Citation Nr: 21074082 Decision Date: 12/14/21 Archive Date: 12/14/21 DOCKET NO. 17-25 093 DATE: December 14, 2021 ORDER Reduction of the rating for the service-connected bilateral hearing loss from 40 percent to 10 percent, effective April 1, 2016, was proper; restoration of a rating in excess of 10 percent from April 1, 2016 to May 1, 2018 is denied. Restoration of a 10 percent disability rating for the service-connected bilateral hearing loss, from May 1, 2018, is granted. For the increased rating period from August 11, 2015, a disability rating in excess of 40 percent prior to April 1, 2016, and in excess of 10 percent thereafter, for the service-connected bilateral hearing loss is denied. FINDINGS OF FACT 1. The service-connected bilateral hearing loss underwent improvement under the ordinary conditions of life and work prior to April 1, 2016. 2. A January 2016 rating decision met all due process requirements to reduce the rating for the service-connected bilateral hearing loss from 40 percent to 0 percent, effective April 1, 2016. 3. Upon consideration of new and material evidence submitted after the January 2016 rating decision, an April 2017 rating decision granted a partial restoration from 0 to 10 percent for bilateral hearing loss, effective April 1, 2016. 4. As of April 1, 2016, the 40 percent rating for the service-connected bilateral hearing loss had been in effect for less than five years. 5. At the time of the reduction, the service-connected bilateral hearing loss was manifested by no worse than Level IV hearing acuity in the right ear, and no worse than Level V hearing acuity in the left ear; therefore, the criteria for a 10 percent disability rating for bilateral hearing loss were met. 6. At the time of the May 1, 2018 reduction of the disability rating for the service connected bilateral hearing loss from a 10 percent to a 0 percent (noncompensable) disability rating, there had been no actual improvement in the bilateral hearing loss. 7. For the increase rating period from August 11, 2015 to April 1, 2016, bilateral hearing loss manifested as no worse than Level VII hearing acuity in the right ear and Level VIII hearing acuity in the left ear. 8. For the increase rating period from April 1, 2016, bilateral hearing loss manifested as no worse than Level IV hearing acuity in the right ear and Level V hearing acuity in the left ear. CONCLUSIONS OF LAW 1. The reduction of the rating for service-connected bilateral hearing loss from 40 percent to 10 percent was proper; the criteria for restoration of a rating in excess of 10 percent from April 1, 2016 to May 1, 2018 have not been met. 38 U.S.C. § 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.105, 3.159, 3.344, 4.1, 4.2, 4.3, 4.7, 4.10, 4.85, 4.86, Diagnostic Code 6100. 2. Resolving reasonable doubt in the Veteran's favor, for the rating period from May 1, 2018, the criteria for restoration of a 10 percent disability rating for service-connected bilateral hearing loss have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.105, 3.159, 3.344, 4.1, 4.2, 4.3, 4.7, 4.10, 4.85, 4.86, Diagnostic Code 6100. 3. For the increase rating period from August 11, 2015, the criteria for a disability rating in excess of 40 percent prior to April 1, 2016, and in excess of 10 percent thereafter, for the service-connected bilateral hearing loss have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.3, 4.7, 4.10, 4.85, 4.86, Diagnostic Code 6100. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran, who is the Appellant, served on active duty from August 1972 to August 1978. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2016 rating decision from the Regional Office (RO), which reduced the disability rating for the service-connected bilateral hearing loss from 40 percent to 0 percent. In an April 2017 rating decision, the RO granted a partial restoration from 0 percent to 10 percent for bilateral hearing loss, effective April 1, 2016. As the Veteran has not expressed satisfaction with the assigned ratings, the claim remains before the Board. See AB v. Brown, 6 Vet. App. 35, 38 (1993). The Veteran initially requested a travel Board hearing on the substantive appeal; however, in written correspondence submitted October 2021, the Veteran withdrew the hearing request. 38 C.F.R. § 20.704(e). The Board finds that the duties to notify and assist in this case have been fulfilled. Neither the Veteran or the evidence has raised any specific contentions regarding the duties to notify or assist. Rating Reduction and Disability Rating Criteria 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 40 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). 1. Reduction to 10 percent for Bilateral Hearing Loss from April 1, 2016 to May 1, 2018 In October 2015, the RO proposed to reduce the 40 percent disability rating for the service-connected bilateral hearing loss to 0 percent. The reduction was implemented in a January 2016 rating decision, effective April 1, 2016. Upon receipt of new and material evidence, an April 2017 rating decision granted a partial restoration from 0 percent to 10 percent for the bilateral hearing loss, effective April 1, 2016. As such, the Board need only consider the propriety of the rating reduction from 40 percent to 10 percent from April 1, 2016. Initially, the Board observes that the RO procedurally complied with the procedural safeguards regarding the manner in which the Veteran was given notice of the proposed rating reduction and the implementation of that reduction. See 38 C.F.R. § 3.105. The Board will now consider the propriety of the rating reduction. At the time the reduction became effective on April 1, 2016, the 40 percent rating for bilateral hearing loss had been continuously in effect for less than five years; therefore, the provisions of 38 C.F.R. § 3.344(a) and (b) are not applicable. The question of whether a disability has improved involves consideration of the applicable rating criteria. For the rating period at issue, bilateral hearing loss was rated under the criteria found at 38 C.F.R. § 4.85, Diagnostic Code 6100. In December 2012, the RO awarded the 40 percent rating for bilateral hearing loss based on the December 2012 VA examination results showing that the right ear demonstrated an exceptional pattern of hearing impairment under 38 C.F.R. § 4.86(a), with an average decibel loss of 81 and a speech recognition score of 64 percent, and the left ear demonstrated an exceptional pattern of hearing impairment under 38 C.F.R. § 4.86(a), with an average decibel loss of 81 and a speech recognition score of 52 percent. Because the VA audiometric results revealed Level VII hearing acuity in the right ear and Level VIII hearing acuity in the left ear, a 40 percent disability rating was assigned for bilateral hearing loss in accordance with Table VII under Diagnostic Code 6100. In this case, the Board finds that the weight of the evidence demonstrates actual improvement of the bilateral hearing loss, including under the ordinary conditions of life and work; therefore, the rating reduction was proper, so the criteria for restoration of a 40 percent rating for bilateral hearing loss, effective April 1, 2016, have not been met. At the time of the rating reduction, the evidence showed that the rating criteria for a 10 percent rating for bilateral hearing loss were met. At the October 2015 VA audiology examination, pure tone thresholds, in decibels (dB), were recorded as follows: 1000 Hz 2000 Hz 3000 Hz 4000 Hz RIGHT 25 35 50 35 LEFT 25 45 55 50 Pure tone threshold averages were 36 dB for the right ear and 44 dB for the left ear. Speech audiometry revealed speech recognition ability of 94 percent for the right ear and 90 percent for the left ear. As noted above, the October 2015 VA examination report showed that the right ear demonstrated an average decibel loss of 36 and a speech recognition score of 94 percent, and the left ear demonstrated an average decibel loss of 44 and a speech recognition score of 90 percent. Under the guidelines set forth in 38 C.F.R. § 4.85, the audiometric results from the October 2015 VA audiology examination reveal Level I hearing acuity in the right ear and Level II hearing acuity in the left ear when evaluating under Table VI. According to Table VII under Diagnostic Code 6100, a 0 percent disability rating is warranted for the level of hearing impairment demonstrated at the October 2015 VA audiology examination. 38 C.F.R. § 4.85. Thereafter, the Veteran submitted December 2015 private audiometric results, which the RO subsequently considered as to whether the rating reduction was proper. The private audiologist reported that the Veteran had difficulty hearing and understanding speech in most listening situations, including with background noise and when more than one person is talking. The private audiologist interpreted the audiometric results depicted by graph and reported the average decibel loss in each ear. The private audiologist also confirmed that speech recognition was obtained using the Maryland CNC Test. At the December 2015 private audiology examination, pure tone thresholds, in decibels (dB), were recorded as follows: 1000 Hz 2000 Hz 3000 Hz 4000 Hz RIGHT 45 45 55 65 LEFT 60 60 65 70 Upon interpreting the audiometric results and the Maryland CNC Test results, the private audiologist reported that the right ear demonstrated an average decibel loss of 53 and a speech recognition score of 80 percent, and the left ear demonstrated an average decibel loss of 65 and a speech recognition score of 82 percent. See December 2015 private treatment record. Under the guidelines set forth in 38 C.F.R. § 4.85, the audiometric results from the December 2015 private audiology examination reveal Level IV hearing acuity in the right ear under Table VI, and Level V hearing acuity in the left ear under Table VIa (which results in the higher Roman numeral), due to an exceptional pattern of hearing impairment in the left ear under 38 C.F.R. § 4.86(a). According to Table VII under Diagnostic Code 6100, a 10 percent disability rating is warranted for the level of hearing impairment demonstrated. 38 C.F.R. § 4.85. The December 2015 private audiometric results are consistent with a finding that there was improved hearing at the time of the rating reduction. When compared to the evidence of record when the 40 percent rating was awarded, the evidence at the time of the rating reduction reflected improved hearing as manifested by improved audiometric results in all measured frequencies and improved speech recognition ability; thus, the results necessarily reflect an increased ability to function (i.e., to hear) under the ordinary conditions of life and work. Based on the evidence discussed above, the Board finds that the evidence demonstrates that the service-connected bilateral hearing loss underwent actual improvement, including under the ordinary conditions of life and work; therefore, at the time of the January 2016 rating decision, the rating reduction for bilateral hearing loss, effective from April 1, 2016, was warranted, so the appeal for restoration of a 40 percent disability rating, which includes the question of whether partial restoration of a lesser percentage in excess of 10 percent and up to 40 percent is warranted, must be denied. See generally 38 C.F.R. § 3.344. 2. Restoration to 10 percent for Bilateral Hearing Loss from May 1, 2018 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 10 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 10 percent disability rating for the service connected bilateral hearing loss, from May 1, 2018 forward, have been met. As noted above, an April 2017 rating decision awarded a 10 percent rating (partial restoration) for bilateral hearing loss based on the December 2015 private audiology examination results showing that the right ear demonstrated hearing impairment under 38 C.F.R. § 4.85(a), with an average decibel loss of 53 and a speech recognition score of 80 percent, and the left ear demonstrated an exceptional pattern of hearing impairment under 38 C.F.R. § 4.86(a), with an average decibel loss of 65 and a speech recognition score of 82 percent. Because the private audiometric results revealed Level IV hearing acuity in the right ear and Level V hearing acuity in the left ear, a 10 percent disability rating was assigned for bilateral hearing loss in accordance with Table VII under Diagnostic Code 6100. The subsequent June 2017 VA examination report does not indicate that the Veteran's hearing has clearly improved. At the June 2017 VA audiology examination, pure tone thresholds, in decibels (dB), were recorded as follows: 1000 Hz 2000 Hz 3000 Hz 4000 Hz RIGHT 25 35 25 40 LEFT 20 30 40 35 Pure tone threshold averages were 28 dB for the right ear and 31 dB for the left ear. Speech audiometry revealed speech recognition ability of 96 percent for the right ear and 92 percent for the left ear. As noted above, the June 2017 VA examination report showed that the right ear demonstrated an average decibel loss of 28 and a speech recognition score of 96 percent, and the left ear demonstrated an average decibel loss of 31 and a speech recognition score of 92 percent. Under the guidelines set forth in 38 C.F.R. § 4.85, the audiometric results from the June 2017 VA audiology examination reveal Level I hearing acuity in the right ear and Level I hearing acuity in the left ear when evaluating under Table VI. According to Table VII under Diagnostic Code 6100, a 0 percent disability rating is indicated for the level of hearing impairment demonstrated at the June 2017 VA audiology examination. 38 C.F.R. § 4.85. However, the Veteran provided credible lay reports of difficulty with communication due to decreased hearing in both ears during the June 2017 VA examination. Moreover, while the VA examiner indicated that the pure tone threshold results and speech discrimination scores were reliable, the examiner also remarked that the Veteran had to be reinstructed during the examination due to poor speech recognition threshold to pure tone average agreement, though the examiner noted that at least fair test reliability was obtained. However, the examiner did not explain why the reliability of test results was fair to good despite the need to reinstruct the Veteran during the examination and the mention of poor speech recognition threshold to pure tone average agreement. Such conflicting remarks regarding the reliability of audiological results raise a question as to whether the June 2017 audiology examination results are an accurate reflection of improvement in the Veteran's hearing loss to support a reduction from a 10 percent disability rating to a 0 percent (noncompensable) disability rating. Based upon the above evidence, and resolving reasonable doubt in the Veteran's favor, the Board finds that the evidence does not show actual improvement of the service-connected bilateral hearing loss during the rating period from May 1, 2018 under the ordinary conditions of life. Rather, it appears from the evidence of record that the June 2017 VA examination results are 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 10 percent disabling was not proper, and the 10 percent disability rating is to be restored effective May 1, 2018. 3. Increase Rating for Bilateral Hearing Loss The Veteran seeks higher ratings for bilateral hearing loss. The bilateral hearing loss disability has been rated at 40 percent from August 11, 2015 to April 1, 2016, and 10 percent from April 1, 2016 forward (the period of reduction, for which restoration is sought) under the rating criteria found at 38 C.F.R. § 4.85, Diagnostic Code 6100 for hearing loss. From August 11, 2015 to April 1, 2016 In this case, the Board finds that the weight of the evidence is against finding that an increased disability rating higher than 40 percent for bilateral hearing loss is warranted for the period from August 11, 2015 to April 1, 2016. Audiometric results from the December 2012 VA examination show a level of hearing impairment for bilateral hearing loss consistent with the 40 percent rating criteria. Specifically, pure tone thresholds, in decibels, were recorded as follows: 1000 Hz 2000 Hz 3000 Hz 4000 Hz RIGHT 60 75 90 100 LEFT 75 75 85 90 The pure tone threshold average was 81 dB for the right ear and 81 dB for the left ear. Speech audiometry revealed speech recognition ability of 64 percent in the right ear and 52 percent in the left ear. Under the guidelines set forth in 38 C.F.R. § 4.85 and 4.86(a), the audiometric results from the December 2012 VA examination reveal an exceptional hearing impairment in both ears with Level VII hearing acuity in the right ear and Level VIII hearing acuity in the left ear under Table VI (which results in the higher Roman numeral). According to Table VII under Diagnostic Code 6100, a 40 percent disability rating is warranted for the level of hearing impairment demonstrated at the December 2012 VA examination. 38 C.F.R. § 4.85. At the October 2015 VA audiology examination, pure tone thresholds, in decibels (dB), were recorded as follows: 1000 Hz 2000 Hz 3000 Hz 4000 Hz RIGHT 25 35 50 35 LEFT 25 45 55 50 Pure tone threshold averages were 36 dB for the right ear and 44 dB for the left ear. Speech audiometry revealed speech recognition ability of 94 percent for the right ear and 90 percent for the left ear. Under the guidelines set forth in 38 C.F.R. § 4.85, the audiometric results from the October 2015 VA examination reveal Level I hearing acuity in the right ear and Level II hearing acuity in the left ear under Table VI. According to Table VII under Diagnostic Code 6100, a 0 percent disability rating is warranted for the level of hearing impairment demonstrated at the October 2015 VA examination. 38 C.F.R. § 4.85. Also, as explained above, interpretation of the December 2015 private audiometric results indicates no greater than a 10 percent level of bilateral hearing impairment. Treatment records relevant to the rating period do not include audiometric data showing that the bilateral hearing loss disability meets the criteria for a disability rating higher than 40 percent. In consideration thereof, the Board finds that the criteria for an increased rating higher than 40 percent for bilateral hearing loss are not met or approximated for any portion of the rating period from August 11, 2015 to April 1, 2016. 38 C.F.R. §§ 4.3, 4.7. Rating from April 1, 2016 (Reduction Period) (Continued on the next page) In the analysis above in this decision, the Board has explained why reduction of the rating to 10 percent was proper, and why even partial restoration of a rating in excess of 10 percent is not warranted. The issue for this period is restoration of the rating that was reduced from 40 percent to 10 percent effective April 1, 2016; there is no "increased rating" for this period, as all rating percentage questions and analyses have been fully addressed in the reduction and restoration analysis that covers this period. See Dofflemeyer v. Derwinski, 2 Vet. App. 277, 280 (1992) (noting that the Board incorrectly phrased the issue in terms of increased rating, whereas the issue in fact and law was whether the reduction in rating was proper). See also Peyton v. Derwinski, 1 Vet. App. 282, 286 (1991) ("This is a rating reduction case, not a rating increase case"). The Board's finding that restoration in excess of 10 percent is not warranted for this period adjudicates the identical rating question that would be adjudicated were the issue one for increased rating, namely, should there be a higher rating than 10 percent. For reasons explained above, as a restoration in excess of 10 percent is not warranted for bilateral hearing loss the rating period from April 1, 2016, it so follows that an increase rating in excess of 10 percent for the same period is not warranted as well. E. BLOWERS Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Moore, Shanna 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.