Citation Nr: 21077364 Decision Date: 12/29/21 Archive Date: 12/29/21 DOCKET NO. 17-49 186 DATE: December 29, 2021 ORDER The rating reduction from 30 percent to 10 percent for bilateral hearing loss effective February 01, 2019 was improper, and the 30 percent rating is restored. REMANDED Entitlement to service connection for a left ankle condition is remanded. Entitlement to service connection for left knee condition is remanded. Entitlement to a rating higher than 30 percent for a bilateral hearing loss disability is remanded. FINDING OF FACT The evidence of record fails to show that improvement of the Veteran's bilateral hearing loss reflected a sustained improvement in his ability to function under the ordinary conditions of life. CONCLUSION OF LAW The reduction in rating from a 30 percent rating to a 10 percent rating for bilateral hearing loss, effective February 01, 2019 was improper, and the 30 percent rating is restored. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.105, 3.344, 4.85, 4.86, Diagnostic Code (DC) 6100. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from December 1983 to December 1986. This matter comes before the Board of Veterans' Appeals (Board) on appeal from March 2017 and November 2018 rating decisions by the Department of Veterans Affairs (VA). In August 2021, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge; a transcript of that hearing is of record. 1. The rating reduction from 30 percent to 10 percent for bilateral hearing loss effective February 01, 2019 was improper, and the 30 percent rating is restored. The Veteran contends that the reduction in the evaluation for his bilateral hearing loss disability from 30 percent to 10 percent was not proper. Service connection for the Veteran's bilateral hearing loss disability was established in a September 2016 rating decision, and an initial 30 percent disability rating was assigned, effective June 28, 2016. The provisions of 38 C.F.R. § 3.105(e) provide for the reduction in evaluation of a service-connected disability when warranted by the evidence, but only after following certain procedural guidelines. First, there must be a rating action proposing the reduction and notice giving the Veteran 60 days to submit additional evidence and 30 days to request a predetermination hearing. If a hearing is not requested and reduction is still warranted, a rating action will be taken to effectuate the reduction. 38 C.F.R. § 3.105(e), (i)(2). The effective date of the reduction will be the last day of the month in which a 60-day period from the date of notice to a Veteran of the final action expires. 38 C.F.R. § 3.105(e). The evidence reflects that the procedural requirements for a reduction were met in this case. In a December 2017 rating decision, the RO proposed a reduction in the rating for the Veteran's bilateral hearing loss from 30 percent to noncompensable. A notification letter containing all the information required by 38 C.F.R. § 3.105(e), which included the proposed reduction in compensation payable and the 60-day response period, was sent to the Veteran and his representative in December 2017, and he was given an opportunity for a hearing and time to respond. In a November 2018 rating decision, the RO reduced the rating for the service-connected bilateral hearing loss disability from 30 percent to 10 percent, and assigned an effective date of February 01, 2019, which is no sooner than permitted by current law and regulations. As there are no due process violations with the rating reduction, the question becomes whether the rating reduction was otherwise proper. At the time the reduction became effective, February 01, 2019, the 30 percent evaluation for the Veteran's hearing loss had been in effect for less than five years. Therefore, the provisions of 38 C.F.R. § 3.344(a) and (b) do not apply and reexamination disclosing improvement would warrant a rating reduction. 38 C.F.R. § 3.344(c). However, in Brown v. Brown, 5 Vet. App. 413, 421 (1993), the United States Court of Appeals for Veterans Claims (Court) identified general regulatory requirements which are applicable to all rating reductions. Pursuant to 38 C.F.R. § 4.1, it is essential, both in the examination and in the evaluation of the disability, that each disability be viewed in relation to its history. Brown, 5 Vet. App at 420. Similarly, 38 C.F.R. § 4.2 establishes that "[i]t is the responsibility of the rating specialist to interpret reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of the disability present." Id. Furthermore, per 38 C.F.R. § 4.13, 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. See Brown, 5 Vet. App. at 420-421; see also 38 C.F.R. §§ 4.2, 4.10. The burden of proof is on VA to establish that a reduction is warranted by a preponderance of the evidence. See Brown, 5 Vet. App. at 421; Kitchens v. Brown, 7 Vet. App. 320, 324 (1995). In general, the RO's reduction of a rating must have been supported by the evidence on file at the time of the reduction. Pertinent post-reduction evidence favorable to restoring the rating, however, also must be considered. See Dofflemeyer v. Derwinski, 2 Vet. App. 277 (1992). Ratings of hearing loss range from noncompensable to 100 percent based on organic impairment of hearing acuity as measured by the results of speech discrimination tests (Maryland CNC) combined with the average hearing threshold levels as measured by pure tone audiometric tests in the frequencies 1000, 2000, 3000, and 4000 cycles per second. 38 C.F.R. § 4.85(a), (d). 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), Tables VI, VIA. To establish entitlement to a compensable rating for hearing loss, certain minimum levels of the combination of the percentage of speech discrimination loss and average pure tone decibel loss must be met. The results of the pure tone audiometric test and speech discrimination test are charted on Table VI, 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. Table VIA will be used when the examiner certifies that use of the speech discrimination test is not appropriate because of language difficulties, inconsistent speech discrimination scores, etc., or when an exceptional pattern of hearing loss is shown, specifically 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. When the pure tone threshold at 1000, 2000, 3000, and 4000 Hertz is 55 decibels or more in a particular ear, determination of the level of hearing acuity in that ear will be made using either Table VI or Table VIA, whichever results in the higher numeral. Id. The RO assigned a 30 percent rating based on the September 2016 VA audiological examination. Audiometric data obtained at that time is as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 25 30 35 65 75 LEFT 10 25 30 35 60 For both ears, the examiner diagnosed the Veteran with sensorineural hearing loss (in the frequency range of 500-4000 Hz) and sensorineural hearing loss (in the frequency range of 6000 Hz or higher frequencies). The examiner noted abnormal results for ipsilateral and contralateral acoustic reflexes in the left ear but that all other findings were normal. Notably, the examiner determined that the Veteran's hearing loss did, in fact, impact ordinary conditions of his daily life, including his ability to work as he often had to ask others to repeat themselves. The Board reflects that the Puretone average (of 1000, 2000, 3000 & 4000 Hz) was 51.25 in the right ear and 37.5 in the left ear. Speech audiometry revealed speech recognition ability of 56 percent in the right ear and of 60 percent in the left ear. The Veteran's results did not demonstrate an exceptional pattern of hearing such that the provisions of 38 C.F.R. § 4.86 applied in this case. Applying the criteria set forth in 38 C.F.R. § 4.85 to these audiometric results yielded a Roman numeral VII for the right ear based on Table VI; and a Roman numeral V for the left ear, based on Table VI. When these figures were applied to Table VII, the result was a 30 percent disability rating. The Veteran then submitted an increase rating claim for bilateral hearing loss in August 2017. The Veteran then underwent a VA audiological examination in November 2017. Audiometric data obtained at that time was as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 30 30 35 65 75 LEFT 25 30 25 40 60 For both ears, the examiner diagnosed the Veteran with sensorineural hearing loss (in the frequency range of 500-4000 Hz) and sensorineural hearing loss (in the frequency range of 6000 Hz or higher frequencies). Notably, the examiner determined that the Veteran's hearing loss did, in fact, impact ordinary conditions of his daily life, including his ability to work as he had trouble hearing his coworkers and had difficulty understanding work orders clearly. The Board reflects that the Puretone average (of 1000, 2000, 3000 & 4000 Hz) was 51.25 in the right ear and 38.75 in the left ear. Speech audiometry revealed speech recognition ability of 88 percent bilaterally. The Veteran's results did not demonstrate an exceptional pattern of hearing such that the provisions of 38 C.F.R. § 4.86 applied in this case. Applying the criteria set forth in 38 C.F.R. § 4.85 to these audiometric results yielded a Roman numeral II for the right ear based on Table VI; and a Roman numeral II for the left ear, based on Table VI. When these figures were applied to Table VII, the result was a noncompensable disability rating. This examination served as the basis for the RO to propose reducing the Veteran's disability rating in the December 2017 rating decision. The Veteran submitted a private audiological evaluation in January 2018. Testing revealed bilateral mild to severe hearing loss with the left ear slightly better than the right ear. Word recognition was good in the left ear and poor in the right ear at a loud conversation level. Audiometric data obtained at that time was as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 30 40 40 75 85 LEFT 25 30 35 50 70 The Puretone average (of 1000, 2000, 3000 & 4000 Hz) was 60 in the right ear and 46 in the left ear. Speech audiometry revealed speech recognition ability of 68 percent in the right ear and 80 percent in the left ear. The Veteran's results did not demonstrate an exceptional pattern of hearing such that the provisions of 38 C.F.R. § 4.86 applied in this case. Applying the criteria set forth in 38 C.F.R. § 4.85 to these audiometric results yielded a Roman numeral V for the right ear based on Table VI; and a Roman numeral III for the left ear, based on Table VI. When these figures were applied to Table VII, the result was a 10 percent disability rating. The results from this private audiological examination were used as the basis for the reduction in rating from 30 percent to 10 percent in the November 2018 rating decision. The Board notes that it is unclear whether the Maryland CNC was utilized in finding these speech discrimination scores. Accordingly, the Board finds that the RO relied on invalid audiometric data in assigning the 10 percent rating. See generally, 38 C.F.R. § 4.85 (evaluation of hearing impairment). Here, the Veteran's rating has been an effect for less than five years as of the time of the proposed and effectuated reduction by the December 2017 rating decision. Nonetheless, the general substantive requirements set forth in Brown v. Brown, 5 Vet. App. 413 (1993) still apply. In other words, it must be determined that an improvement in the disability had actually occurred, and whether the improvement actually reflected an improvement in the Veteran's ability to function under the ordinary conditions of life and work. See Brown, 5 Vet. App. at 421. Upon review of the procedural documents, the Board finds that the reduction in this case was improper. Review of the private January 2018 audiological evaluation reveals that it was invalid for rating purposes, and therefore assigning the Veteran a disability rating based on these audiometric results was improper. Notably, the RO made no findings with regards to any of the provisions of 38 C.F.R. § 3.344(a), including whether there was material improvement, and that the material improvement would be maintained in the ordinary conditions of life. Simply put, no one has opined on whether there has been a material improvement of the bilateral hearing loss disability to support the reduction. At the September 2016 VA examination, the Veteran stated that he was constantly asking people to repeat themselves. By the November 2017 VA examination, which initiated the ratings reduction proposal, the Veteran still complained that he could not hear his coworkers at work, and that he was unable to understand work orders clearly. In the August 2021 hearing transcript, the Veteran stated that his hearing had been worsening throughout the appellate period. Although the examination in November 2017 did show an improvement in pure tone decibel thresholds, the Board concludes, that, at that the time of the reduction, the preponderance of the evidence did not show actual, ascertainable improvement of the Veteran's hearing that actually reflected an improvement in his ability to function under the ordinary conditions of life. This conclusion is supported by the Veteran's lay statements. As a lay person, the Veteran is considered competent to report what comes to him through his senses, including experiencing hearing difficulties. Layno v. Brown, 6Vet. App. 465 (1994). Accordingly, his statements provide probative evidence in support of his appeal. Accordingly, the Board finds that the Veteran's bilateral hearing loss rating reduction was not proper because the RO failed to assure that there was a material improvement in the Veteran's hearing loss that would be maintained in the ordinary conditions of life and work. In the absence of evidence of sustained, material improvement, there can be no reduction. See 38 C.F.R. § 3.344(a). In conclusion, the reduction of the rating for the Veteran's bilateral hearing loss disability from 30 to 10 percent was inappropriate under the facts presented. Accordingly, resolving all reasonable doubt in his favor, the Board finds that the 30 percent rating be restored. The issue of whether the Veteran is entitled to a rating in excess of 30 percent is addressed in the remand portion of the decision below. REASONS FOR REMAND 1. Entitlement to service connection for a left ankle condition is remanded. The Board finds that remand is required to obtain an adequate VA opinion regarding the Veteran's left ankle disability. The Veteran was provided with a VA examination to evaluate his left ankle condition in February 2017. The examiner determined that the Veteran's left lateral collateral ligament sprain was less likely than not related to service. He noted that despite records of the Veteran's 1985 left ankle sprain and the Veteran's lay statements about ongoing ankle pain, there were no medical records regarding the ankle condition. As there were no medical records to document the condition, he denied nexus. The Board finds this to be an inadequate opinion as the examiner's rationale relied entirely on the lack of contemporaneous medical records. The Board notes that the Veteran is competent to report his medical history, and the lack of contemporaneous medical records does not, in and of itself, render lay evidence not credible. Layno v. Brown, 6 Vet. App. 465 (1994); Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). As the examiner provided no other rationale or medical evidence for his opinion, a remand is required to obtain an adequate medical opinion. In addition, the Veteran's representative specifically contended at the August 2021 hearing that the Veteran's ankle disability could be a result of compensating for his knee condition. As such, the Veteran, through his representative, has set forth a new theory of entitlement to service connection; that being, as secondary to his knee condition. On remand, additional VA opinions should be obtained as to the likelihood that the Veteran's left ankle condition was caused or aggravated by his knee condition, to include any abnormal gait and/or ambulation. See El-Amin v. Shinseki, 26 Vet. App. 136, 14041 (2013); Allen v. Brown, 7 Vet. App. 439 (1995). 2. Entitlement to service connection for left knee condition is remanded. The Veteran asserts that his left knee disability is related to a fall during active service. He has not been provided a VA examination. VA must provide a medical examination when there is evidence of (1) a current disability, (2) an in-service event, injury, or disease, (3) some indication that the claimed disability may be associated with the established event, injury, or disease, and (4) insufficient competent evidence of record for VA to make a decision. McLendon v. Nicholson, 20 Vet. App. 79 (2006); see also 38 U.S.C. § 5103A (d)(2); 38 C.F.R. § 3.159(c)(4)(i). The third prong, which requires evidence that the claimed disability or symptoms "may be" associated with the established event, is a low threshold. McClendon, 20 Vet. App. at 83. Although the Veteran's STRs are silent as to any chronic knee disability, he has related this disability to service. The Board has conceded that the Veteran is diagnosed with a left knee condition. It is also noted that the Veteran related his knee condition to a fall in service during which his ankle was also injured. The Veteran stated that this injury occurred while he was stationed in Darmstadt, Germany. An October 1985 STR from a U.S. Army Health Clinic in Darmstadt, Germany did note an ankle injury, though no knee injury was specifically noted. The Veteran also submitted a private letter from a physician in September 2021. The physician stated that the Veteran's left knee condition appeared to be related to a remote injury in service in Germany. Though the Board notes that this opinion is inadequate for adjudication purposes, as it utilizes the wrong standard and contains no rationale, it does provide an indication that the Veteran's knee condition could be related to his in-service injury. Based on the foregoing evidence, the low threshold for obtaining VA examination(s) regarding the Veteran's claims have been met in this case and a remand is necessary in order for such to be accomplished. 3. Entitlement to a rating higher than 30 percent for a bilateral hearing loss disability is remanded. Where there is evidence that a Veteran's service-connected disability has worsened since his last VA examination, and the last examination is too remote to constitute a contemporaneous examination, a new examination is required. As an initial matter, the Board acknowledges that the Veteran submitted an August 2018 private audiogram that contained speech discrimination scores. However, it was unclear whether these results were based upon Maryland CNC tests. They also did not contain Puretone threshold readings. Further, the Veteran was last afforded a VA audiological examination in November 2017, over four years ago. At the August 2021 hearing, Veteran asserted his bilateral hearing loss had worsened. Thus, on remand, the Veteran should be afforded a new VA examination to determine the current nature and severity of his bilateral hearing loss. The matters are REMANDED for the following action: 1. Provide the Veteran with an appropriate examination to determine the etiology of his left ankle condition. The entire claims file must be made available to and be reviewed by the examiner. Any indicated tests and studies must be accomplished, and all clinical findings must be reported in detail and correlated to a specific diagnosis. An explanation for all opinions expressed must be provided. The examiner must provide an opinion regarding whether it is at least as likely as not (50 percent or greater probability) that the left ankle had onset in, or is otherwise related to, active military service. The examiner must also provide an opinion whether it is at least as likely as not (50 percent or greater probability) that the left ankle is caused or aggravated by the left knee condition. The examiner is reminded that the lack of documented treatment in service, while probative, cannot serve as the sole basis for a negative finding. If an opinion cannot be made without resort to speculation, the examiner should so state and provide reasoning as to why a conclusion would be so outside the norm that such an opinion is not possible. 2. Provide the Veteran with an appropriate examination to determine the etiology of his left knee condition. The entire claims file must be made available to and be reviewed by the examiner. Any indicated tests and studies must be accomplished, and all clinical findings must be reported in detail and correlated to a specific diagnosis. An explanation for all opinions expressed must be provided. The examiner must provide an opinion regarding whether it is at least as likely as not (50 percent or greater probability) that the left knee condition had onset in, or is otherwise related to, active military service. 3. Schedule the Veteran for an audiological examination by an appropriate clinician, to assess the severity of the Veteran's service-connected bilateral hearing loss. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran's hearing loss disability under the rating criteria. To the extent possible, the examiner should identify any symptoms and functional impairments due to the Veteran's hearing loss and discuss the effect of his hearing loss on any occupational functioning and activities of daily living. H.M. WALKER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board AK 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.