Citation Nr: 21013342 Decision Date: 03/09/21 Archive Date: 03/09/21 DOCKET NO. 18-52 149 DATE: March 9, 2021 ORDER Prior to January 1, 2019, entitlement to a rating in excess of 30 percent disabling for bilateral hearing loss is denied. Effective January 1, 2019, the reduction from a 30 to 10 percent rating for bilateral hearing loss was proper. From January 1, 2019 to December 19, 2019, entitlement to a rating in excess of 10 percent disabling for bilateral hearing loss is denied. Effective December 19, 2019, entitlement to a 30 percent rating, but no higher, for bilateral hearing loss is granted subject to controlling regulations applicable to the payment of monetary benefits. FINDINGS OF FACT 1. Prior to January 1, 2019, the Veteran’s bilateral hearing loss disability manifested no worse than level VI hearing loss in the right ear, and no worse than level III hearing loss in the left ear. 2. At the time of the October 2018 reduction in evaluation of the Veteran’s bilateral hearing loss from 30 percent disabling to 10 percent, there was a showing of improvement in disability to include audiometric testing results correlating to a designation of level VI for the right ear, and level III for the left ear. 3. From January 1, 2019 to December 19, 2019, the Veteran’s bilateral hearing loss disability manifested no worse than level VI hearing loss in the right ear, and no worse than level III hearing loss in the left ear. 4. Effective December 19, 2019, the Veteran’s bilateral hearing loss disability manifested level VIII hearing loss in the right ear, and level V hearing loss in the left ear. CONCLUSIONS OF LAW 1. Prior to January 1, 2019, the criteria for a rating in excess of 30 percent disabling for bilateral hearing loss have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.159, 4.1, 4.2, 4.7, 4.10, 4.85, 4.86, DC 6100. 2. Effective January 1, 2019, the reduction of the rating for bilateral hearing loss from 30 to 10 percent was proper. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.105, 3.344, 4.85, 4.86, Diagnostic Code (DC) 6100. 3. From January 1, 2019 to December 19, 2019, the criteria for a rating in excess of 10 percent disabling for bilateral hearing loss have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.159, 4.1, 4.2, 4.7, 4.10, 4.85, 4.86, DC 6100. 4. Effective December 19, 2019, the criteria for a 30 percent rating, but no higher, for bilateral hearing loss have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.159, 4.1, 4.2, 4.7, 4.10, 4.85, 4.86, DC 6100. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1953 to November 1955. The Veteran died in April 2020. The appellant is the Veteran’s widow. See January 2021 VA Substitution Determination Letter. This matter is before the Board of Veterans’ Appeals (Board) on appeal from an October 2018 rating decision by a Department of Veterans Affairs Regional Office (RO). In December 2019, the Veteran testified at a Board videoconference hearing before the undersigned. A copy of the transcript of that hearing has been associated with the claims file. At that time, the Board held the record open for 60 days for the Veteran to submit additional relevant evidence. The Veteran filed an increased rating claim for his bilateral hearing loss in June 2018. Following a July 2018 VA examination, a July 2018 rating decision proposed to reduce the currently assigned 30 percent evaluation to 10 percent. Thereafter, an October 2018 rating decision effectuated the rating reduction which became effective January 1, 2019. In his October 2018 notice of disagreement (NOD), the Veteran requested a rating in excess of 10 percent disabling as of January 1, 2019. An October 2018 statement of the case (SOC) characterized the issue on appeal as an increased rating claim. However, the SOC additionally addressed the propriety of the rating reduction. Accordingly, the Board has recharacterized the issue on appeal as noted on the cover page. In March 2020, the Board remanded this case and instructed the Agency of Original Jurisdiction (AOJ) to obtain a VA examination. Unfortunately, the Veteran died prior to scheduling his examination. Accordingly, after reviewing the actions of the AOJ, the Board finds there was substantial compliance with the requested development. Dyment v. West, 13 Vet. App. 141 (1999); Stegall v. West, 11 Vet. App. 268 (1998). Rating Reduction The appellant seeks restoration of the 30 percent disability rating for the Veteran’s service-connected bilateral hearing loss. The appellant contends that the reduction of the evaluation from 30 to 10 percent was improper. A rating reduction is the result of a course of action taken by VA, and not a claim by a veteran. When the propriety of a rating reduction is at issue, the focus is on the actions of the AOJ 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 Board notes that 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 AOJ must issue a rating proposing the reduction and setting forth all material facts and reasons. 38 C.F.R. § 3.105(e). A period of 60 days is allowed for response. Id. The AOJ 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 required as the October 2018 rating decision that implemented the rating reduction changed the Veteran’s overall disability rating, which reduced the combined evaluation from 40 to 20 percent. The special procedural requirements outlined in 38 C.F.R. § 3.105(e) and (i) were therefore applicable in this case. The October 2018 rating decision reduced the evaluation from 30 to 10 percent effective January 1, 2019. Prior to this decision, a July 2018 rating decision was issued which proposed reducing the rating of the Veteran’s bilateral hearing loss from 30 to 10 percent. The Veteran was notified of the proposed rating reduction in July 2018. The July 2018 notice enclosed the rating decision that set forth all material facts and reasons, at that time, for the proposed rating reduction. Additionally, the July 2018 notice properly notified the Veteran of the 60 day period to provide evidence, how to obtain a personal hearing in accordance with 38 C.F.R. § 3.105(i), and what evidence he could submit. Accordingly, with regard to the October 2018 rating decision, the notification procedures were satisfied. A veteran’s disability rating shall not be reduced unless an improvement in the disability is shown to have occurred. See 38 U.S.C. § 1155; Greyzck v. West, 12 Vet. App. 288, 292 (1999). 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 30 percent evaluation for the service-connected bilateral hearing loss had been in effect for less than three years at the time the reduction 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, the Court has 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. See Brown v. Brown, 5 Vet. App. 413, at 420-421 (1993), citing 38 C.F.R. §§ 4.1, 4.2, 4.10, 4.13. With regard to hearing loss, the rating criteria require consideration of the results of examinations using controlled speech discrimination tests (Maryland CNC) with the results of puretone audiometry tests. The results are charted on Table VI and Table VII, as set forth in the Rating Schedule. In order to establish entitlement to a higher rating for hearing loss it must be shown that certain minimum levels of the combination of the percentage of speech discrimination loss and average puretone decibel loss are met. 38 C.F.R. § 4.85. Hearing tests will be conducted without hearing aids. The regulations set forth eleven auditory acuity levels, designated from Roman numerals I to XI, in escalating order of hearing impairment. 38 C.F.R. § 4.85. The appropriate auditory acuity level is determined based on a combination of the percentage of speech discrimination and the puretone threshold average. Additional considerations apply when exceptional patterns of hearing loss are demonstrated, which are defined as either (a) puretone averages of 55 or greater at 1000, 2000, 3000, and 4000 Hertz, or; (b) a puretone threshold of 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hertz. 38 C.F.R. § 4.86(a). Once an acuity level is established for each ear, Table VII, Percentage Evaluations for Hearing Impairment, is used to determine the appropriate disability evaluation. The appropriate rating is determined based on a combination of the levels of hearing impairment established for each ear. In other words, disability ratings for hearing impairment are derived by a mechanical application of the rating schedule to the numeric designations assigned after audiometric evaluations are made. Bruce v. West, 11 Vet. App. 405 (1998); Lendenmann v. Principi, 3 Vet. App. 345 (1992). The Veteran filed an increased rating claim for his service-connected bilateral hearing loss in June 2018. Thereafter, he underwent a VA examination July 2018. The examiner noted the following audiometric testing results: HERTZ 500 1000 2000 3000 4000 RIGHT 15 40 70 75 85 LEFT 25 30 65 70 85 The average puretone threshold (1000 through 4000 Hz) in the right ear was 67.5 decibels and 62.5 decibels in the left ear. Speech recognition scores were 68 percent for the right ear, and 84 percent for the left ear. Turning to the results of the July 2018 VA examination, the findings correlate to a designation of level VI for the right ear, and level III for the left ear. Those results provide a 10 rating under DC 6100. Based on the July 2018 VA examination report revealing audiometric data meeting the rating criteria for a 10 percent rating pursuant to DC 6100, the July 2018 rating decision proposed to reduce the rating to 10 percent. After a review of the evidence of record at the time of the October 2018 rating decision, the Board finds that the preponderance of evidence established improvement in the Veteran’s bilateral hearing loss. Specifically, the evidence of record showed audiometric testing results that met the criteria for a 10 percent rating. Accordingly, the Board concludes that the reduction in evaluation from 30 percent to 10 percent was appropriate based on the evidence then of record. 38 C.F.R. §§ 3.344, 4.85, 4.86. Increased Rating 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. The basis of disability ratings is the ability of the body as a whole, or of the psyche, or of a system or organ of the body, to function under the ordinary conditions of daily life, including employment. 38 C.F.R. § 4.10. Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability more nearly approximates the criteria required for that particular rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When a reasonable doubt arises regarding the degree of disability, that reasonable doubt will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. Staged ratings are appropriate for an increase rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Bilateral Hearing Loss An increased rating claim for the Veteran’s service-connected bilateral hearing loss disability was filed in June 2018. As noted above, the criteria for rating hearing impairment require consideration of the results of examinations using controlled speech discrimination tests (Maryland CNC) with the results of puretone audiometry tests. The results are charted on Table VI and Table VII, as set forth in the Rating Schedule. In order to establish entitlement to a higher rating for hearing loss it must be shown that certain minimum levels of the combination of the percentage of speech discrimination loss and average puretone decibel loss are met. 38 C.F.R. § 4.85. In addition to the July 2018 VA examination results noted in the section above, the evidence of record includes a June 2019 VA medical record showing the Veteran underwent audiological testing. See VA Medical Records Received January 2021. Although the VA medical record does not include the audiological testing results, those results are contained in a December 2019 VA medical opinion. The following audiometric testing results were noted: HERTZ 500 1000 2000 3000 4000 RIGHT 20 45 70 90 85 LEFT 30 35 70 70 85 The average puretone threshold (1000 through 4000 Hz) in the right ear was 72.5 decibels and 65 decibels in the left ear. Word recognition scores were 72 percent for the right ear, and 84 percent for the left ear. At a December 2019 Board hearing, the Veteran testified that since his July 2018 VA examination, his hearing loss had worsened resulting in alterations to his hearing aids. The Veteran further stated that he did not like going out in public because he was unable to hear what people were asking him. He further stated that he could not hear his grandchildren and had trouble hearing the television. The appellant stated that the Veteran had a hard time hearing on the telephone, even with a Bluetooth. In December 2019, the Veteran submitted a December 19, 2019 private audiological evaluation. That record included speech recognition scores and a blank audiometric data field. In March 2020, the Veteran resubmitted the December 2019 private audiological examination which included the audiometric testing results. A review of that record shows the following audiometric testing results: HERTZ 500 1000 2000 3000 4000 RIGHT 15 40 70 75 85 LEFT 25 30 65 70 85 The average puretone threshold (1000 through 4000 Hz) in the right ear was 67.5 decibels and 62.5 decibels in the left ear. Word recognition scores were 50 percent for the right ear, and 70 percent for the left ear. As noted above, the July 2018 VA examination findings correlate to a designation of level VI for the right ear, and level III for the left ear. Those results provide a 10 rating under DC 6100. Turning to the June 2019 VA audiological testing results, those findings also correlate to a designation of level VI for the right ear, and level III for the left ear. Accordingly, those results provide a 10 rating under DC 6100. Turning to the December 19, 2019 audiological testing results, those findings correlate to a designation of level VIII for the right ear, and level V for the left ear. Those results provide a 30 rating under DC 6100. The Board further notes that an exceptional pattern of hearing loss has not been demonstrated for either ear during the appeal period (i.e. the puretone threshold at each of the four specified frequencies are manifested by 55 decibels or more). The Board emphasizes that disability ratings for hearing impairment are derived by a mechanical application of the rating schedule to the numeric designations assigned after audiometric evaluations are rendered. Lendenmann v. Principi, 3 Vet. App. 345 (1992). To the extent the appellant may argue or suggest that the clinical data supports an increased disability rating or that the rating criteria should not be employed, she is not competent to make that assertion. Kahana v. Shinseki, 24 Vet. App. 428 (2011); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer). As indicated, the rating of hearing loss disabilities requires the administration of audiometric testing that is administered and interpreted by a professional. Therefore, prior to January 1, 2019, the Board finds that the preponderance of the evidence is against assigning a rating in excess of 30 percent disabling. From January 1, 2019 to December 19, 2019, the 10 percent rating assigned accurately reflects the Veteran’s disability picture as contemplated under the VA rating criteria. Effective December 19, 2019, the Board finds that a 30 percent rating, but no higher, is warranted. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). S. HENEKS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Lamb, 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.