Citation Nr: 21063249 Decision Date: 10/13/21 Archive Date: 10/13/21 DOCKET NO. 13-05 162 DATE: October 13, 2021 ORDER Restoration of a 20 percent disability rating for the service-connected bilateral hearing loss, from April 15, 2010 to November 4, 2014, is granted. For the increased rating period from March 3, 2010 to November 4, 2014, an increased disability rating of 40 percent, but no higher, for service connected bilateral hearing loss is granted; for the rating period from November 5, 2014, a disability rating in excess of 50 percent is denied. FINDINGS OF FACT 1. At the time of the reduction of the disability rating for the service connected bilateral hearing loss from a 20 percent disability rating to a 0 percent (noncompensable) disability rating, there had been no actual improvement in the bilateral hearing loss. 2. For the rating period from March 3, 2010 to November 4, 2014, the Veteran's bilateral hearing loss manifested as level VI or level VII hearing in the right ear and level VIII hearing in the left ear. 3. For the rating period from November 5, 2014, the Veteran's bilateral hearing loss manifested as no more than level VIII hearing in the right ear and level IX hearing in the left ear. CONCLUSIONS OF LAW 1. The criteria for restoration of a 20 percent disability rating for the service connected bilateral hearing loss, from April 15, 2010 to November 4, 2014, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.105(e), 3.159, 3.344, 4.1, 4.2, 4.3, 4.10, 4.85, 4.86, Diagnostic Code 6100. 2. Resolving reasonable doubt in favor of the appellant, for the rating period from March 3, 2010 to November 4, 2014, the criteria for a disability rating of 40 percent, but no higher, for the service connected bilateral hearing loss have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 3.326, 4.3, 4.7, 4.10, 4.21, 4.85, 4.86, Diagnostic Code 6100. 3. For the rating period from November 5, 2014, the criteria for an increased disability rating in excess of 50 percent for service connected bilateral hearing loss have not been met or more nearly approximated. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 3.326, 4.3, 4.7, 4.10, 4.21, 4.85, 4.86, Diagnostic Code 6100. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from June 1956 to July 1975. The Veteran died in November 2015. The appellant is the surviving spouse of the Veteran, who is substituted as the appellant for purposes of adjudicating the issues on appeal to completion. See 38 U.S.C. § 5121A (allowing for substitution in case of death of a claimant who dies on or after October 10, 2008). This matter came before the Board of Veterans' Appeals (Board) on appeal from a July 2010 Department of Veterans Affairs (VA) Regional Office (RO) rating decision. The appellant testified at a June 2021 Board hearing before the undersigned Veterans Law Judge. The hearing transcript has been associated with the record. Relevant VA Rating Legal Authority In a rating reduction, not only must it be determined that an improvement in a disability has actually occurred, but also that the improvement actually reflects an improvement in a veteran's ability to function under the ordinary conditions of life and work. Brown v. Brown, 5 Vet. App. 413, 420-21; Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). The provisions of 38 C.F.R. §§ 4.1, 4.2, and 4.10 require that a reduction in rating be based upon review of the entire history of a veteran's disability. VA must then ascertain whether the evidence reflects an actual change in the disability and whether the examination reports reflecting such change are based on thorough examinations. Faust v. West, 13 Vet. App. 342 (2000). VA is not limited, however, to medical indicators of improvement. Rather, VA may rely on non-medical indicators of improvement to show that a veteran is capable of more than marginal employment. Id. The examination reports upon which the reduction is based must be adequate. See Tucker v. Derwinski, 2 Vet. App. 201 (1992) (holding that the failure of the examiner in that case to review the claims file rendered the reduction decision void ab initio). In addressing whether improvement is shown, the comparison point generally is the last examination on which the rating at issue was assigned or continued. See Hohol v. Derwinski, 2 Vet. App. 169 (1992). Where, however, the rating was continued in order to see if improvement was in fact shown, the comparison point could include prior examinations as well. Collier v. Derwinski, 2 Vet. App. 247 (1992). Specific requirements must be met in order for VA to reduce certain ratings assigned for service-connected disabilities. See 38 C.F.R. § 3.344; see also Dofflemyer v. Derwinski, 2 Vet. App. 277 (1992). The requirements for reduction of ratings in effect for five years or more are set forth at 38 C.F.R. § 3.344(a) and (b), which prescribe that only evidence of sustained material improvement under the ordinary conditions of life, as shown by full and complete examinations, can justify a reduction; these provisions prohibit a reduction on the basis of a single examination. See Brown, 5 Vet. App. at 417-18. Where doubt remains, the rating agency will continue the rating in effect, and consider scheduling reexamination 18, 24, or 30 months later. 38 C.F.R. § 3.344(b). Where a rating reduction was made without observance of law, the reduction must be vacated, and the prior rating restored. Schafrath, 1 Vet. App. at 595. In this case, the 20 percent rating for the service connected bilateral hearing loss was in effect for less than five years at the time of the reduction. Accordingly, the provisions of 38 C.F.R. § 3.344(a) do not apply to this rating. Under the provisions of 38 C.F.R. § 3.344(c), when a disability rating has been in effect for less than five years, a reexamination that shows improvement in a disability warrants a reduction in disability benefits. Specifically, it is necessary to ascertain, based upon a review of the entire recorded history of the condition, whether the evidence reflects an actual change in disability and whether examination reports reflecting change are based upon thorough examinations. In addition, it must be determined that an improvement in a disability has actually occurred and that such improvement actually reflects an improvement in the veteran's ability to function under the ordinary conditions of life and work. See Brown at 420-421 (citing 38 C.F.R. §§ 4.1, 4.2, 4.10 and 4.13); 38 C.F.R. § 3.344(c). In determining whether the reduction was proper in this case, the Board must focus upon 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 disability had actually improved. Cf. Dofflemyer, 2 Vet. App. at 281-282. Such after-the-fact evidence may not be used to justify an improper reduction. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) found in 38 C.F.R. Part 4. 38 U.S.C. § 1155. It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21. Where there is a question as to which of two disability ratings shall be applied, the higher rating 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. It is the defined and consistently applied policy of VA to administer the law under a broad interpretation, consistent, however, with the facts shown in every case. When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3. Where an increase in an existing disability rating is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). The relevant temporal focus for adjudicating an increased rating claim is on the evidence concerning the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim. Hart v. Mansfield, 21 Vet. App. 505 (2007). Ratings for service-connected hearing loss range from noncompensable (0 percent) to 100 percent. These ratings 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 audiometry tests in the frequencies 1,000, 2,000, 3,000 and 4,000 cycles per second. In evaluating service connected hearing loss, disability ratings are derived by a mechanical application of the rating schedule to the numeric designations assigned after audiometric evaluations are performed. See Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). Diagnostic Code 6100 provides a table for rating purposes (Table VI) to determine a Roman numeral designation (I through XI) for hearing impairment. The hearing impairment is established by a state licensed audiologist including a controlled speech discrimination and the pure tone threshold average, which is the sum of the pure tone thresholds at 1000, 2000, 3000, and 4000 Hertz (Hz), divided by four. See 38 C.F.R. § 4.85. Table VII is used to determine the percentage rating by combining the Roman numeral designations for hearing impairment of each ear. The horizontal row represents the ear having the poorer hearing and the vertical column represents the ear having the better hearing. 38 C.F.R. § 4.85. Under 38 C.F.R. § 4.86(a), 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 Roman numeral designation for hearing impairment from either Table IV or Table VIa, whichever results in the higher numeral. Each ear is to be evaluated separately. See 38 C.F.R. § 4.86(a). The provisions of 38 C.F.R. § 4.86(b) provide that when the pure tone threshold is 30 decibels or less at 1000 Hz, 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 VIa, whichever results in the higher numeral. That numeral will then be elevated to the next higher Roman numeral. See 38 C.F.R. § 4.86(b). Relevant Evidence The Veteran received a VA audiometric examination in August 2008. At that time, pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 RIGHT 30 60 65 60 LEFT 40 70 70 70 Speech recognition scores conveyed speech discrimination of 68 percent in the right ear and 64 percent in the left ear. Based upon these findings, in an October 2008 rating decision, the Veteran was granted service connection for bilateral hearing loss, with an initial disability rating of 20 percent. On March 3, 2010, VA received the Veteran's claim for an increased disability rating for the service-connected bilateral hearing loss. The Veteran received a VA audiometric examination in April 2010. At that time, pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 RIGHT 35 55 50 50 LEFT 35 55 55 55 Speech recognition scores conveyed speech discrimination of 96 percent in the right ear and 96 percent in the left ear. VA received a notice of disagreement (NOD) in December 2010 disagreeing with the RO's disability rating reduction following the April 2010 VA audiometric examination. Per the NOD, the Veteran advanced that his hearing had never improved, and that he was willing to appear for a new VA examination. VA treatment records reflect that the Veteran sought treatment for decreased hearing in July 2008. At that time, the Veteran was found to be a good candidate for hearing aids. Per a February 2012 VA treatment record, the Veteran complained of decreased hearing ability. In a subsequent February 2013 VA treatment record, the Veteran was found to have significantly decreased hearing as compared to the July 2008 VA treatment records. Further, it was noted that the Veteran had significant participation limitations. The Veteran submitted a private audiometric examination dated February 2013. At that time, the audiogram readings, in decibels, were as follows: HERTZ 1000 2000 3000 4000 RIGHT 50 65 70 70 LEFT 45 65 70 70 Word recognition scores were listed as 68 percent in the right ear and 76 percent in the left ear. The Board notes that it is unclear whether word recognition was tested under the Maryland CNC controlled speech discrimination test. The Veteran received a new VA audiometric examination in November 2014. At that time, pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 RIGHT 80 90 85 95 LEFT 80 95 90 95 Speech recognition scores conveyed speech discrimination of 52 percent in the right ear and 48 percent in the left ear. Based upon these readings, in a March 2015 rating decision the Veteran was granted an increased 50 percent disability rating from November 5, 2014, the date of examination. The appellant and the Veteran's daughters testified at a June 2021 virtual Board hearing. At that time, the witnesses all credibly testified that the Veteran had no demonstrated improvement in hearing loss during the period from 2010 through 2014. Per their testimony, the Veteran had filed a claim for increase in March 2010 because the hearing had been worsening. Per one of the daughters, the Veteran could not hear anyone speaking to him from behind. Further, the witnesses credibly testified that in 2010 the Veteran's demonstrated speech discrimination was more in line with the findings of the VA examiner in November 2014 than the findings of the VA examiner in April 2010. Review of all the evidence of record does not reflect any additional audiometric testing during the rating period on appeal. 1. Restoration of a 20 Percent Disability Rating for Bilateral Hearing Loss from April 15, 2010 to November 4, 2014 is Granted. After a review of all the evidence of record, the Board finds that, at the time of the reduction of the disability rating for the service connected bilateral hearing loss from a 20 percent disability rating to a 0 percent (noncompensable) disability rating, there had been no actual improvement in the bilateral hearing loss. For this reason, the criteria for restoration of a 20 percent disability rating for the service connected bilateral hearing loss, from April 15, 2010 to November 4, 2014, have been met. Having reviewed the lay and medical evidence of record, the Board finds that the speech discrimination scores noted at the time of the April 2010 VA audiometric examination, discussed above, were an aberration. In support of this finding, the Board notes that the April 2008, February 2013, and November 2014 speech discrimination scores were relatively close in number, while the speech discrimination scores from the April 2010 VA audiometric examination were wildly outside the range seen during the aforementioned examinations. VA treatment records during the time period from April 2010 through November 2014 reflect that the Veteran complained of, and was treated for, worsening hearing. The VA and private treatment records do not indicate that the Veteran's hearing, in particular speech discrimination, improved. The credible testimony of the appellant and the Veteran's daughters at the June 2021 virtual Board hearing supports that the Veteran's hearing, in particular the speech discrimination, had not improved at any point during the period from April 2010 through November 2014. If anything, the Veteran's hearing in 2010 was similar to that reported in the November 2014 VA audiometric examination. In sum, the evidence of record reflects that, from April 15, 2010 to November 4, 2014, multiple VA and private examinations showed midrange speech discrimination scores. Further, VA treatment records, lay statements from the Veteran, and the credible testimony of the appellant and the Veteran's daughters all are consistent with the speech discrimination scores noted in the April 2008, February 2013, and November 2014 VA and private audiometric examinations that show words missed in conversation. Based upon the above evidence, the Board finds that the evidence does not show actual improvement of the service connected bilateral hearing loss during the rating period from April 15, 2010 to November 4, 2014 under the ordinary conditions of life. Rather, it appears from the evidence of record that the April 2010 speech discrimination scores were an outlier, and not sufficient to support a reduction in the bilateral hearing loss disability rating. For these reasons, the Board finds that the reduction of the disability rating for the service connected bilateral hearing loss below 20 percent disabling was not proper, and the 20 percent disability rating is to be restored effective April 15, 2010. 2. Increased Disability Rating for Bilateral Hearing Loss March 3, 2010 to November 4, 2014 Having reviewed the evidence of record, lay and medical, the Board finds that, during the increased rating period on appeal from March 3, 2010 to November 4, 2014, the Veteran's bilateral hearing loss manifested as level VI or level VII hearing in the right ear and level VIII hearing in the left ear. At the outset, the Board will address the proper speech discrimination scores to use when evaluating the appropriate disability ratings. As discussed above, in the instant decision the Board has found the speech discrimination scores recorded at the time of the April 2010 VA audiometric examination to be an aberration, and not reflective of the Veteran's actual hearing loss at that time. Also as discussed above, while the speech discrimination scores recorded at the time of the February 2013 private audiometric examination are consistent with the other evidence of record, the Board cannot say for certain that the scores were recorded using the Maryland CNC controlled speech discrimination test; therefore, as the witnesses at the June 2021 virtual Board hearing credibly testified that in 2010 the Veteran's demonstrated speech discrimination was in line with the findings of the VA examiner in November 2014, and resolving reasonable doubt in favor of the appellant, the Board will apply the speech discrimination scores recorded using the Maryland CNC controlled speech disclination test, taken at the time of the November 2014 VA audiometric examination, in place of the speech discrimination scores recorded at the time of the April 2010 VA audiometric examination and the February 2013 private audiometric examination. Turning first to the April 2010 VA audiometric examination, when the speech discrimination scores from the November 2014 VA audiometric examination are applied to the pure tone readings obtained in April 2010, a Roman numeral VI is designated for the right ear from Table VI of 38 C.F.R. § 4.85 and a Roman numeral VIII is designated for the left ear. Intersecting the numeric designations to the applicable row and column for the right and left ear, a 40 percent rating is derived from Table VII of 38 C.F.R. § 4.85. The intersection points for these categories show that the hearing loss did not exceed the levels for a 40 percent schedular rating at that time. The provisions of 38 C.F.R. § 4.86(a) (exceptional patterns of hearing impairment) are not for application as the April 2010 audiometric examination did not show pure tone thresholds of 55 decibels or greater in all four of the relevant frequencies for the Veteran's ears. The provisions of 38 C.F.R. § 4.86(b) are also not applicable as both ears were not shown to manifest 30 decibels or less at 1000 Hz and 70 decibels or more at 2000 Hz. As to the February 2013 private audiometric examination, when the speech discrimination scores from the November 2014 VA audiometric examination are applied to the pure tone readings obtained in February 2013, a Roman numeral VII is designated for the right ear from Table VI of 38 C.F.R. § 4.85 and a Roman numeral VIII is designated for the left ear. Intersecting the numeric designations to the applicable row and column for the right and left ear, a 40 percent rating is derived from Table VII of 38 C.F.R. § 4.85. The intersection points for these categories show that the hearing loss did not exceed the levels for a 40 percent schedular rating at that time. The provisions of 38 C.F.R. § 4.86(a) (exceptional patterns of hearing impairment) are not for application as the February 2013 audiometric examination did not show pure tone thresholds of 55 decibels or greater in all four of the relevant frequencies for the Veteran's ears. The provisions of 38 C.F.R. § 4.86(b) are also not applicable as both ears were not shown to manifest 30 decibels or less at 1000 Hz and 70 decibels or more at 2000 Hz. Per the above, the application of the rating schedule to the audiometric findings supports the grant of an increased 40 percent disability rating during the rating period from March 3, 2010 to November 4, 2014. For these reasons, the Board finds that an increased 40 percent disability rating, but no higher, is warranted for the service-connected bilateral hearing loss for the period from March 3, 2010, date of claim for increase, to November 4, 2014. See 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. Review of the record does not reflect that the Veteran first became entitled to an increased disability rating during the one-year look back period from March 3, 2009 through March 3, 2010. As such, March 3, 2010, the date of claim for increased rating, is the appropriate effective date for the grant of the 40 percent increased disability rating. 38 C.F.R. § 3.400. From November 5, 2014 Having reviewed the evidence of record, lay and medical, the Board finds that, during the increased rating period on appeal from November 5, 2014, the Veteran's bilateral hearing loss manifested as no more than level VIII hearing in the right ear and level IX hearing in the left ear. As discussed above, the Veteran received a VA audiometric examination in November 2014. Based upon the results of the November 2014 VA audiometric examination, a Roman numeral VIII is designated for the right ear from Table VI of 38 C.F.R. § 4.85 and a Roman numeral IX is designated for the left ear. Intersecting the numeric designations to the applicable row and column for the right and left ear, a 50 percent rating is derived from Table VII of 38 C.F.R. § 4.85. The intersection points for these categories show that the hearing loss did not exceed the levels for a 50 percent schedular rating at that time. The Board notes that the provisions of 38 C.F.R. § 4.86(a) (exceptional patterns of hearing impairment) are applicable for this rating period, as the November 2014 audiometric examination showed pure tone thresholds of 55 decibels or greater in all four of the relevant frequencies for the Veteran's ears. Nonetheless, when the pure tone readings are applied to Table VIa, a Roman numeral VIII is designated for the right ear and a Roman numeral VIII is designated for the left ear. Intersecting the numeric designations to the applicable row and column for the right and left ear, a 50 percent rating is derived from Table VII of 38 C.F.R. § 4.85. The intersection points for these categories show that the hearing loss did not exceed the levels for a 50 percent schedular rating at that time, even when considering the exceptional pattern of hearing impairment. The application of the rating schedule to the audiometric findings weighs against an increased disability rating for bilateral hearing loss in excess of 50 percent at any point during the increased rating period from November 5, 2014. As the weight of the competent and probative lay and medical evidence of record is against a disability rating in excess of 50 percent for bilateral hearing loss at any point during the increased rating period from November 5, 2014, an increased disability rating for bilateral hearing loss during that period is not warranted. See 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. Extraschedular Claim Not Raised The Board finds that neither the appellant nor the record has raised a claim for extraschedular rating under 38 C.F.R. § 3.321(b) for any period for the increased rating issue on appeal. See Thun v. Peake, 22 Vet. App. 111 (2008); Doucette v. Shulkin, 28 Vet. App. 366 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record); Yancy v. McDonald, 27 Vet. App. 484, 494 (2016), citing Dingess v. Nicholson, 19 Vet. App. 473, 499 (2006), aff'd, 226 Fed. Appx. 1004 (Fed. Cir. 2007) (holding that when 38 C.F.R. § 3.321(b)(1) is not "specifically sought by the claimant nor reasonably raised by the facts found by the Board, the Board is not required to discuss whether referral is warranted"). J. PARKER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. Blowers, 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.