Citation Nr: 21010492 Decision Date: 02/25/21 Archive Date: 02/25/21 DOCKET NO. 19-09 146 DATE: February 25, 2021 ORDER Restoration of a 30 percent disability rating for bilateral hearing loss effective September 1, 2018 is granted. Entitlement to a rating higher than 30 percent for bilateral hearing loss is denied. FINDINGS OF FACT 1. The decision for a reduction in rating for service-connected bilateral hearing loss did not comply with relevant procedural safeguards, law and regulations. At the time of the June 2018 rating decision that effectuated the reduction from 30 percent to 0 percent, effective September 1, 2018, the Agency of Original Jurisdiction (AOJ) did not properly consider private treatment records submitted by the Veteran in support of his claim. 2. Veteran’s bilateral hearing has been manifested by hearing acuity of no worse than Level III in the right ear and no worse than Level III in the left ear. CONCLUSIONS OF LAW 1. The criteria for restoration of a 30 percent disability rating for bilateral hearing loss from September 1, 2018 are met. 38 U.S.C. §§ 1155, 5107(b), 5112; 38 C.F.R. §§ 3.105(e), 3.344, 4.3, 4.85, Diagnostic Code (DC) 6100. 2. The criteria for a rating higher than 30 percent for bilateral hearing loss have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.85, 4.86, Diagnostic Code 6100. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from April 1959 to April 1962 and from July 1962 to July 1965. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a rating decision issued in June 2018 by a Department of Veterans Affairs (VA) Regional Office (RO), where the agency of original jurisdiction (AOJ) effectuated a reduction of the rating for service-connected bilateral hearing loss, from 30 to 0 percent, effective September 1, 2018. In all claims for increased ratings, the Veteran is presumed to be seeking the maximum possible evaluation; 100 percent compensation for their disability. See A.B. v. Brown, 6 Vet. App. 35 (1993). As such, the issue of entitlement to an increased rating for service-connected bilateral hearing loss is on appeal in addition to the issue of whether the June 2018 reduction of the rating was proper. Id. In June 2019, the issues were remanded for further development, to include obtaining private treatment records from a private audiologist and for the AOJ to issue a Statement of the Case (SOC) on the issue of whether a reduction in rating for bilateral hearing loss from 30 percent to zero percent was proper. The outstanding private treatment records and a Supplemental Statement of the Case (SSOC) were associated with the electronic claims file in July 2019 and May 2020 respectively. Stegall v. West, 11 Vet. App. 268 (1998). In August 2020, the Board issued a hearing clarification letter, informing the Veteran that a substantive appeal (VA Form 9) was necessary to clarify if he sought a hearing on these matters. The Veteran submitted a VA Form 9 declining a hearing but specified that he disagreed with the reduction. See Correspondence (August 2020) and Third Party Correspondence (November 2020). Restoration of a 30 percent disability rating for bilateral hearing loss from September 1, 2018 is granted. The Veteran contends that the reduction of the disability rating for service-connected bilateral hearing loss from 30 to zero percent was improper as the reduction did not adequately explain that his disability had improved, and that the improvement would be maintained under the ordinary conditions of life. He asserted that he has a big problem with hearing and that in response to the reduction, he submitted five (5) pages of medical records from a physician at Hearing Edge, LLC. See NOD (July 2018) and Appellate Brief (July 2020). The requirements for adequate reductions are two-fold; there are both procedural and substantive requirements. Pursuant to 38 C.F.R. § 3.105(e), where a reduction in the evaluation of a service connected disability is considered warranted and the lower evaluation would result in a reduction or discontinuance of compensation payments currently being made, a rating proposing the reduction or discontinuance will be prepared setting forth all material facts and reasons. The beneficiary will be notified at his or her latest address of record of the contemplated action and furnished detailed reasons therefore and will be given 60 days for the presentation of additional evidence to show that compensation payments should be continued at their present level. If additional evidence is not received within that period, final rating action will be taken and the award will be reduced or discontinued effective 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). Substantively, where a disability rating has been in effect less than five years, a rating reduction is warranted where reexamination of the disability discloses improvement of that disability. 38 C.F.R. § 3.344(c). In making that determination, certain general regulatory requirements must be met. Brown v. Brown, 4 Vet. App. 413 (1993) (noting that the general regulations governing the rating of disabilities apply to a rating reduction case). The evidence must reflect an actual change in the Veteran’s condition and not merely a difference in the thoroughness of the examination or in the use of descriptive terms. 38 C.F.R. § 4.13. These provisions impose a clear requirement that VA rating reduction be based upon review of the entire history of the veteran’s disability. Schafrath v. Derwinski, 1 Vet. App. at 594. Such review requires VA to ascertain, based upon review of the entire recorded history of the condition, whether the evidence reflects an actual change in the disability and whether the examination reports reflecting such change are based upon thorough examinations. 38 C.F.R. §§ 4.1, 4.2; Brown, 4 Vet. App. at 420-421. Thus, in any rating reduction case not only must it be determined that an improvement in a disability has actually occurred, but also that improvement actually reflects an improvement in the veteran’s ability to function under the ordinary conditions of life and work. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10; see also Faust v. West, 13 Vet. App. 342, 350 (2000). The law provides that where a rating decision was made without observance of law, although a remand for compliance with that law would normally be an adequate remedy, in a rating reduction case, the erroneous reduction must be vacated, and the prior rating restored. Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). When a veteran’s disability rating is reduced by a RO without following the applicable regulations, the reduction is void ab initio (has no legal effect). See Greyzck v. West, 12 Vet. App. 288, 292 (1999). Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Evaluations of defective hearing range from noncompensable to 100 percent based on organic impairment of hearing acuity as measured by the results of a controlled Maryland CNC speech discrimination test together with the average hearing threshold level measured by pure tone audiometry tests in the frequencies of 1000, 2000, 3000, and 4000 cycles per second (Hertz). 38 C.F.R. § 4.85, DC 6100. To evaluate the degree of disability from bilateral service-connected hearing loss, the schedule establishes 11 auditory hearing acuity levels designated from Level I for essentially normal hearing acuity through Level XI for profound deafness. 38 C.F.R. § 4.85, Tables VI and VII. Disability ratings for hearing loss are derived from a mechanical application of the rating schedule to the numeric designations resulting from audiometric testing. See Lendenmann v. Principi, 3 Vet. App. 345 (1992). The rating schedule establishes 11 auditory hearing acuity levels based on average puretone thresholds and speech discrimination. See 38 C.F.R. §§ 4.85, 4.86. An examination for hearing impairment for VA purposes must be conducted by a state-licensed audiologist and must include a controlled speech discrimination test (Maryland CNC) and a puretone audiometric test. Examinations will be conducted without the use of hearing aids. 38 C.F.R. § 4.85(a). An exceptional pattern of hearing impairment occurs when the pure tone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) is 55 decibels or more. 38 C.F.R. § 4.86(a). In that situation, 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. The Board finds that the AOJ did not consider pertinent private treatment records that showed a slight worsening of his hearing loss prior effectuating the reduction of the disability rating; and therefore, the reduction was improper. Restoration of a 30 percent disability rating for bilateral hearing loss effective September 1, 2018 is granted. By way of history, the AOJ granted service connection for bilateral hearing loss at a non-compensable rating (zero percent) effective August 3, 2010 based on a June 2011 VA examination. In the June 2011VA examination report, the Veteran’s Maryland CNC Word List speech recognition score and pure tone thresholds, in decibels, were as follows: June 2011 HERTZ 1000 2000 3000 4000 Avg CNC RIGHT 20 25 45 70 40 80 LEFT 15 15 25 45 25 94 Applying the results to Table VI, the findings yields a numeric designation of Level III in the right ear and Level I in the left ear. Entering the resulting bilateral numeric designation of Level III for the right ear and Level I for the left ear to 38 C.F.R. § 4.85, Table VII, equates to a noncompensable disability rating (zero percent) under DC 6100. In an August 2013 VA examination report, the Veteran’s Maryland CNC Word List speech recognition score and pure tone thresholds, in decibels, were as follows: August 2013 HERTZ 1000 2000 3000 4000 Avg CNC RIGHT 25 30 50 70 44 90 LEFT 15 20 30 45 28 94 Applying the results to Table VI, the findings yields a numeric designation of Level II in the right ear and Level I in the left ear. Entering the resulting bilateral numeric designation of Level II for the right ear and Level I for the left ear to 38 C.F.R. § 4.85, Table VII, equates to a noncompensable disability rating (zero percent) under DC 6100. In a November 2016 report, the Veteran’s Maryland CNC Word List speech recognition score and pure tone thresholds, in decibels, were as follows: November 2016 HERTZ 1000 2000 3000 4000 Avg CNC RIGHT 70 75 80 85 77.5 88 LEFT 60 65 65 75 66.25 88 Applying the results to Table VI, the findings yields a numeric designation of Level III in the right ear and Level III in the left ear. Entering the resulting bilateral numeric designation of Level III for the right ear and Level III for the left ear to 38 C.F.R. § 4.85, Table VII, equates to a noncompensable disability rating under Diagnostic Code 6100. However, these results showed an exceptional pattern of hearing impairment under 38 C.F.R. § 4.86 in both ears. Applying the results to Table VIa yields a numeric designation of Level VII in the right ear and level V in the left ear. Entering the resulting bilateral numeric designation of Level VII for the right ear and Level V for the left ear to 38 C.F.R. § 4.85, Table VII, equates to a 30 percent disability rating under DC 6100. Here, Table VIa yielded the highest rating. In accordance with 38 C.F.R. § 4.86, the AOJ properly assigned a 30 percent rating for the disability. In a January 2017 rating decision, the AOJ granted the Veteran’s claim for a higher rating for service-connected bilateral hearing loss, from 0 to 30 percent, effective October 5, 2016, based on findings reported in the November 2016 VA examination report. In March 2017, the Veteran filed a VA 21-8940 Veterans Application for Increased Compensation Based on Unemployability, claiming he was unable to work due to his service-connected bilateral hearing loss, among other disabilities. See also VA 21-526EZ, Fully Developed Claim (March 2017). In April 2017, the AOJ afforded the Veteran a VA examination to assess the severity of his hearing loss disability in conjunction with his claim for TDIU. In the report, the Veteran’s Maryland CNC Word List speech recognition score and pure tone thresholds, in decibels, were as follows: April 2017 HERTZ 1000 2000 3000 4000 Avg CNC RIGHT 45 60 75 85 66 90 LEFT 35 45 50 65 49 94 Applying the results to Table VI, the findings yields a numeric designation of Level III in the right ear and Level I in the left ear. Entering the resulting bilateral numeric designation of Level III for the right ear and Level I for the left ear to 38 C.F.R. § 4.85, Table VII, equates to a noncompensable disability rating (zero percent) under DC 6100. A May 2017 letter proposed to reduce the disability rating assigned to service-connected bilateral hearing loss, from 30 to 0 percent, based on findings in the April 2017 VA examination, showing that the Veteran’s hearing acuity had improved since his November 2016 VA examination. The AOJ properly notified the Veteran of their proposal, allowed 60 days to submit additional evidence and informed him of his rights to a personal hearing and to obtain representation. See proposal to Reduce Service Connected Compensation (May 2017) and Rating Decision-Narrative (May 2017). In August 2017, the Veteran submitted private treatment records from Hearing Edge, LLC dated June 2017 to contest the reduction. The records included a letter from the provider stating the Veteran was a candidate for hearing aids and an audiogram with pure tone threshold and word recognition data. However, it did not indicate if the audiogram results were based on air or bone conduction or whether the Maryland CNC test was utilized to determine word recognition accuracy in order for the audiogram to be adequate for adjudication purposes. Of note, the results were similar to the April 2017 VA examination, the basis for the proposed reduction, differing at the 3000 Hz level in the right ear, which showed as slightly worse. See Medical Treatment Record - Non-Government Facility (August 2017). In a June 2018 rating decision, the AOJ effectuated the reduction from 30 percent to 0 percent, effective September 1, 2018. Notably, the AOJ failed to consider the private treatment records submitted in August 2017 in the evidence considered to render the decision. See Rating Decision-Narrative, “Evidence” (June 2018). The Veteran filed a NOD with that decision in July 2018. In July 2018, the Veteran appealed the decision by filing a Notice of Disagreement. In doing so, he submitted 5-pages of additional private treatment records from Hearing Edge, LLC with audiograms dated January 2018 and July 2018. See NOD (July 2018). Once more, the audiograms did not specify if the test was performed with bone or air conduction nor whether a Maryland CNC test was utilized for speech discrimination testing. As such, these results were not adequate for adjudication purposes. As a result, in December 2018, the AOJ afforded the Veteran a VA examination to assess the severity of his hearing loss disability. In the report, the Veteran’s Maryland CNC Word List speech recognition score and pure tone thresholds, in decibels, were as follows: December 2018 HERTZ 1000 2000 3000 4000 Avg CNC RIGHT 45 55 75 80 64 86 LEFT 35 40 60 70 51 86 Applying the results to Table VI, the findings yields a numeric designation of Level III in the right ear and Level II in the left ear. Entering the resulting bilateral numeric designation of Level III for the right ear and Level II for the left ear to 38 C.F.R. § 4.85, Table VII, equates to a noncompensable disability rating under DC 6100. Collectively, the evidence shows that the rating reduction for the Veteran’s bilateral hearing loss from 30 to 0 percent was improper and that restoration is warranted. Specifically, the reduction was made without observance of law in that procedural safeguards were not dispensed when the AOJ did not consider the private treatment records submitted in August 2017 prior to reducing the rating. As such, the reduction is void ab initio; the erroneous reduction must be vacated, and the prior rating restored. Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991) (has no legal effect). See Greyzck v. West, 12 Vet. App. 288, 292 (1999). The lack of proper consideration of the private treatment records accounts for a due process of law violation that inherently invalidates the RO’s reduction in rating action. The procedural steps of 38 C.F.R. § 3.105(e) were not followed in this case. Accordingly, the claim seeking restoration of a 30 percent disability rating for service-connected hearing loss from September 1, 2018 is granted. 2. Entitlement to a rating higher than 30 percent for bilateral hearing loss is denied. The Veteran contends that he has a big problem with hearing. The Veteran also submitted a lay statement from his wife, D.L., who asserted his hearing worsens and he would not be able to work due to his hearing loss. See NOD (July 2018), Appellate Brief (July 2020), and Buddy/Lay Statement (March 2017). Based on the evidence above, a rating higher than 30 percent for the Veteran’s bilateral hearing loss is not warranted. The Board expressly acknowledges its consideration of the lay evidence of record when adjudicating this claim, including the Veteran’s and his wife’s statements of his significant hearing problem. The Veteran is competent to report difficulty with his hearing; however, disability ratings for hearing loss are derived from a mechanical application of the rating schedule to the numeric designations resulting from audiometric testing. See Lendenmann v. Principi, 3 Vet. App. 345 (1992). The rating criteria contemplate speech reception thresholds and ability to hear spoken words on Maryland CNC testing. The functional impact that the Veteran describes, is contemplated by the rating criteria. Doucette v. Shulkin, 28 Vet. App. 366 (2017). The Veteran’s main complaint is reduced hearing acuity and clarity, which is what is contemplated in the rating assigned. See Rossy v. Shulkin, 29 Vet. App. 142, 145 (2017). Of note, the findings from the April 2017 and December 2018 VA examinations reflect that a non-compensable rating (zero) is appropriate for the Veteran’s current hearing level. However, the Board declines to reduce the rating. The longitudinal history of the Veteran’s condition since June 2011 has demonstrated a downward trend of worsening hearing loss and there is insufficient evidence of sustained improvement of the hearing loss disability that would improve his earning capacity to warrant a staged rating at this time. 38 U.S.C. § 1155; 38 C.F.R. § 4.1, 4.7. Accordingly, the preponderance of the evidence is against the claim of entitlement to rating higher than 30 percent for hearing loss. In reaching the conclusion above, the Board considered the doctrine of reasonable doubt, however, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Michael L. Marcum Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board N. Pendleton, 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.