Citation Nr: 21021035 Decision Date: 04/09/21 Archive Date: 04/09/21 DOCKET NO. 17-22 121 DATE: April 9, 2021 ORDER Partial vacatur of the November 2020 Board of Veterans’ Appeals (Board) decision, addressing the rating for hearing loss is granted, and to this extent only, the Board’s November 2020 decision is vacated. A rating decision dated August 26, 2014, reducing a rating for bilateral hearing loss, from 30 to 10 percent is void ab initio and a rating at 30 percent is restored for the period from May 16, 2012 to the present, subject to the laws and regulations governing the award of monetary benefits is granted. A 100 rating for bilateral hearing loss is granted June 28, 2018, but not earlier, subject to the laws and regulations governing the award of monetary benefits. A rating in excess of 30 percent for bilateral hearing loss prior to June 28, 2018 is denied. FINDINGS OF FACT 1. In a November 2020 decision, the Board denied, in part, a rating in excess of 10 percent for the bilateral hearing loss disability for the period from April 2, 2014 to June 28, 2018, and in excess of 30 percent therefrom. 2. Reconsideration of the November 2020 Board decision is warranted only with respect to the denial of a rating in excess of 10 percent for the bilateral hearing loss disability for the period from April 2, 2014 to June 28, 2018, and in excess of 30 percent therefrom; the Board’s November 2020 decision otherwise is undisturbed. 3. Resolving reasonable doubt in the Veteran’s favor, the evidence of record did not adequately show improvement of the Veteran’s bilateral hearing loss disability at the time of the rating reduction from 30 percent to 10 percent. 4. Prior to June 28, 2018, the Veteran’s hearing loss measured at worst in either ear during the course of the appeal as Level IV. 5. At the hearing test on June 28, 2018, the Veteran’s hearing loss measured Level XI in both ears, and the examiner characterized the speech recognition test as appropriate for rating purposes. CONCLUSIONS OF LAW 1. The criteria for partial vacatur of the November 2020 Board decision with regard to the rating for the Veteran’s bilateral hearing loss have been met. 38 U.S.C. § 7104; 38 C.F.R. § 20.904. 2. The disability rating for bilateral hearing loss disability was improperly reduced from 30 to 10 percent, and the criteria for restoration of a 30 percent evaluation for this disability have been met from May 16, 2012. 38 U.S.C. §§ 1155, 5112; 38 C.F.R. §§ 3.105, 3.344. 3. The criteria for a total rating for bilateral hearing loss were met as of June 28, 2018, but rating in excess of 30 percent for bilateral hearing loss prior to June 2018 have not been met. 38 U.S.C. §§ 1155; 38 C.F.R. §§ 3.102, 4.1, 4.10, 3.321(b)(1), 4.85, 4.86, Diagnostic Code 6100. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the Unites States Marine Corps from February 1956 to June 1983. These matters come before the Board of Veterans’ Appeals (Board) on appeal from an August 2014 rating decision by a Department of Veterans Affairs (VA) RO. By that rating action, the RO reduced the service-connected hypertension with kidney disease from 80 to 60 percent; unspecified trauma and stressor related disorder (formerly diagnosed as PTSD) PTSD from 70 to 30 percent; and, bilateral hearing loss from 30 to 10 percent. In a November 2020 decision, the Board restored the ratings of 80 percent for the hypertension with kidney disease; 70 percent rating for an unspecified trauma and stressor related disorder (formerly diagnosed as PTSD); and, 30 percent for bilateral hearing loss for the period from May 16, 2012. The Board also denied a rating in excess of 80 percent for hypertension with renal dysfunction; denied a rating in excess of 70 percent for an unspecified trauma and stressor-related disorder (formerly diagnosed as unspecified trauma and stressor related disorder (formerly diagnosed as PTSD); and, denied a rating in excess of 10 percent for the bilateral hearing loss disability for the period from April 2, 2014 to June 28, 2018, and in excess of 30 percent therefrom. For the reasons discussed below, the Board is vacating its decision regarding the evaluation of the rating assigned for the Veteran’s hearing loss disability, on its own initiative, as the wording of the decision was unclear. Vacatur The Board may vacate an appellate decision (in whole or in part) at any time upon request of the appellant or his or her representative, or on the Board’s own motion, when an appellant has been denied due process of law or when benefits were allowed based on false or fraudulent evidence. 38 U.S.C. § 7104 (a); 38 C.F.R. § 20.904. On its own motion, the Board vacates the November 2020 decision as it pertains to the issue of a rating in excess of 10 percent for the bilateral hearing loss disability for the period from April 2, 2014 to June 28, 2018, and in excess of 30 percent therefrom. In its November 2020 decision, the Board issued the following conflicting findings: (i) A rating decision dated August 26, 2014, reducing a rating for bilateral hearing loss, from 30 to 10 percent is void ab initio and a rating at 30 percent is restored for the period from May 16, 2012 to the present, subject to the laws and regulations governing the award of monetary benefits is granted; and, (ii) A rating in excess of 10 percent for the bilateral hearing loss disability for the period from April 2, 2014 to June 28, 2018, and in excess of 30 percent therefrom is denied. Accordingly, and to this extent only, the Board’s November 2020 decision denying a rating in excess of 10 percent for the bilateral hearing loss disability for the period from April 2, 2014 to June 28, 2018, and in excess of 30 percent therefrom is vacated. With this narrow exception, the November 2020 Board decision remains undisturbed. Reduction Claim-Bilateral Hearing Loss In this decision, the Board finds that the August 26, 2014 rating decision, wherein the RO reduced the Veteran’s bilateral hearing loss from 30 to 10 percent, is void ab initio and will restore the 30 percent rating, effective May 16, 2012. The Veteran filed a claim seeking increased compensation for his bilateral hearing loss that was received in January 2014. In an August 2014 rating acton, following VA examinations, conducted in April 2014, the RO reduced the Veteran’s bilateral hearing loss from 30 to 10 percent, based on a determination that the Veteran did not meet the schedular criteria for the higher rating for this disability. In an August 2014 letter, the RO notified the Veteran that it had reduced his rating for the service-connected bilateral hearing loss to 10 percent. The RO indicated that because the reduction did not adversely affect the Veteran’s overall combined evaluation, due process was not required. See 38 C.F.R. § 3.105. Here, the issue is whether the RO’s reduction in the Veteran’s disability rating for his service-connected bilateral hearing loss from 30 percent to 10 percent was legally proper. As will be discussed below, the Board finds that the RO’s reduction of the Veteran’s service-connected bilateral hearing loss to 10 percent was not proper and is, therefore, void ab initio. As such, a 30 percent rating for bilateral hearing loss is restored, effective May 16, 2012. To properly reduce a disability rating requires VA to meet both procedural and substantive requirements. Procedurally, when a reduction in the rating of a service-connected disability or employability status is contemplated and the lower rating would result in a reduction or discontinuance of compensation payments, a rating proposing the reduction or discontinuance will be prepared setting forth all material facts and reasons. The beneficiary must be notified at his or her last address of record of the contemplated action and furnished detailed reasons therefor. The beneficiary must be given 60 days for presentation of additional evidence to show that compensation payments should be continued at the present level. 38 C.F.R. § 3.105 (e). In this case, the Board finds, and as noted by the RO in the appealed August 2014 rating action, that the reduction did not adversely affect the Veteran’s overall combined evaluation, thus, due process was not required in accordance with 38 C.F.R. §.3.105(e). As there was no procedural error in the reduction of the disability rating for the service-connected bilateral hearing loss, the Board now will consider whether the reduction was legally and factually appropriate. The United States Court of Appeals for Veterans Claims (Court) has consistently held that when a disability rating is reduced without following the applicable regulations, the reduction is void ab initio. Greyzck, v. West, 12 Vet. App. 288, 292 (1999). Under 38 C.F.R. § 3.344 (a) and (b), VA must find the following before reducing a rating: (1) based on a review of the entire record, the examination forming the basis for the reduction is full and complete, and at least as full and complete as the examination upon which the rating was originally based; (2) the record clearly reflects a finding of material improvement; and, (3) it is reasonably certain that the material improvement found will be maintained under the ordinary conditions of life. Kitchens v. Brown, 7 Vet. App. 320 (1995). Where a rating reduction was made without observance of law, the reduction must be vacated, and the prior rating restored. Schafrath v. Derwinski, 1 Vet. App. 589, 595-96 (1991). In considering the propriety of a reduction, the Board must focus on the evidence available to the RO at the time the reduction was effectuated (although post-reduction medical evidence may be considered in the context of considering whether actual improvement was demonstrated). Dofflemyer v. Derwinski, 2 Vet. App. 277, 28182 (1992). The Veteran need not demonstrate entitlement to retain the higher evaluation; rather, it must be shown by a preponderance of the evidence that the Agency of Original Jurisdiction’s (AOJ) reduction was warranted. Kitchens, 7 Vet. App. 320 (1995). In certain rating reduction cases, VA benefits recipients are to be afforded greater protections, set forth in 38 C.F.R. § 3.344 (a) and (b). These provisions provide that rating agencies will handle cases affected by change of medical findings so as to produce the greatest degree of stability of disability evaluations consistent with the laws and VA regulations governing disability compensation and pension. The provisions of 38 C.F.R. § 3.344 (c) specify that these considerations are required for ratings that have continued for long periods at the same level (five years or more), and that they do not apply to disabilities which have not become stabilized and are likely to improve. Reexaminations disclosing improvement in these disabilities will warrant a reduction in rating. The United States Court of Appeals for Veterans Claims (Court) stated in Lehman v. Derwinski, 1 Vet. App. 339 (1991) that use of parentheses suggests that the five-year time frame is merely a guideline, not a mandate; and that the regulation is devoid of any language which could be construed as intended to establish an inflexible mandatory minimum time period. In addition, although the regulatory requirements under 38 C.F.R. § 3.344 (a) and (b) apply only to reductions of ratings that have continued for long periods at the same level, the Court has held that several general regulations are applicable to all rating reduction cases, regardless of whether the rating at issue has been in effect for five or more years. The Brown case articulated three questions that must be addressed in determining whether a rating reduction was warranted by the evidence. First, a rating reduction case requires ascertaining “whether the evidence reflects an actual change in the disability.” Second, it must be determined whether the examination reports reflecting such change were based upon thorough examinations. Third, 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. Upon review of the evidence of record, the Board finds that the reduction of the service-connected bilateral hearing loss from 30 to 10 percent was not proper. The RO’s August 2014 rating decision reflects that the RO analyzed the issue of reduction of the 30 percent evaluation assigned to the service-connected bilateral hearing loss just as it would a claim for an increased rating. Specifically, the RO failed to discuss the provisions of 38 C.F.R. §§ 3.105 or 3.344 in its analysis. Of particular note, at no time did its analysis address the entire recorded history or discuss the issue of whether the medical evidence reflected “an actual improvement in the Veteran’s ability to function under the ordinary conditions of life and work.” Id.; Brown. In the August 2014 rating decision, the RO merely discussed the rating criteria needed for a higher rating for bilateral hearing loss. In summary, it does not appear that the RO’s rating reduction was, at a minimum, following the general provisions in 38 C.F.R. § 3.344 and/or Brown. The Court has stated that decisions by the RO and by the Board that do not apply the provisions of 38 C.F.R. § 3.344, when applicable, are void ab initio (i.e., at their inception). Lehman v. Derwinski, 1 Vet. App. 339 (1991). In sum, the RO failed to address the entire recorded history and an improvement in the Veteran’s service-connected bilateral hearing loss under the ordinary conditions of his life and work. The rating decision that accomplished the reduction of 30 percent evaluation for the Veteran’s service-connected bilateral hearing loss, did not properly apply the general provisions of 38 C.F.R. § 3.344 or considerations in Brown, and for that reason the Board finds that the reduction is void. As such, the appropriate remedy in this case is a restoration of the 30 percent rating for the bilateral hearing loss, effective the date of the reduction, May 16, 2012. See Hayes, 9 Vet. App. at 73. II. Increased Rating Claim-Bilateral Hearing Loss Pursuant to the Board’s decision herein, a 30 percent rating has been restored to the service-connected bilateral hearing loss for the period from May 16, 2012, under Diagnostic Code 6100. Thus, the question that remains is whether a rating in excess of 30 percent should be assigned for the Veteran’s bilateral hearing loss. VA received the Veteran’s claim for increased compensation for the service-connected bilateral hearing loss on January 31, 2014. Under the applicable criteria, ratings for hearing loss are determined in accordance with the findings obtained on audiometric evaluations. Ratings for hearing impairment range from noncompensable to 100 percent based on organic impairment of hearing acuity as measured by the results of controlled speech discrimination tests, together with the average hearing threshold level as measured by pure tone audiometry tests in the frequencies 1,000, 2,000, 3,000, and 4,000 cycles per second. To evaluate the degree of disability from hearing impairment, the rating schedule establishes eleven auditory acuity levels designated from Level I for essentially normal acuity through Level XI for profound deafness. 38 C.F.R. § 4.85, Diagnostic Code 6100. Hearing tests will be conducted without hearing aids, and the results of above-described testing are charted on Table VI and Table VII. See 38 C.F.R. § 4.85. Exceptional patterns of hearing impairment are evaluated under 38 C.F.R. § 4.86. (a) When the pure tone 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. (b) When the pure tone 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. Each ear will be evaluated separately. As noted above, under VA rating criteria, an adequate evaluation of impairment of hearing acuity rests upon the results of controlled speech discrimination tests, together with tests of the average hearing threshold levels at certain specified frequencies. See 38 C.F.R. § 4.85, Diagnostic Code 6100. Table VIa, “Numeric Designation of Hearing Impairment Based Only on Puretone Threshold Average,” is used to determine a Roman numeral designation (I through XI) for hearing impairment based only on the puretone threshold average. However, Table VIa will be used when the examiner certifies that use of the speech discrimination test is not appropriate because of language difficulties, inconsistent speech discrimination scores, etc., or when indicated under the provisions of § 4.86. Pertinent case law provides that the assignment of disability ratings for hearing impairment is to be derived by the mechanical application of the Ratings Schedule to the numeric designations assigned after audiometry evaluations are rendered. Lendenmann v. Principi, 3 Vet. App. 345 (1992). Turning to the evidence, the Veteran has undergone two hearing tests during the course of the appeal. One on April 2, 2014, and the second on June 28, 2018. The results of the tests are described below. An April 2, 2014 audiological evaluation that revealed bilateral high frequency sensorineural hearing loss. On audiometric testing, pure tone thresholds, in decibels, and speech recognition scores were reported as follows: HERTZ CNC 1000 2000 3000 4000 Avg % RIGHT 40 45 70 75 58 80 LEFT 45 55 75 80 64 84 With regard to a schedular rating, when applying the method for evaluating hearing loss to the results of the Veteran’s audiological evaluations, the April 2014 audiometric evaluation revealed Level II and Level VI hearing acuity in the right and left ears, respectively, based on application of the reported findings to Table VI. Application of these findings to Table VII corresponds to an initial 10 percent disability rating under 38 C.F.R. § 4.85, Diagnostic Code 6100. In addition, as the April 2014 VA audiological evaluation does not reflect that the Veteran had 55 decibels or more in all pure tone thresholds of either ear from 1000-4000 Hertz, or 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hertz, exceptional hearing impairment has not been demonstrated in the either ear during any of these evaluations and, thus, 38 C.F.R. § 4.86 is not for application. The Board has considered the Veteran’s lay statements and reports of hearing loss for this period on appeal. Notably, in Martinak v. Nicholson, 21 Vet. App. 447, 455 (2007), it was the holding of the Court that in addition to dictating objective test results, a VA audiologist must fully describe the functional effects caused by a hearing disability in his or her final report. In this regard, it was noted during the Veteran’s VA audiological evaluation that he had significant communication difficulty. Accordingly, a rating in excess of 30 percent is not shown prior to the June 28, 2018 VA examination. The June 28, 2018 audiological evaluation revealed significant bilateral high frequency sensorineural hearing loss. On audiometric testing, pure tone thresholds, in decibels, and speech recognition scores were reported as follows: HERTZ CNC 1000 2000 3000 4000 Avg % RIGHT 55 75 80 85 74 24 LEFT 60 75 80 90 76 24 The June 2018 VA audiometric evaluation revealed Level XI hearing acuity in the right and left ears, respectively, based on application of the reported findings to Table VI. Application of these findings to Table VII corresponds to a 100 percent disability rating under 38 C.F.R. § 4.85, Diagnostic Code 6100. It is noted that the examiner stated that the Veteran was confused by the carrier phrase of the recorded test and would not respond. However, the examiner indicated that to address this, word recognition testing had to be done monitored live voice without the carrier phrase. Nevertheless, the examiner indicated that the word recognition score was appropriate for the Veteran. The examiner had the option to select a box indicating that the use of the speech discrimination score was not appropriate for this Veteran, but she declined. As such, the Board finds that there is not a basis to ignore the results of the VA examination. This examination shows that the hearing loss should be rated at Level XI in both ears which equates to a 100 percent rating. Accordingly, a 100 percent rating is granted as of the date of the June 28, 2018 VA examination. MATTHEW W. BLACKWELDER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Carole Kammel, 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.