Citation Nr: 21006698 Decision Date: 02/04/21 Archive Date: 02/04/21 DOCKET NO. 20-10 085 DATE: February 4, 2021 ORDER The appeal seeking to restore the 10 percent rating for the Veteran’s service-connected bilateral hearing loss from January 14, 2019, is granted. Entitlement to a disability rating in excess of 10 percent for bilateral hearing loss is denied. FINDINGS OF FACT 1. At the time of the reduction, the 10 percent rating for bilateral hearing loss had been in effect for less than five years. 2. The preponderance of the evidence does not reflect an improvement in the Veteran’s bilateral hearing loss that resulted in an improvement in his ability to function under ordinary conditions of life and work. 3. The Veteran’s hearing acuity is no greater than Level III in the right ear and Level IV in the left ear. CONCLUSIONS OF LAW 1. The criteria for a restoration of a 10 percent disability rating for bilateral hearing loss have been met. 38 U.S.C. §§ 1155, 5107, 5112; 38 C.F.R. §§ 3.102, 3.105(e) & (i), 3.344, 4.1 - 4.15, 4.85, Diagnostic Code 6100. 2. The criteria for entitlement to a rating in excess of 10 percent for service-connected bilateral hearing loss have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.102, 3.159, 4.1-4.14, 4.85, 4.86, Diagnostic Code 6100. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from October 1966 to September 1968, including service in the Republic of Vietnam. For his meritorious service, the Veteran was awarded (among other decorations) the Combat Infantryman Badge and the Vietnam Service and Campaign Medals. This appeal comes to the Board of Veterans’ Appeals (Board) from a January 2019 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). 1. Whether the reduction of the rating for bilateral hearing loss from 10 percent to 0 percent, effective January 14, 2019, was improper. The Veteran contends the rating reduction for his service-connected bilateral hearing loss was improper. By way of history, in a September 2016 rating decision, the RO granted service connection for bilateral hearing loss at 10 percent from November 25, 2015. In November 2018, the Veteran filed a claim for increase. In a January 2019 rating decision, the RO decreased the rating from 10 percent to 0 percent for the Veteran’s service-connected bilateral hearing loss effective January 14, 2019. A rating reduction is the result of a course of action taken by VA, and not a claim by the veteran. When the propriety of a rating reduction is at issue, the focus is on the actions of the RO in effectuating the reduction, both in terms of compliance with the special due process considerations applicable to reductions, and in terms of whether the evidence at the time of the decision reducing the evaluation supported the reduction. In most cases, violations of the set of due process considerations applicable to rating reductions, or failure of the evidence to meet the standards for reducing an evaluation, render the underlying reduction void ab initio, rather than merely voidable. The burden is on VA to justify a reduction in a rating. See Brown v. Brown, 5 Vet. App. 413 (1993) (finding that the Board is required to establish, by a preponderance of the evidence and in compliance with 38 C.F.R. § 3.344, that a rating reduction is warranted). There are specific procedural requirements applicable to rating reductions. If a reduction in the evaluation is considered warranted, and the lower evaluation would result in a reduction or discontinuance of the compensation payments currently being made, the RO must issue a rating proposing the reduction and setting forth all material facts and reasons. 38 C.F.R. § 3.105(e). The RO must notify the beneficiary that he or she will be given 60 days to present evidence to show that compensation payments should be continued at the present level. Id. Additionally, the beneficiary must be notified as to the right to a predetermination hearing. 38 C.F.R. § 3.105(i). Furthermore, 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 the beneficiary of the final rating action expires. 38 C.F.R. § 3.105(e). In this case, reduction notification procedures were not required as the January 2019 rating decision that implemented the rating reduction did not decrease the Veteran’s overall disability rating (combined evaluation for compensation), which was increased from 40 percent to 60 percent from November 7, 2018. Therefore, the special procedural requirements outlined in 38 C.F.R. § 3.105(e) and (i) were not applicable. The criteria governing certain rating reductions for certain service connected disabilities are found under 38 C.F.R. § 3.344. The provisions of 3.344(a) and (b) apply to ratings that have been continued for five years or more. In the present case, the 20 percent evaluation for the service-connected bilateral hearing loss had been in effect for less than five years at the time the reductions took place. Therefore, the provisions of 38 C.F.R. § 3.344 (a) and (b) do not apply. Reexamination disclosing improvement will warrant a rating reduction. 38 C.F.R. § 3.344(c). Nevertheless, in Brown v. Brown, 5 Vet. App. 413 (1993), the Court stated that there are 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, citing 38 C.F.R. § 4.1, 4.2, 4.10, 4.13. Specifically, 38 C.F.R. § 4.1 requires that each disability be viewed in relation to its history. 38 C.F.R. § 4.2 establishes that it is the reasonability 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 disability present. 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. A claim as to whether a rating reduction was proper must be resolved in the veteran’s favor unless the Board concludes that a preponderance of evidence weighs against the claim. Brown, 5 Vet. App. at 421. Hearing loss is evaluated under 38 C.F.R. §§ 4.85, 4.86, Diagnostic Code 6100, Tables VI, VIA, and VII of VA’s rating schedule. The Rating Schedule provides a table for rating purposes (Table VI) to determine a Roman numeral designation (I through XI) for hearing impairment, established by a state-licensed audiologist, including a controlled speech discrimination test (Maryland CNC), and based upon a combination of the percent of speech discrimination and the puretone threshold average, which is the sum of the puretone thresholds at 1000, 2000, 3000, and 4000 Hertz divided by four. 38 C.F.R. § 4.85 (2018). Table VII is used to determine the percentage evaluation 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. Id. There are certain exceptional patterns of hearing impairment. When the puretone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) is 55 decibels or more, 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. Each ear will be evaluated separately. 38 C.F.R. § 4.86(a). When the puretone threshold is 30 decibels or less at 1000 Hertz 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. 38 C.F.R. § 4.86(b). Each ear will be evaluated separately. If the Veteran is deemed to have an exceptional pattern of hearing impairment, Table VIA may be used when an examiner certifies that use of the speech discrimination test is not appropriate. 38 C.F.R. § 4.86. Here, none of the VA examiners who conducted the Veteran’s audiology examinations has concluded that the Veteran’s speech discrimination testing was inappropriate. Therefore, the use of Table VIA is not warranted and the Roman numeral value in this case is determined by using Table VI and Table VII. 38 C.F.R. § 4.86. Turning to the evidence, the Veteran was afforded a VA audiology examination in August 2016. The Veteran reported that he did not hear clearly in most situations and that he often asked people to repeat themselves. In addition, he listened to the television at a volume that was too loud for others, and even then, he had difficulty understanding. The Veteran’s Maryland CNC test scores were 84 percent in the right ear and 80 percent in the left ear. The Veteran’s puretone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 Average RIGHT 50 70 75 85 70 LEFT 40 75 80 85 70 Applying the results to Table VI, the findings yield a numeric designation of Level III in the right ear and Level IV in left ear. Under 38 C.F.R. § 4.85, Table VII, such hearing acuity warrants a 10 percent rating under Diagnostic Code 6100. In March 2017, the Veteran was afforded a VA audiology examination. The Veteran reported that everyone had to say things to him two or three times before he was able to hear them. The Veteran’s Maryland CNC test scores were 88 percent in the right ear and 84 percent in the left ear. The Veteran’s puretone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 Average RIGHT 25 40 55 70 48 LEFT 20 60 70 75 56 Applying the results to Table VI, the findings yield a numeric designation of Level II in the right ear and Level II in left ear. Under 38 C.F.R. § 4.85, Table VII, such hearing acuity warrants a 0 percent rating under Diagnostic Code 6100. In June 2018, the Veteran was afforded another VA audiology examination. The Veteran reported that he could hear people close just fine, but he had a lot of trouble understanding people. The Veteran’s Maryland CNC test scores were 88 percent in the right ear and 86 percent in the left ear. The Veteran’s puretone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 Average RIGHT 45 55 65 80 61.25 LEFT 35 55 70 80 60 Applying the results to Table VI, the findings yield a numeric designation of Level III in the right ear and Level III in left ear. Under 38 C.F.R. § 4.85, Table VII, such hearing acuity warrants a 0 percent rating under Diagnostic Code 6100. In January 2019, the Veteran was afforded a VA audiology examination. The Veteran reported that the television was hard to hear. He could not understand it half of the time. This frustrated his wife. The Veteran’s Maryland CNC test scores were 94 percent in the right ear and 88 percent in the left ear. The Veteran’s puretone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 Average RIGHT 35 45 65 70 54 LEFT 30 60 75 80 61 Applying the results to Table VI, the findings yield a numeric designation of Level I in the right ear and Level III in left ear. Under 38 C.F.R. § 4.85, Table VII, such hearing acuity warrants a 0 percent rating under Diagnostic Code 6100. In February 2020, the Veteran was afforded a VA audiology examination. The Veteran reported that he could not really understand old movies very well without wearing his hearing aids. The Veteran’s Maryland CNC test scores were 86 percent in the right ear and 88 percent in the left ear. The Veteran’s puretone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 Average RIGHT 45 55 70 80 62.5 LEFT 45 65 75 80 66.25 Applying the results to Table VI, the findings yield a numeric designation of Level III in the right ear and Level III in left ear. Under 38 C.F.R. § 4.85, Table VII, such hearing acuity warrants a 0 percent rating under Diagnostic Code 6100. After resolving all reasonable doubt in favor of the Veteran, the Board finds that the evidence weighs in favor of restoration of a 10 percent rating for the Veteran’s service-connected bilateral hearing loss because it was not shown that improvement in the Veteran’s bilateral hearing loss reflected actual improvement in the Veteran’s ability to function under the ordinary conditions of life and work. Although speech discrimination testing scores appeared to remain almost the same on the Veteran’s VA examinations since 2016, the Veteran’s puretone threshold averages seemed to improve slightly since the August 2016 VA examination. However, throughout the appeal period the Veteran continued to complain that his hearing was worse. On his VA examinations, he reported similar functional impact, that being the hearing loss affected his ability to hear and understand speech. See Martinak v. Nicholson, 21 Vet. App. 447, 455 (2007) (VA audiologists conducting hearing examinations are required to fully describe the functional effects caused by a hearing disability because merely dictating objective test results does not adequately describe the effect of a hearing disability on a veteran’s occupational functioning and daily activities); cf. Doucette v. Shulkin, 28 Vet. App. 366 (2017) (the ability to hear or understand speech or to hear other sounds in various contexts is contemplated by the schedular rating criteria). In summary, the cumulative evidence does not reflect a material improvement in the Veteran’s hearing disability. Accordingly, the 10 percent rating is restored effective January 14, 2019. Having determined that the Veteran’s rating must be restored, the Board must now determine whether a rating in excess of 10 percent is warranted. Though entitlement to an increased rating is not necessarily a part of every request to restore a rating, considering that the claim at bar was initiated by a request for increase, the Board finds that the issue of entitlement to an increased rating is properly before it. Turning to that question, the Board finds that a disability rating in excess of 10 percent is not warranted. As specifically noted in the preceding analysis, the percentage evaluation for hearing impairment based on the Veteran’s hearing acuity in each ear as demonstrated by the VA audiology examinations shows the Veteran’s hearing acuity has not deteriorated to a point beyond that commensurate with his current 10 percent rating. While the Board is sympathetic to the Veteran’s assertions that he has difficulty hearing, the VA rating criteria are definitive and provide for a precise result based on audiometric test results. His subjective report of difficulty hearing unfortunately cannot be the basis for a schedular evaluative rating. The Board is bound to apply the VA rating schedule, under which the rating criteria are defined by audiometric test findings involving hearing acuity in a controlled laboratory environment. The rating criteria are designed to evaluate difficulty hearing, and there has been no evidence of other symptoms not contemplated by the applicable rating criteria. See Long v. Wilkie, No. 16-1537, 2020 U.S. App. Vet. Claims LEXIS 2371 (Vet. App. Dec. 30, 2020). As the results of the objective testing do not demonstrate that the Veteran’s hearing more closely approximates the levels required for an increased rating, a disability rating in excess of 10 percent for bilateral hearing loss must be denied. The preponderance of the evidence is against the claim, and there is no doubt to be resolved. Evan M. Deichert Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Crawford, Associate 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.