2018). Generally, a claim which has been denied in an unappealed Board decision or an unappealed RO decision may not thereafter be reopened and allowed. 38 U.S.C. § 7104(b), 7105(c). The exception to this rule is 38 U.S.C. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. New evidence means existing evidence not previously submitted to agency decision makers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. §§ 3.156(a). The Court has held that the determination of whether newly submitted evidence raises a reasonable possibility of substantiating the claim should be considered a component of the question of what is new and material evidence, rather than a separate determination to be made after the Board has found that evidence is new and material. See Shade v. Shinseki, 24 Vet. App. 110 (2010). The Court further held that new evidence would raise a reasonable possibility of substantiating the claim if, when considered with the old evidence, it would at least trigger the Secretary’s duty to assist by providing a medical opinion. Id. For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). 1. CVA and TIA In previously denying the Veteran’s claim for service connection for CVA and TIA, the evidence of record included available service treatment records that failed to show any complaints, treatment, or diagnoses for this disorder. Further, while VA and private treatment records show treatment for both CVA and TIA, the RO denied the claim on the basis there was no evidence that supports a finding that the diagnosed disorders are due to his military service. Prior to his passing, the Veteran filed a petition to reopen this claim in June 2016, identified as only TIA. The June 2016 rating decision continued the previous denial. The evidence received since the last prior final denial of the claim in August 2015 includes additional VA and private treatment records; additional statements by the Veteran in support of his claim; and, testimony by the appellant during her April 2019 Board hearing. The VA and private treatment records do not contain any evidence etiologically attributing the diagnosed CVA and TIA to the Veteran’s military service and, instead, only note the history of treatment for the disorders. As there are no new contentions or evidence to support this claim, the evidence added to the record is either cumulative, or unrelated to the claim. As new and material evidence has not been submitted, the claim is not reopened, and the appeal as to this issue is denied. 2. Acquired psychiatric disorder In previously denying the Veteran’s claim for service connection for various psychiatric disorders, to include PTSD, dementia, and anxiety, the evidence of record included available service treatment records that failed to show any complaints, treatment, or diagnoses for a psychiatric disorder; VA and private treatment records showing diagnoses for only dementia and anxiety. See February 2015 VA treatment record. The evidence of record at the time of the August 2015 rating decision did not include a diagnosis for PTSD. Prior to his passing, the Veteran filed a petition to reopen the claim for service connection for PTSD in June 2016. As noted above, the Board expanded the claim to include all diagnosed psychiatric disorders. The June 2016 rating decision continued the previous denial. The evidence received since the last prior final denial of the claim in August 2015 includes additional VA and private treatment records; additional statements by the Veteran in support of his claim; and, testimony by the appellant during her April 2019 Board hearing. The VA and private treatment records do not contain any evidence etiologically attributing the diagnosed dementia or anxiety to the Veteran’s military service and, instead, only note the history of treatment for the disorders. With respect to PTSD, the record still does not include a diagnosis of this disorder. As there are no new contentions or evidence to support this claim, the evidence added to the record is either cumulative, or unrelated to the claim. As new and material evidence has not been submitted, the claim is not reopened, and the appeal as to this issue is denied. Rating Reduction By way of background, in an August 2015 rating decision, the RO granted the Veteran entitlement to service connection for bilateral hearing loss, and assigned an initial disability rating of 40 percent, effective from May 23, 2014 pursuant to Diagnostic Code 6100. In June 2016, the Veteran filed for an increased rating for his hearing loss and, in a June 2016 rating decision, the RO notified the Veteran of a proposal to reduce the disability rating for his service-connected bilateral hearing loss from 40 percent to 20 percent. In a September 2016 rating decision, the RO effectuated the reduction of the disability rating from 40 percent to 20 percent, effective December 1, 2016. The Veteran subsequently appealed the decision. In any case involving a rating reduction, the factfinder must ascertain, based upon a review of the entire record, whether the evidence reflects an actual change in the disability and whether the examination reports reflecting such change are based upon a thorough examination. To warrant a reduction, it must be determined not only that an improvement in the disability level has actually occurred, but also that such improvement actually reflects an improvement in the ability to function under the ordinary conditions of life and work. Brown v. Brown, 5 Vet. App. 413, 420-21 (1993) (citing 38 C.F.R. §§ 4.1, 4.2, 4.10, 4.13). When a rating has continued for a long period at the same level (5 years or more), any rating reduction must be based on an examination that is as complete as the examinations that formed the basis for the original rating and that the condition not be likely to return to its previous level. 38 C.F.R. § 3.344(a), (b), (c); Kitchens v. Brown, 7 Vet. App. 320, 324 (1995). 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) and (b) are inapplicable, as set forth in 38 C.F.R. § 3.344(c). In such cases, 38 C.F.R. § 3.344(c) states that reexamination disclosing improvement will warrant reduction in rating. In the instant case, the 40 percent rating was in place less than five years at the time of the reduction as such had been awarded as of May 23, 2014. Therefore, evidence of improvement from reexamination is sufficient for the reduction. See 38 C.F.R. § 3.344(c). The reduction of a rating generally must have been supported by the evidence on file at the time of the reduction, but pertinent post-reduction evidence favorable to restoring the rating must also be considered. Dofflemeyer v. Derwinski, 2 Vet. App. 277 (1992). If there is an approximate balance of positive and negative evidence regarding any material issue, all reasonable doubt shall be resolved in favor of the Veteran. In other words, a rating reduction must be supported by a preponderance of the evidence. 38 U.S.C. § 5107(a); see also Brown, 5 Vet. App. at 421. Following a review of the evidence, the Board finds that the reduction in the rating for bilateral hearing loss from 40 percent to 20 percent, effective from December 1, 2016, was not proper. See 38 C.F.R. § 3.344. Evaluations of bilateral hearing loss range from noncompensable (i.e., 0 percent) to 100 percent based on organic impairment of hearing acuity, as measured by a controlled speech discrimination test (Maryland CNC) and the average hearing threshold, as measured by puretone audiometric tests at the frequencies of 1,000, 2,000, 3,000 and 4,000 Hertz. The rating schedule establishes 11 auditory acuity levels designated from Level I, for essentially normal hearing acuity, through level XI for profound deafness. Under 38 C.F.R. § 4.85, Table VI (Numeric Designation of Hearing Impairment Based on Puretone Threshold Average and Speech Discrimination) is used to determine a Roman numeral designation (I through XI) for hearing impairment based on a combination of the percent of speech discrimination (horizontal rows) and the puretone threshold average (vertical columns). The Roman numeral designation is located at the point where the percentage of speech discrimination and puretone average intersect. 38 C.F.R. § 4.85(b). The puretone threshold average is the sum of the puretone thresholds at 1,000, 2,000, 3,000 and 4,000 Hertz, divided by 4. This average is used to determine the Roman numeral designation for hearing impairment. 38 C.F.R. § 4.85(d). Table VII (Percentage Evaluations for Hearing Impairment) is used to determine the percentage evaluation by combining the Roman numeral designations for hearing impairment of each ear. The horizontal rows represent the ear having the better hearing and the vertical columns the ear having the poorer hearing. The percentage evaluation is located at the point where the row and column intersect. 38 C.F.R. § 4.85(e). VA regulations also provide that, in cases of exceptional hearing loss, when the puretone thresholds at each of the four specified frequencies (1,000, 2,000, 3,000 and 4,000 Hertz) is 55 decibels or more, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or VIa, whichever results in the higher numeral. Each ear will be considered separately. 38 C.F.R. § 4.86(a). The provisions of 38 C.F.R. § 4.86(b) further provide that, when the puretone threshold is 30 decibels or less at 1,000 Hertz, and 70 decibels or more at 2,000 Hertz, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or VIa, whichever results in the higher numeral. That numeral will then be elevated to the next higher Roman numeral. Each ear will be considered separately. In the August 2015 VA examination, which served as the basis for the grant of service connection. Upon examination, the examiner found the following: HERTZ 500 1000 2000 3000 4000 RIGHT 35 55 65 70 75 LEFT 40 35 85 105+ 100 The average puretone threshold reading for the right ear was 66 decibels and 81 decibels for the left ear. Speech audiometry revealed speech recognition ability of 68 percent in the right ear and of 52 percent in the left ear. Application of these pure tone threshold average levels and speech recognition ability (percentage of discrimination) using Table VI yields values of Level VII hearing for the right ear and Level IV for the left ear. Level VII and Level IV correspond to a 20 percent rating pursuant to Table VII. The Veteran is also entitled to consideration alternatively under the special provisions of § 4.86(a) for the right ear only, due to the fact his puretone threshold readings were higher than 55 decibels at each of the 1,000, 2,000, 3,000, and 4,000 Hertz readings for the right ear. Pursuant to Table VIA, using only the puretone threshold average, the Veteran’s right ear warrants a value of Level V hearing loss for the right ear. Applying that result to Table VII, Level IV and Level V correspond to only a 10 percent rating. As noted, the August 2015 rating decision granted service connection for this disability and applied the findings of the August 2015 VA examination in assigning the initial rating. As for any functional effect of his hearing loss on activities of daily living, the examination did not include any comments. In June 2016, following his claim for an increased rating, the Veteran was again scheduled for a VA examination, also in June 2016. At that time, the VA examiner specifically noted that the Veteran did not have hearing aids. Upon examination, the examiner found the following: HERTZ 500 1000 2000 3000 4000 RIGHT 30 50 60 60 70 LEFT 30 40 80 105+ 95 The average puretone threshold reading for the right ear was 60 decibels and 80 decibels for the left ear. Speech audiometry revealed speech recognition ability of 76 percent in the right ear and of 68 percent in the left ear. Application of these pure tone threshold average levels and speech recognition ability (percentage of discrimination) using Table VI yields values of Level IV hearing for the right ear and Level VI for the left ear. Level IV and Level VI correspond to a 20 percent rating pursuant to Table VII. The Veteran is not entitled to alternative consideration under the special provisions of § 4.86(a) for either ear, due to the fact his puretone threshold readings were not higher than 55 decibels at each of the 1,000, 2,000, 3,000, and 4,000 Hertz readings. As for any functional effect of his hearing loss on activities of daily living, the examination did not include any comments. Also of record are a significant number of VA and private treatment records showing continued complaints of difficulty hearing, and notations as to decreased hearing acuity. However, there are no audiometric findings in these records that are materially different from the findings noted above. As noted above, the Court has stated that certain regulations “impose a clear requirement that VA rating reductions, as with all VA rating decisions, be based upon review of the entire history of the veteran’s disability.” Brown v. Brown, 5 Vet. App. 413, 420 (1993) (referring to 38 C.F.R. §§ 4.1, 4.2, 4.13). Implicit in the regulations is that any improvement must be of such a nature as to warrant a change in the evaluation. The Brown case articulated three questions that must be addressed in determining whether a rating reduction was warranted by the evidence. First, a rating reduction case requires ascertaining “whether the evidence reflects an actual change in the disability.” Second, it must be determined whether the examination reports reflecting such change were based upon thorough examinations. Third, it must be determined whether the improvement actually reflects an improvement in the veteran’s ability to function under the ordinary conditions of life and work. Brown, 5 Vet. App. at 421. In the present case, the Veteran and appellant contend that the reduction was improper because his bilateral hearing loss disability had not improved and, in fact, he had been issued hearing aids. See October 2016 Notice of Disagreement. During the April 2019 Board hearing, the appellant also testified that when the Veteran was not wearing his hearing aids, she had to be face-to-face with him and scream for him to hear her. The appellant testified that was the case when the Veteran’s rating was at 40 percent. A review of the RO’s August 2015 and June 2016 rating decisions, which pertains to the reduction, demonstrates that the RO appears to have essentially assigned the initially rating of 40 percent in error. In the June 2016 rating decision, which pertained to the reduction, demonstrates that the RO appears to have essentially analyzed the issue of reduction of the 40 percent evaluation as it would a claim for an increased rating. The RO did not address whether there was “an actual improvement in the Veteran’s ability to function under the ordinary conditions of life and work.” Brown, 5 Vet. App. at 421. Moreover, while the Board notes the VA examinations from August 2015 and June 2016 show an improvement in the right ear, the left ear findings stayed fairly consistent. Further, the Board is unconvinced as to whether the June 2016 VA examiner accurately noted the existence of hearing aids, as the Veteran reported needing them in the October 2016 Notice of Disagreement, and the appellant indicated that the Veteran had hearing aids during the time when he was rated at 40 percent. Therefore, the Board finds the showing of consistency in the severity of the left ear hearing acuity and in improvement in the right ear hearing acuity, does not support a finding of “actual improvement.” The appropriate remedy in this case is a restoration of the 40 percent rating for the entire period on appeal, effective from December 1, 2016. See Hayes, 9 Vet. App. at 73. YVETTE R. WHITE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Berry, Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.