Citation Nr: 20051002 Decision Date: 07/31/20 Archive Date: 07/31/20 DOCKET NO. 15-35 983 DATE: July 31, 2020 ORDER The reduction from an 80 percent rating to a noncompensable rating for bilateral hearing loss, effective from September 1, 2015, was proper. An initial rating in excess of 10 percent prior to August 22, 2012, 80 percent from August 22, 2012 until September 1, 2015, and a compensable rating after September 1, 2015, for bilateral hearing loss is denied. FINDINGS OF FACT 1. In a December 2011 rating decision, the Agency of Original Jurisdiction (AOJ) granted service connection for bilateral hearing loss and assigned an initial 10 percent rating, effective May 26, 2011. 2. In a March 2013 rating decision, the AOJ increased the disability rating for bilateral hearing loss to 80 percent, effective August 22, 2012. 3. In September 2014, the AOJ notified the Veteran of a proposal to reduce the disability rating for his service-connected bilateral hearing loss from an 80 percent rating to a noncompensable rating, as well as the 60-day period for the submission of evidence and the right to request a predetermination hearing within 30 days. 4. In a June 2015 rating decision, the AOJ effectuated the reduction of the disability rating for the Veteran’s service-connected bilateral hearing loss from an 80 percent rating to a noncompensable rating, effective September 1, 2015. 5. The evidence at the time of the reduction demonstrated that the Veteran’s bilateral hearing loss had materially improved, to include improvement in the ability to function under the ordinary conditions of life and work. 6. Prior to August 22, 2012, the Veteran had no worse than Level V hearing acuity in the right ear and Level IV hearing acuity in the left ear. 7. From August 22, 2012 to September 1, 2015, the Veteran had no worse than Level IX hearing acuity in the right ear and Level XI hearing acuity in the left ear. 8. Since September 1, 2015, there is no competent audiometric data on which to predicate an increased rating. CONCLUSIONS OF LAW 1. The reduction from an 80 percent rating to a noncompensable rating for bilateral hearing loss, effective from September 1, 2015, was proper. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.105, 3.344, 4.1, 4.2, 4.10, 4.13, 4.85, Diagnostic Code 6100. 2. The criteria for an initial rating in excess of 10 percent prior to August 22, 2012, in excess of 80 percent from August 22, 2012 to September 1, 2015, and a compensable rating since September 1, 2012 for bilateral hearing loss have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.85, Diagnostic Code 6100. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 1958 to January 1962. Unfortunately, the Veteran died in March 2017 during the pendency of this appeal; however, his surviving spouse has been substituted as the appellant to continue his appeal. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a rating decision issued in March 2013 by a Regional Office (RO) of the Department of Veterans Affairs (VA). During his lifetime, the Veteran requested to participate in a Board hearing, but died before the hearing could be scheduled. After the Veteran’s death, the appellant initially expressed her desire to participate in a Board hearing, and accordingly she was scheduled to participate in such a hearing in August 2019. However, she withdrew her hearing request prior to the hearing date. Thereafter, the Board remanded this case in September 2019 and February 2020 for additional development, and the case has now been returned to the Board for further appellate review. 1. Whether the reduction from an 80 percent rating to a noncompensable rating for bilateral hearing loss, effective from September 1, 2015, was proper. 2. Entitlement to an initial rating in excess of 10 percent prior to August 22, 2012, in excess of 80 percent from August 22, 2012 to September 1, 2015, and a compensable rating after September 1, 2015, for bilateral hearing loss. During his lifetime, the Veteran sought an increased rating for his service-connected bilateral hearing loss, asserting that he was entitled to a 100 percent rating based on the severity of his hearing impairment, and he further disagreed with the AOJ’s decision to reduce his disability rating from an 80 percent to a noncompensable (0 percent) rating. Currently, the appellant continues these assertions. As an initial matter, with regard to the AOJ’s decision to reduce the Veteran’s disability rating, there are certain procedural requirements that must be met, or the rating reduction is void ab initio. Specifically, those requirements are applicable here, when there was a reduction in evaluation of a service-connected disability, and the lower evaluation resulted in a reduction or discontinuance of compensation payments currently being made. The reduction must be made effective the last day of the month in which a 60-day period from the date of notice to the payee expires. The veteran must also be notified of the proposed reduction, as well as the fact that he or she has 60 days to present evidence showing why the reduction should not be implemented, and that he or she may request a hearing within 30 days of the reduction proposal. 38 C.F.R. § 3.105(e). The Board observes that the AOJ complied with the requirements of § 3.105(e) in that the Veteran was informed of the proposed action in a September 2014 rating decision. In the notice accompanying this rating decision, the AOJ further notified the Veteran of the opportunity to present additional evidence within a 60-day period as well as his right to request a personal hearing. Thus, the Board finds that the notice requirements of 38 C.F.R. § 3.105(e) have been met. Thereafter, the reduction was effectuated in the June 2015 rating decision on appeal, which reduced the rating assigned for his bilateral hearing loss from an 80 percent rating to a noncompensable rating, effective as of September 1, 2015. Given this conclusion that the AOJ complied with the procedural requirements applicable to the Veteran’s rating reduction, the next query is whether the circumstances allowed the AOJ to initiate this reduction. The criteria governing certain rating reductions for certain service-connected disabilities is found in 38 C.F.R. § 3.344. The United States Court of Appeals for Veterans Claims (Court) stated that this regulation applied to ratings that had been continued for long periods of time at the same level (five years or more). Brown v. Brown, 5 Vet. App. 413 (1993). In the present case, the 80 percent rating for the Veteran’s bilateral hearing loss was in effect from August 22, 2012, to September 1, 2015, i.e., less than 5 years. Thus, the provisions of 38 C.F.R. § 3.344 pertaining to stabilization of disability evaluations do not apply, and reexamination disclosing improvement will warrant a rating reduction. 38 C.F.R. § 3.344 (c). Nevertheless, the Court noted in Brown that there are several general VA regulations that apply to all rating reductions regardless of whether the rating has been in effect for five years or more. Id. at 420-421. Specifically, 38 C.F.R. § 4.1 requires that each disability be viewed in relation to its history. Furthermore, 38 C.F.R. § 4.13 provides that the rating agency should assure itself that there has been an actual change in the condition, for better or worse, and not merely a difference in the thoroughness of the examination or in use of descriptive terms. Additionally, in any rating reduction case, not only must it be determined that an improvement in a disability has actually occurred, but that such improvement reflects improvement in ability to function under ordinary conditions of life and work. Brown, 5 Vet. App. at 420-21; see 38 C.F.R. §§ 4.2, 4.10. A claim as to whether a rating reduction was proper must be resolved in the Veteran’s favor unless the Board concludes that a fair preponderance of evidence weighs against the claim. Id. In considering the propriety of a reduction, the Board must focus on the evidence of record available to the RO at the time the reduction was effectuated, although post-reduction medical evidence may be considered for the limited purpose of determining whether the condition had demonstrated actual improvement. Dofflemyer at 277. Given this framework, the Board will now examine the evidence throughout the rating period, so as to determine whether an increased rating was warranted at any point during the appeal period, and whether the rating reduction implemented therein was supported by the evidence of record. In doing so, the Board must apply regulations regarding the assigment of disability ratings, which state that such ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the veteran working or seeking work. 38 C.F.R. § 4.2. All reasonable doubt will be resolved in the claimant’s favor. 38 C.F.R. § 4.3. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. Separate ratings can be assigned for separate periods based on the facts found - a practice known as “staged” ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Staged ratings are appropriate whenever the factual findings show distinct periods where the service-connected disability exhibits symptoms that would warrant different ratings. Id. The Veteran’s service-connected bilateral hearing loss has been evaluated pursuant to 38 C.F.R. § 4.85, Diagnostic Code 6100. Ratings of hearing loss range from a noncompensable rating to a 100 percent rating based on organic impairment of hearing acuity as measured by the results of speech discrimination tests combined with the average hearing threshold levels as measured by pure tone audiometry tests in the frequencies 1000, 2000, 3000, and 4000 cycles per second. To rate the degree of disability for service-connected hearing loss, the Rating Schedule has established eleven auditory acuity levels, designated from Level I, for essentially normal acuity, through Level XI, for profound deafness. 38 C.F.R. § 4.85(h), Table VI. In order to establish entitlement to a compensable rating for hearing loss, it must be shown that certain minimum levels of the combination of the percentage of speech discrimination loss and average pure tone decibel loss are met. The assignment of disability ratings for hearing impairment is derived by a mechanical application of the Rating Schedule to the numeric designations assigned after audiometric evaluations are rendered. Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). The criteria for rating hearing impairment use controlled speech discrimination tests (Maryland CNC) together with the results of pure tone audiometry tests. These results are then charted on Table VI, or Table VIA in exceptional cases as described in 38 C.F.R. § 4.86, and Table VII, as set out in the Rating Schedule. 38 C.F.R. § 4.85. An exceptional pattern of hearing loss occurs when the pure tone threshold at 1000, 2000, 3000, and 4000 Hertz is 55 decibels or more, or when the pure tone threshold is 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hertz. 38 C.F.R. § 4.86. As an initial matter, the Board notes that while the Veteran filed a disagreement with the March 2013 rating decision that granted an 80 percent increased rating for his bilateral hearing loss, asserting that the severity of his hearing loss warranted a 100 percent rating, the Veteran’s August 2012 increased rating claim from which this March 2013 rating decision stems was filed within one year of the December 2011 rating decision that granted service connection for bilateral hearing loss and assigned an initial 10 percent rating. Accordingly, the Board finds that the Veteran’s August 2012 increased rating claim tolled the finality of the December 2011 rating decision’s assignment of an initial 10 percent rating, such that the instant appeal encompasses that initial 10 percent rating, as well. Increased Rating for First Rating Period With regard to whether a rating in excess of 10 percent is warranted for the first appeal period, which spans from May 26, 2011, the date of the grant of service connection, to August 22, 2012, the date the Veteran was awarded an 80 percent increased rating, the Board notes that the only audiometric data from this rating period was recorded during the Veteran’s December 2011 VA audiological examination. Testing performed at this time revealed pure tone thresholds in decibels at 1000, 2000, 3000, and 4000 Hertz, respectively: 50, 55, 65, and 80 in the right ear, and 50, 60, 75, and 80 in the left ear. The average decibel loss was 62.5 in the right ear and 66.25 in the left ear. The Veteran had speech discrimination scores of 68 percent in the right ear and 80 percent in the left ear. (When initial speech discrimination testing revealed lower percentages, the Veteran was retested with modified performance intensity function in order to confirm the initial test result’s accuracy, and the latter modified testing reveal the testing results of 68 and 80 percent.) At such time, the Veteran reported that his bilateral hearing loss resulted in his difficulty hearing and understanding conversations. As no exceptional pattern of hearing loss is shown, the aforementioned audiometric findings result in hearing acuity of Level V in the right ear and Level IV in the left ear, which warrants a 10 percent rating. 38 C.F.R. § 4.85, Tables VI and VII. Thus, these VA examination findings, which comprise the sole audiometric data available for this appeal period, fail to reflect a basis for awarding a rating higher than 10 percent. Increased Rating for Second Rating Period With regard to the next appeal period, which spans from August 22, 2012 to September 1, 2015, when the Veteran is in receipt of an 80 percent rating, the Board finds that the evidence from this rating period fails to reflect a basis for awarding the next higher rating of 100 percent. Specifically, the audiometric data obtained during the three VA examinations and one private evaluation performed during this appeal period fail to reflect a basis for awarding a rating higher than 80 percent. During the Veteran’s November 2012 VA examination, audiometric testing revealed pure tone thresholds in decibels at 1000, 2000, 3000, and 4000 Hertz, respectively: 70, 95, 100, and 105 in the right ear, and 105 in all four frequencies in the left ear. The average decibel loss was 92.5 in the right ear and 105 in the left ear. The VA examiner recorded a discrimination score of 8 percent in the right ear, with a notation that speech discrimination testing could not be performed in the left ear. The examiner then concluded that the use of the speech discrimination score is not appropriate for this Veteran because of language difficulties, cognitive problems, inconsistent speech discrimination scores, etc., that make combined use of puretone average and speech discrimination scores inappropriate. During the examination, the Veteran reported that his bilateral hearing loss resulted in his difficulty hearing and understanding conversations. Given the examiner’s conclusion that speech discrimination scores were not an appropriate reflection of the Veteran’s hearing loss at this time, the use of Table VIA is warranted, and the aforementioned audiometric findings result in hearing acuity of Level IX in the right ear and Level XI in the left ear, which warrants an 80 percent rating. 38 C.F.R. § 4.85, Tables VIA, VII. During the Veteran’s January 2013 VA examination, audiometric testing revealed pure tone thresholds in decibels at 1000, 2000, 3000, and 4000 Hertz, respectively: 70, 75, 85, and 90 in the right ear, and 75, 95, 100, and 105 in the left ear. The average decibel loss was 80 in the right ear and 93.75 in the left ear. The Veteran had speech discrimination scores of 48 percent in the right ear and 12 percent in the left ear; however, the VA examiner also concluded that the use of the speech discrimination scores is not appropriate for this Veteran because of language difficulties, cognitive problems, inconsistent speech discrimination scores, etc., that make combined use of puretone average and speech discrimination scores inappropriate. At such time, the Veteran reported that his bilateral hearing loss resulted in his difficulty hearing and understanding conversations. As an aside, the Board notes that while not applicable for rating purposes, as it does not include a measurement of all four puretone thresholds considered for rating purposes, the Veteran underwent an Auditory Brainstem Response (ABR) and Otoacoustic Emissions evaluation, which was also conducted in January 2013 several weeks after his January 2013 VA examination, to determine hearing integrity, given the disparate results between the Veteran’s 2011 and 2012 VA examinations. This method of measuring hearing acuity measures brainwave responses to auditory cues, thereby negating the need for active participation on the part of the Veteran. A puretone conversion of these responses was recorded for the puretone thresholds at 1000, 2000, and 4000 Hertz (this form of testing does not include a measurement at 3000 Hertz), with thresholds recorded as 25, 25, and 40 in the right ear and 25, 70, and 40 in the left ear. Given the January 2013 VA examiner’s conclusion that speech discrimination scores were not an appropriate reflection of the Veteran’s hearing loss at this time, the use of Table VIA is warranted, and the aforementioned audiometric findings result in hearing acuity of Level VII in the right ear and Level IX in the left ear, which warrants a 50 percent rating. 38 C.F.R. § 4.85. Tables VIA, VII. During the Veteran’s August 2014 VA examination, audiometric testing revealed the following pure tone thresholds in decibels at 1000, 2000, 3000, and 4000 Hertz, respectively: 30, 40, 65, and 65 in the right ear, and 35, 50, 65, and 75 in the left ear. The average decibel loss was 50 in the right ear and 56 in the left ear. The Veteran had speech discrimination scores of 92 percent in the right ear and 88 percent in the left ear. At such time, the Veteran reported that his bilateral hearing loss resulted in his difficulty hearing and understanding conversations. As no exceptional pattern of hearing loss is shown, the aforementioned audiometric findings result in hearing acuity of Level I in the right ear and Level II in the left ear, which warrants a noncompensable (0 percent) rating. 38 C.F.R. § 4.85. Tables VI and VII. Thereafter, the Veteran submitted a September 2014 private audiological evaluation, performed by the QTC examiner (a private provider occasionally contracted by VA to perform certain VA examinations) who also performed the Veteran’s 2011 and 2013 VA audiological examinations. In this report, the audiologist provided a graph of the Veteran’s audiological results, which the Board has interpreted to reveal the following pure tone thresholds in decibels at 1000, 2000, 3000, and 4000 Hertz, respectively: 55, 65, 75, and 80 in the right ear, and 80, 85, 85, and 100 in the left ear. Based on this interpretation, the average decibel loss was 68.75 in the right ear and 87.5 in the left ear. The Veteran had speech discrimination scores of 64 percent in the right ear and 40 percent in the left ear. At such time, the Veteran reported that his bilateral hearing loss resulted in his difficulty hearing and understanding speech, especially in the presence of background noise. As no exceptional pattern of hearing loss is shown, the aforementioned audiometric findings result in hearing acuity of Level VII in the right ear and Level X in the left ear, which warrants a 60 percent rating. 38 C.F.R. § 4.85, Tables VI and VII. Thus, these audiological test results, which comprise the only audiometric data available for the appeal period spanning from August 22, 2012 to September 1, 2015, which warrant assignments of 80, 50, 0, and 60 percent ratings, fail to reflect a basis for awarding a rating higher than 80 percent. Propriety of Reduction Implemented at Close of Second Rating Period Thereafter, the AOJ proposed to reduce the Veteran’s 80 percent rating to a noncompensable rating in a September 2014 rating decision, which was proposed prior to VA’s receipt of the September 2014 private audiological evaluation (as this evaluation was not received by VA until June 2015). As set forth above, the Board finds that the AOJ followed the appropriate procedural requirements when informing the Veteran of this proposed reduction, which was ultimately implemented in a September 2015 rating decision, effective as of September 1, 2015. After VA received this September 2014 private audiological evaluation in June 2015, the AOJ requested a medical opinion addressing the conflicting audiometric data of record. In that regard, the record contained vastly differing audiometric data, with the 2011 examination reflecting findings warranting a 10 percent rating; the 2012 examination reflecting findings warranting an 80 percent rating; the 2013 examination reflecting data warranting a 60 percent rating; the January 2013 subsequent ABR test results reflecting results inconsistent with the 2013 examination findings (and more consistent with the prior 2011 VA examination findings and future 2014 VA examination findings); the August 2014 VA examination reflecting data warranting a 0 percent rating; and the September 2014 private audiological data warranting a 60 percent rating. In July 2015, the reviewing audiologist opined that the private audiologist (who performed the Veteran’s 2011 and 2012 examinations for VA rating purposes and who performed a private audiological evaluation in September 2014) produced, in this examiner’s experience, inflated, and therefore unreliable, audiometric data. Accordingly, this VA audiologist opined that the Veteran’s August 2014 VA examination results (which were rendered by a VA audiologist with no such history of producing unreliable data, and which warrant a noncompensable rating) demonstrated the most accurate data reflecting the Veteran’s actual hearing acuity. Thereafter, the AOJ effectuated a reduction to a noncompensable rating, as of September 1, 2015. Upon appeal of this matter to the Board, the Board twice remanded this claim, requesting a legally adequate retrospective medical opinion addressing the conflicting audiometric data of record, so as to determine if the rating reduction was indeed warranted. Specifically, the Board found that the June 2015 VA medical opinion, as well as the subsequent November 2019 VA medical opinion authored by the same audiologist, engaged in a credibility analysis regarding the practitioner who conducted the Veteran’s 2011, 2012 VA examinations and September 2014 private evaluation, whereas credibility determinations are within the sole purview of the Board. A legally sufficient retrospective medical opinion, authored in February 2020, was obtained pursuant to the Board’s most recent remand directives. In this February 2020 opinion, the VA audiologist noted that upon reviewing the audiometric data compiled from 2011 to 2016, the data varied greatly, including data obtained by the same provider. Further, the varying/improving bone conduction study results spanning this period, which should reflect permanent levels of hearing acuity, further undermine the accuracy of the audiometric data recorded during several of the Veteran’s examinations. The audiologist further opined that as the ABR study results negate the need for Veteran participation and the possibility of testing provider error, and that these results were only consistent with the audiometric data recorded during the Veteran’s August 2014 VA examination, this August 2014 VA examination audiological test results were the most accurate measurement of the Veteran’s hearing acuity during the appeal period. The Board acknowledges the Veteran’s assertions during his lifetime, and the appellant’s recent assertions, that the severity of the Veteran’s hearing loss warranted a 100 percent rating, such that the AOJ’s decision to decrease his rating from 80 to 0 percent was erroneous. Indeed, the Board is sympathetic to these assertions and does not doubt the sincerity of the Veteran or the appellant’s belief. However, while the Veteran and the appellant’s subjective assessment of the Veteran’s hearing loss was that the Veteran had a severe impairment, reliable audiometric data is the objective means by which VA must assesses hearing acuity and determines appropriate disability ratings. Moreover, the Board notes that the majority of appeals regarding appropriate hearing loss disability ratings adjudicated by the Board are from veterans who have noncompensable or 10 percent ratings, as ratings such as the 100 percent rating sought by the Veteran and the appellant contemplate the much more rare scenario of profound, complete deafness. Furthermore, as opinions regarding the severity of hearing acuity require subject matter expertise and must be predicated on audiometric data, the Board finds that the Veteran and the appellant’s opinions regarding the severity of the Veteran’s hearing loss cannot be accorded probative value. See Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007) (holding that a lay person is not considered competent to testify regarding medically complex issues). Conversely, the February 2020 VA audiologist’s opinion authored by someone with such expertise, based upon an accurate medical history and the audiometric data of record, and which is supported by detailed, cogent rationales, is accorded great probative weight. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008) (holding that to have probative value, the opinion provider must be fully informed of the pertinent factual premises, provide a fully articulated opinion, and provide a supportive reasoned analysis). As the more probative evidence of record supports a conclusion that, as of September 1, 2015, the Veteran’s hearing acuity was accurately reflected by and consistent with a noncompensable rating, the Board finds that the AOJ’s reduction effectuated as of September 1, 2015 was supported by the evidence of record and was therefore proper. Increased Rating for Third Rating Period As to the rating period spanning from September 1, 2015 until the Veteran’s death on March 28, 2017, during which the Veteran was in receipt of a noncompensable rating, the only audiometric data from this rating period is a March 2016 private audiological evaluation conducted by the practitioner who was contracted to conducted the Veteran’s 2011 and 2012 VA examinations and who also conducted a private September 2014 evaluation. However, as noted by the VA audiologist who reviewed the Veteran’s claims file in 2015 and 2019 and by the VA audiologist who rendered the February 2020 medical opinion discussed above, the audiological data compiled by this audiologist is inconsistent with other audiological data of record, including the 2013 ABR, and internally inconsistent with other audiological data created by this same practitioner. While not within the purview of clinicians rendering medical opinions, the Board can make its own assessments of the reliability of the audiometric data, and the Board finds that, as a whole, the audiometric data created by this practitioner is not reliable for rating purposes. Given this conclusion, there is no viable audiometric data to evaluate in conjunction with this rating period, and as such, there is no basis for assigning an increased disability rating. In conclusion, the Board finds that the preponderance of the evidence is against the Veteran’s claims seeking increased ratings for any stage of the appeal period and challenging the propriety of the rating reduction implemented therein. Accordingly, there is no reasonable doubt to resolve on the Veteran’s behalf, and   therefore an increased rating and restoration of the reduced rating are not warranted. L. M. BARNARD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board N. Northcutt, 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.