Citation Nr: 21010863 Decision Date: 02/25/21 Archive Date: 02/25/21 DOCKET NO. 20-02 063 DATE: February 25, 2021 ORDER A 40 percent disability rating for service-connected bilateral hearing loss is restored, effective June 9, 2016. FINDINGS OF FACT 1. The Veteran did not receive prior notice of the reduction of his 40 percent rating for bilateral hearing loss, effective November 1, 2018. The rating was effectuated in the August 2018 rating decision. 2. At the time of the reduction of the Veteran’s bilateral hearing loss from a 40 percent to a 10 percent disability rating, in August 2018, the 40 percent rating had been in effect for a period of less than five years. 3. The Veteran continued to meet the criteria for a 40 percent rating for service-connected bilateral hearing loss at the time the August 2018 rating decision reduced his rating to 10 percent disabling, because his hearing had not improved. CONCLUSION OF LAW The reduction of the Veteran’s bilateral hearing loss rating from 40 percent to 10 percent disabling was improper. 38 U.S.C. §§ 1155, 5107, 5112; 38 C.F.R. §§ 3.102, 3.105, 3.321, 3.344, 4.114, Diagnostic Code 6100. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Navy from March 1947 to March 1955. These matters come before the Board of Veterans’ Appeals (Board) on appeal from an August 2018 rating decision by the St Petersburg, Florida Regional Office (RO) of the United States Department of Veterans Affairs. The Veteran testified at a January 2021 hearing held before the undersigned Veterans Law Judge (VLJ). A transcript of the hearing is associated with the claims file. A September 2016 rating decision increased the evaluation of the Veteran’s service-connected bilateral hearing loss from 10 percent to 40 percent effective June 9, 2016. In March 2018 the Veteran filed a claim seeking an increased rating for his bilateral hearing loss. In April 2018, on the basis of a VA examination that same month, the RO proposed to reduce the Veteran’s rating from 40 percent to 0 percent. Notice of such was provided in April 20, 2018, correspondence. The Veteran filed a Notice of Disagreement (NOD), but was informed such was premature, as no actual reduction had taken place. However, in light of his argument and additional medical records, a July 2018 VA hearing loss examination was provided. Thereafter, an August 2018 rating decision reduced the Veteran’s evaluation for bilateral hearing loss from 40 percent to 10 percent disabling, effective November 1, 2018. The Veteran was provided with notice of the reduction later in August 2018. The provisions of 38 C.F.R. § 3.105(e) allow for the reduction in evaluation of a service-connected disability when considered warranted by the evidence, but only after following certain procedural guidelines. When a reduction in payable compensation is warranted, a Veteran must be afforded a rating decision and notification proposing such. No sooner than 60 days following that notice, VA may issue a rating decision implementing the proposed reduction, no sooner than the first of the month following an additional 60 day period from notice of the second rating decision. Should the Veteran request a hearing within 30 days of the proposal, final action must be delayed until after the hearing can be held. Here, the proposed rating decision was issued and notice provided in April 2018. Though the Veteran responded, he did not request a hearing. More than 60 days later, in August 2018, a final rating decision was issued, with notice the same month. The reduction to 10 percent was made effective November 1, 2018, the first day of the month 60 days after the August 2018 decision. Accordingly, the procedural requirements of 38 C.F.R. § 3.105(e) are met. Additionally, however, prior to reducing a veteran’s disability rating, VA is required to comply with several general VA regulations applicable to all rating-reduction cases, regardless of the rating level or the length of time that the rating has been in effect. See 38 C.F.R. §§ 4.1, 4.2, 4.10. These provisions impose a clear requirement that VA rating reductions be based upon review of the entire history of the veteran’s disability. Schafrath v. Derwinski, 1 Vet. App. 589, 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. Thus, in any rating-reduction case, not only must it be determined that an improvement in a disability has actually occurred but also that that improvement actually reflects an improvement in the veteran’s ability to function under the ordinary conditions of life and work. See Faust v. West, 13 Vet. App. 342, 350 (2000). The reduction of a rating generally must have been supported by the evidence on file at the time of the reduction, but pertinent post-reduction evidence favorable to restoring the rating must also be considered. See Dofflemeyer v. Derwinski, 2 Vet. App. 277 (1992). In certain rating reduction cases, VA benefits recipients are to be afforded greater protections, set forth in 38 C.F.R. § 3.344. The provisions of 38 C.F.R. § 3.344(c), however, specify that the provisions of 38 C.F.R. § 3.344 (a) and (b) are only applicable for ratings which have continued for long periods at the same level (five years or more). They do not apply to disabilities which have not become stabilized and are likely to improve. Even though the procedural due process was not deficient under 38 C.F.R. § 3.105(e), as detailed above, the reduction is still improper because there is no evidence showing an improvement in the Veteran’s ability to function under the ordinary conditions of life and work. 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 speech discrimination test (Maryland CNC) 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). To evaluate the degree of disability from service-connected defective hearing, the rating 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, Diagnostic Code 6100. 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). Exceptional patterns of hearing impairment are subject to special rules. 38 C.F.R. § 4.86. When the puretone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) is 55 decibels or more, Table VI or Table VIa is to be used, whichever results in the higher numeral. 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. See 38 C.F.R. § 4.86(b). The decibel loss and speech discrimination ranges designated for each level of hearing impairment in Tables VI and VIA were chosen in relation to clinical findings of the impairment experienced by veterans with certain degrees and types of hearing disability, as per the regulatory history of 38 C.F.R. § 4.85 and § 4.86. Functional impairment due to hearing loss that is compounded by background or environmental noise is a disability picture that is considered in the current schedular rating criteria. Complaints related to actual functional impairment are therefore factored into the criteria as applied. After a careful review of the evidence of record, the Board finds that an improvement in the Veteran’s hearing loss is not established by the medical evidence of record. The Veteran underwent a VA hearing loss examination in July 2016. The audiogram showed puretone thresholds, in decibels, as follows: HERTZ 1000 2000 3000 4000 Average RIGHT 60 65 60 70 64 LEFT 60 60 60 65 61 Speech audiometry revealed speech recognition ability of 56 percent in the right ear and of 44 in the left ear. Applying these results to Table VI in 38 C.F.R. § 4.85, hearing loss in the right ear is assigned a numeric designation of Level VII, and hearing loss in the left ear is assigned a Level VIII. Where hearing loss is at Level VIII in the poorer ear and a Level VII in the better ear, a 40 percent rating is assigned under Table VII. 38 C.F.R. § 4.85. Following a March 2018 claim fro increase, a VA audiometric examination was provided in April 2016. Such showed puretone thresholds of: HERTZ 1000 2000 3000 4000 Average RIGHT 50 55 50 60 54 LEFT 45 55 50 55 51 Speech recognition scores using the Maryland CNC test were 96 percent on the right and 88 percent on the left. Applying these results to Table VI in 38 C.F.R. § 4.85, hearing loss in the right ear is assigned a numeric designation of Level I, and hearing loss in the left ear is assigned a Level II. Where hearing loss is at Level II in the poorer ear and a Level I in the better ear, a 0 percent rating is assigned under Table VII. 38 C.F.R. § 4.85. It was on the basis of this examination reduction was initially proposed. The Veteran underwent a VA hearing loss examination in July 2018, after he submitted VA treatment audiograms (not meeting the requirements for examination, as they did not use the Maryland CNC test) showing results inconsistent with the April examination. The July 2018 audiogram showed puretone thresholds, in decibels, as follows: HERTZ 1000 2000 3000 4000 Average RIGHT 50 55 50 60 54 LEFT 50 50 55 60 54 Speech audiometry revealed speech recognition ability of 88 percent in the right ear and of 84 in the left ear, using the Maryland CNC test. Applying these results to Table VI in 38 C.F.R. § 4.85, hearing loss in the right ear is assigned a numeric designation of Level II, and hearing loss in the left ear is assigned a Level II. Where hearing loss is at Level II in both ears a noncompensable rating is assigned under Table VII. 38 C.F.R. § 4.85. The VA audiologist noted the Veteran reported experiencing difficulty hearing in groups, and frequently has to ask his wife to repeat. No explanation was offered for the change in speech recognition as compared to the July 2016 examination. The Veteran underwent a private hearing loss examination conducted by his private audiologist, DR in July 2018. DR stated the test revealed a mild sloping to severe sensorineural hearing loss in the right ear, average decibel loss of 58 and a mild sloping to moderately-severe sensorineural hearing loss in the left ear, average decibel loss of 58. Word recognition testing using the Maryland CNC test revealed speech discrimination of 68 percent in the right ear and 64 percent in the left ear. The Veteran underwent a VA hearing loss examination in November 2019. The audiogram showed puretone thresholds, in decibels, as follows: HERTZ 1000 2000 3000 4000 Average RIGHT 55 60 60 65 60 LEFT 55 60 60 70 61 Speech audiometry revealed speech recognition could not be tested in the right ear; left ear was 76 percent. Applying these results to Table VIA in 38 C.F.R. § 4.85, hearing loss in the right ear is assigned a numeric designation of Level IV. Using Table VI or VIA for hearing loss in the left ear, the left ear is assigned a Level IV. Where hearing loss is at Level IV in both ears, a 10 percent rating is assigned under Table VII. 38 C.F.R. § 4.85. The VA audiologist noted the Veteran reported having a problem understanding words in a conversation. The Veteran’s most recent hearing loss examination was conducted by his private audiologist, DR, in July 2020. The Board notes DR’s examination was conducted in accordance with VA regulations, using the Maryland CNC speech discrimination test. Test results reflect hearing loss averaging 58 decibels in the right ear with 52 percent speech recognition and hearing loss averaging 60 decibels in the left ear with 48 percent speech recognition. Applying these results to Table VI in 38 C.F.R. § 4.85, hearing loss in the right ear is assigned a numeric designation of Level VII, and hearing loss in the left ear is assigned a Level VIII. Where hearing loss is at Level VIII in the poorer ear and a Level VII in the better ear, a 40 percent evaluation is assigned under Table VII. 38 C.F.R. § 4.85. DR noted the Veteran’s long-standing history of bilateral hearing loss and tinnitus, and that he wears bilateral hearing aids. The Veteran reported that his word understanding had declined since his last audiogram in December 2019. DR noted no significant change in hearing thresholds compared to his most recent audiogram, however, a significant decline in word recognition was found in both ears. She stated that the Veteran’s hearing loss results in difficulty understanding speech in general, as well as difficulty with localization, which negatively affects communication, socialization and quality of life. The medical evidence of record shows inconsistent audiometric findings throughout the period on appeal. Despite the variations in test results, the Board notes that the results of the July 2016 VA hearing loss examination, the private July 2018 audiogram completed by DR and the July 2020 private audiogram completed by DR reflect consistent results. Additionally, the Board is aware that sensorineural hearing loss is a chronic disease known to progressively worsen and one that is not subject to improvement by its nature, as auditory nerves and cilia cannot be repaired. The Board finds that the medical evidence of record establishes that the Veteran’s disability picture has effectively remained unchanged throughout the period on appeal. The variation in evaluation appears, mainly to be based on the speech recognition scores, which have varied widely, without explanation for such. However, the most recent VA examiner noted it was not possible to even test speech on the right ear, and the Veteran has consistently reported that the major impact of his hearing impairment is in understanding conversation on spoken word. In other words, actual improvement of the disability under the ordinary conditions of life is not shown, objectively or subjectively. Therefore, the reduction was improper and restoration of the 40 percent disability evaluation is warranted. Additionally, the Board also finds that, based on the above testing results, the Veteran’s hearing loss does not meet the criteria for an evaluation in excess of 40 percent disability evaluation at any time during the appeal period. WILLIAM H. DONNELLY Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. M. Lunger, 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.