Citation Nr: 21014480 Decision Date: 03/12/21 Archive Date: 03/12/21 DOCKET NO. 19-30 296 DATE: March 12, 2021 ORDER The Veteran’s bilateral hearing loss rating is restored to 60 percent. A total disability rating due to individual unemployability (TDIU) is granted, effective from November 19, 2018. FINDINGS OF FACT 1. The Veteran’s hearing loss was improperly reduced from 60 to 50 percent as the record did not show an actual improvement in functioning under the ordinary conditions of life and work. 2. His hearing loss and tinnitus preclude him from obtaining and maintaining substantial gainful employment for the entire period on appeal. CONCLUSIONS OF LAW 1. The criteria are met to restore the Veteran’s 60 percent rating for hearing loss. 38 U.S.C. §§ 1155, 5107, 5112; 38 C.F.R. §§ 3.105, 3.344, 4.85, DC 6100. 2. The criteria are met for a TDIU effective from November 19, 2018. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 3.340, 3.341, 3.400, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1957 to July 1959. This appeal is from a January 2019 rating decision. In November 2020, the Veteran had a personal hearing with the undersigned VLJ. At the hearing, the Veteran reported expected VA treatment for his hearing loss to occur potentially in December 2020. The Board notes that the record was held open for the Veteran to provide updated treatment records, and updated records through September 2020 were received. Aside from the Veteran’s report that the later treatment was scheduled, it is not clear that it happened. However, as the Veteran’s appeal concerns the propriety of his rating reduction and entitlement to a TDIU, and not whether an increased rating for hearing loss is warranted, the Board finds that review of this record is not required and that his appeals can be granted based on the evidence of record. Accordingly, a remand to obtain updated VA treatment records is not warranted. 1. The Veteran’s bilateral hearing loss rating is restored to 60 percent. Disability ratings are assigned in accordance with VA’s Schedule for Rating Disabilities and are intended to represent the average impairment of earning capacity resulting from disability. See 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. Separate diagnostic codes (DCs) identify the various disabilities. See generally 38 C.F.R. Part 4. If two disability evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Reasonable doubt regarding the degree of disability will be resolved in favor of the claimant. 38 C.F.R. § 4.3. The Veteran’s rating for bilateral hearing loss was established as 60 percent disabling, effective October 20, 2016. In November 2018, he filed a claim asking for a TDIU, on the basis that his hearing loss precluded him from working in his past work. He was given a VA examination in December 2018, and a rating decision was issued in January 2019 decreasing his rating from 60 to 50 percent, effective from the date of the VA examination. As this decrease did not lower his combined disability rating, the law did not require him to be provided with advance notice. His hearing loss is rated under DC 6100. 38 C.F.R. § 4.85. Once a hearing disability has been established, a numeric designation of hearing impairment is determined for each ear by applying the puretone threshold average and Maryland CNC percentage scores to Table VI (“Numeric Designation of Hearing Impairment Based on Puretone Threshold Average and Speech Discrimination”), which results in a Roman numeral designation. 38 C.F.R. § 4.85(b), Table VI. Disability ratings are then assigned by combining the level of hearing loss in each ear in Table VII (“Percentage Evaluation for Hearing Impairment”). 38 C.F.R. § 4.85(e), Table VII; see Lendenmann v. Principi, 3 Vet. App. 345 (1992). Table VI is generally used to determine the Roman numeral designation (I through XI) for hearing impairment in each ear, unless an exceptional pattern of hearing loss is shown, in which case Table VIa may be used. 38 C.F.R. § 4.86. In rating reduction cases, VA must establish, by a preponderance of evidence, that the reduction was warranted. Brown v. Brown, 5 Vet. App. 413, 421 (1993); Kitchens v. Brown, 7 Vet. App. 320, 324 (1995). A reduction in rating must be based upon review of the entire history of the disability. Brown, 5 Vet. App. at 420; see also 38 C.F.R. §§ 4.1, 4.2, 4.10. VA must then ascertain whether the evidence reflects an actual change in the disability and whether the examination reports reflecting such change are based on thorough and adequate examinations. Faust v. West, 13 Vet. App. 342, 349 (2000). Finally, it must be determined whether the improvement actually reflects an improvement in the veteran’s ability to function under the ordinary conditions of life and work. Brown, 5 Vet. App. at 421. The regulations “impose a clear requirement that VA rating reductions, as with all VA rating decisions, be based upon review of the entire history of the veteran’s disability.” Brown v. Brown, 5 Vet. App. 413, 420 (1993) (referring to 38 C.F.R. §§ 4.1, 4.2, 4.13). Ratings that have been in effect for less than five years, such as here, require improvement before an evaluation is reduced. 38 C.F.R. § 3.344(c). To reiterate, the rating agency must determine whether the improvement actually reflects an improvement in the veteran’s ability to function under the ordinary conditions of life and work. Brown, 5 Vet. App. at 421. After review of the evidence, the Board finds that the reduction was not proper as the AOJ (agency of original jurisdiction) did not address whether there was an actual improvement in the Veteran’s ability to function under the ordinary conditions of life and work. Id. Rather, the January 2019 decision merely noted that his hearing test results had improved. This determination does not address whether the evidence shows an actual improvement in the ability to function. The preponderance of the evidence weighs against finding improved ability to function. At the May 2017 VA examination, which contains the testing that established his 60 percent rating, he complained that his biggest trouble was recognizing words and understanding speech. He reported that he misinterprets words and phrases frequently, and that he has even more difficulty with high pitched voices and accents. Interfering sounds like birds or traffic make it more difficult to hear conversation. His word recognition scores in the right and left ear were 40 and 66 percent, respectively. At the December 2018 VA examination, his voice recognition score in the right ear was improved, to 52 percent, but the left ear was worse at 44 percent. The Veteran again provided a detailed explanation of how his hearing loss effects his functioning. He reported that he has more difficulty on the phone and in teleconferencing because these types of communication prevent him from being able to read people’s lips, which helps him distinguish speech. He reported that he needed to be able to have phone and teleconference calls for his job and that mishearing and not understanding words and phrases is embarrassing for himself, costly to his company, and potentially dangerous to him and coworkers on worksites. The Veteran worked as a construction manager, and reported that he could not always hear the warning sounds that heavy construction vehicles make while in reverse, and would sometimes mishear warning shouts. At the April 2019 VA examination, he again reported that he had much difficulty with conversation, especially on the phone and when there is background noise. He again reported that his work required him to be able to hear on a job site, but also in an office environment, which he could not do, and consequently resulted in him stopping work as a construction project manager. The record shows that he stopped working in 2011, and that he has consistently reported the functional difficulty his hearing loss causes him in a work setting, and the different types of situations that cause him trouble. He has consistently reported trouble understanding speech. An April 2019 private treatment provider noted the Veteran would continue to experience significant communication difficulties with speech discrimination even with his hearing aids. A September 2019 VA hearing test shows that his speech discrimination (using the Maryland CNC test, which is used by VA examiners) was 28 and 44 percent in the right and left ear, respectively, which is significantly worse than shown at the May 2017 VA examination or the December 2018 VA examination, and further supports that his speech recognition has not improved. Accordingly, the Board finds that the record does not show that there has been an improvement in the ability to function under the ordinary conditions of life and work. Decisions by the AOJ that do not apply the provisions of 38 C.F.R. § 3.344, when applicable, are void ab initio (i.e., at their inception). Brown, 5 Vet. App. at 413; see also Hayes v. Brown, 9 Vet. App. 67, 73 (1996). Since the rating decision that accomplished the reduction of the Veteran’s service-connected hearing loss did not properly apply the provisions of 38 C.F.R. § 3.344, the reduction is void. The appropriate remedy is to restore the 40 percent rating. Hayes, 9 Vet. App. at 73. 2. A total disability rating due to individual unemployability (TDIU) is granted, effective from November 19, 2018. When any impairment of mind or body sufficiently renders it impossible for the average person to follow a substantially gainful occupation, that impairment will be found to be causing total disability. 38 C.F.R. § 3.340. If the total rating is based on a disability or combination of disabilities for which the Schedule for Rating Disabilities provides an evaluation of less than 100 percent, it must be determined that the service-connected disabilities are sufficient to produce unemployability without regard to advancing age. 38 C.F.R. § 3.341. In evaluating total disability, full consideration must be given to unusual physical or mental effects in individual cases, to peculiar effects of occupational activities, to defects in physical or mental endowment preventing the usual amount of success in overcoming the handicap of disability and to the effects of combinations of disability. 38 C.F.R. § 4.15. If the schedular rating is less than total, a total disability evaluation can be assigned based on individual unemployability if the Veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disability, provided that the Veteran has one service-connected disability rated at 60 percent or higher; or two or more service-connected disabilities, with one disability rated at 40 percent or higher and the combined rating is 70 percent or higher. The existence or degree of nonservice-connected disabilities will be disregarded if the above-stated percentage requirements are met and the evaluator determines that the Veteran’s service-connected disabilities render him incapable of substantial gainful employment. 38 C.F.R. § 4.16(a). For the purpose of one 60 percent disability, disabilities resulting from common etiology or a single accident are considered one. Id. Here, his hearing loss and tinnitus are each due to in-service noise exposure, and combine to 60 percent. The Board finds that his hearing loss and tinnitus can be considered one disability for purposes of meeting the eligibility requirements for a TDIU. The remaining inquiry is whether his hearing loss and tinnitus preclude him from working substantial and gainful work consistent with his previous training and experience. The record shows he worked in construction from 1960 to 2011, and was in his last job approximately 10 years. His training was in subjects such as fire protection and safety, and project management. The record contains a December 2018 report from the Veteran’s previous employer that the Veteran’s hearing loss disability made him ineligible for rehire due to the safety issues at job sites and the inability to meet and communicate with new clients and other project partners. A February 2019 letter from a previous employer indicated that an attempt was made for the Veteran to work from home as an independent contractor, but that he was not able to do business over the phone. The employer expressed regret at the circumstances as the Veteran had a lengthy and exemplary reputation in the construction community. Based on this evidence, the Board finds that his hearing loss and tinnitus have precluded him from obtaining substantial and gainful employment consistent with his past work and experience. His hearing loss makes him a safety liability on construction sites, and prevents him from conducting business both in person and over the phone. There is no evidence that he has any other job skills or relevant experience to move into another line of work that would not require him to be able to consistently communicate with others. His TDIU is warranted from November 19, 2018, the date of receipt of his claim. Nathaniel J. Doan Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Gibson 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.