Citation Nr: 21021674 Decision Date: 04/13/21 Archive Date: 04/13/21 DOCKET NO. 19-12 458 DATE: April 13, 2021 ORDER 1. Entitlement to restoration of a 20 percent rating for bilateral hearing loss from September 30, 2019 is granted. 2. Entitlement to a rating in excess of 20 percent for bilateral hearing loss is denied. FINDINGS OF FACT 1. A July 2019 rating decision reduced the rating for the Veteran’s bilateral hearing loss disability from 20 percent to 10 percent, effective September 30, 2019; the reduction was implemented without the medical evidence showing material improvement in the disability under the ordinary conditions of his life. 2. At no time is the Veteran’s hearing acuity shown to have been worse than Level IV in the right ear or worse than Level V in the left. CONCLUSIONS OF LAW 1. The reduction in the rating for bilateral hearing loss from 20 percent to 10 perfect, effective September 30, 2019, was not proper and is void ab initio; restoration of a 20 percent rating from the date of reduction is warranted. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.105(e), 3.344, 4.85 Diagnostic Code (Code) 6100. 2. An initial rating in excess of 20 percent for bilateral haring loss is not warranted. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.85, 4.86 Code 6100. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The appellant is a Veteran who served on active duty from September 1952 to July 1957. These matters are before the Board of Veterans’ Appeals (Board) on appeal from a March 2017 Department of Veterans Affairs rating decision. In November 2019, the case was remanded for additional development. Entitlement to Increased Ratings (to include Propriety of Rating Reductions) Ratings for hearing loss disability are derived from Table VII of 38 C.F.R. § 4.85 by a mechanical application of the rating schedule to numeric designations assigned after audiometric evaluations are performed. Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). The numeric designations correspond to eleven auditory acuity levels, indicated by Roman numerals, where Level I denotes essentially normal acuity and Level XI denotes profound deafness. The assignment of the appropriate numeric level is based on the results of controlled speech discrimination test (Maryland CNC) in combination with average hearing threshold. The average threshold is obtained from puretone audiometric tests in the frequencies of 1000, 2000, 3000, and 4000 Hertz. 38 C.F.R. § 4.85. Rating specialists use either Table VI or VIA of 38 C.F.R. § 4.85 to determine the correct Roman numeral designation. Table VIA is used when speech discrimination tests are inappropriate due to language difficulties, inconsistent speech discrimination scores, etc., or where there is an exceptional pattern of hearing loss (as defined in 38 C.F.R. § 4.86). One such pattern occurs when the puretone threshold at each of the four specified frequencies is 55 decibels or more. Another occurs when the puretone threshold at 1000 Hertz is 30 decibels or less and the puretone threshold at 2000 Hertz is 70 decibels or more. 38 C.F.R. § 4.86(a)(b). A claim will be denied only if the preponderance of the evidence is against the claim. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). Reasonable doubt regarding the degree of disability should be resolved in favor of the claimant. 38 C.F.R. § 4.3. The Veteran filed a claim for service connection for bilateral hearing loss in September 2016. On February 2017 Hearing Loss and Tinnitus Disability Benefits Questionnaire (DBQ), audiometry revealed that puretone thresholds in decibels were: HERTZ 1000 2000 3000 4000 Avg Maryland CNC Speech Discrimination RIGHT 40 65 70 85 65 88 LEFT 50 60 70 80 65 80 Regarding the functional impact of the hearing loss, the Veteran stated he had difficulty understanding conversation (asking for repetition very frequently) and reported his family’s complaints of his TV volume turned up too high. A March 2017 rating decision granted service connection for bilateral hearing loss rated 20 percent, effective September 15, 2016. The Veteran filed a notice of disagreement (NOD) in April 2017, asking for a rating higher than the 20 percent. A March 2019 rating decision (with a May 2019 notification letter) proposed that the rating for bilateral hearing loss be reduced from 20 to 10 percent; the May 2019 notification letter also advised the Veteran that he had 60 days to submit additional evidence or request an Agency of Original Jurisdiction (AOJ) predetermination hearing. (The AOJ cited to a clear and unmistakable error (CUE) for its reason in the rating reduction.) He did not submit additional evidence and did not request a predetermination hearing before the AOJ. An August 2019 private treatment record (from Precision Hearing & Balance Center) notes an assessment of bilateral sensorineural hearing loss, mild to profound in the right ear and moderate to severe in the left ear. Speech discrimination in silence was judged to be fair in the right ear and good in the left ear. Audiometry revealed that puretone thresholds in decibels were: HERTZ 1000 2000 3000 4000 Avg Maryland CNC Speech Discrimination RIGHT 50 75 90 105 80 N/A LEFT 55 75 75 90 68 N/A A July 2019 rating decision implemented the reduction of the rating from 20 to 10 percent, effective September 30, 2019. On January 2020 DBQ, audiometry revealed that puretone thresholds were: HERTZ 1000 2000 3000 4000 Avg Maryland CNC Speech Discrimination RIGHT 50 65 75 90 70 76 LEFT 55 65 70 80 68 80 Regarding the functional impact of the hearing loss, the Veteran stated he had difficulty understanding conversation (particularly when not face to face with the speaker and in the presence of background noise), which can cause frustration and communication difficulties in social situations. 1. Entitlement to restoration of a 20 percent rating for bilateral hearing loss (from the date of reduction) is granted. Under 38 C.F.R. § 3.103(b)(2), no award of compensation will be reduced unless the beneficiary is notified of such adverse action and has been provided a period of 60 days to submit evidence showing that the adverse action should not be taken. 38 C.F.R. § 3.103(b)(2). As noted above, the RO complied with the specific notice provisions applicable to rating reductions. The critical question, then, becomes whether the reduction in rating was proper based on the evidence of record. Regarding whether the evidentiary requirements for reducing the rating were met, the Board notes that the particular provisions of 38 C.F.R. § 3.344(a) and (b), pertaining to stabilization of disability ratings, do not apply because the 20 percent rating for the bilateral hearing loss disability had not been in effect 5 years or more. Rather, the 20 percent rating was in effect from September 15, 2016 until the reduction was implemented on September 30, 2019. See Brown v. Brown, 5 Vet. App. 413, 418 (1993) (duration of rating is measured from effective date of actual reduction). According to 38 C.F.R. § 3.344(c), in cases where, as here, a rating has been in effect less than 5 years, examinations disclosing sustained improvement in a disability warrant a rating reduction. A rating reduction must be based on improvement in a disability that reflects an improvement in the Veteran’s ability to function under the ordinary conditions of life and work. See Brown, 5 Vet. at 420-21. A rating reduction must also be based on adequate examinations. Tucker v. Derwinski, 2 Vet. App. 201 (1992) (failure of examiner to review claims file rendered reduction decision void ab initio). Further, a rating reduction must be supported by evidence on file at the time of the reduction, although pertinent post-reduction evidence favorable to restoring the rating also must be considered. Dofflemeyer v. Derwinski, 2 Vet. App. 277 (1992). The focus of the reduction question is on whether there was improvement in the Veteran’s bilateral hearing loss disability at the time of reduction proposal in March 2019, and the implementing rating decision in July 2019. Of record at the time of the reduction was a report of the February 2017 DBQ. The Veteran’s hearing loss disability was rated 20 percent under 38 C.F.R. § 4.85, Code 6100. The AOJ cited to CUE as the substantive reason for reduction from 20 to 10 percent (the puretone thresholds on February 2017 DBQ actually warrant a 10 percent rating). (If the rating has been in effect less than 5 years (as is the case here), the AOJ can reduce a rating based on one examination if improvement in the disability is shown, but here, the AOJ mistakenly assigned 20 percent based on the February 2017 VA audiometry). (It was only after the Veteran filed a NOD in April 2017 that the AOJ caught its error in assigning the 20 percent in the March 2017 rating decision.) When the AOJ discovered its error (in March 2019) in assigning the 20 percent, it should have exercised due diligence in scheduling a (re)examination to (re)evaluate the Veteran’s hearing loss condition (to determine whether there was improvement). The AOJ, by merely citing to CUE, did not provide any explanation regarding whether the condition had actually improved. The burden is on VA to prove that the reduction is proper. See Brown v. Brown, 5 Vet. App. 413, 421-22 (1993). Post-reduction evidence (August 2019 private treatment record and January 2020 DBQ) has also been reviewed, and the Board finds that it does not reflect improvement in the Veteran’s hearing loss disability picture or improvement in his ability to function under the ordinary conditions of life and work. In comparison to the February 2017 VA examination, the audiometric findings on the August 2019 private treatment record (inadequate for rating purposes because the Maryland CNC word list was not used) and the January 2020 VA examination appear to show a progressively worsening condition. The audiometric findings on the January 2020 DBQ, in actuality, warrant a 10 percent rating (but the Board still finds it appropriate for the rating to remain at 20 percent because VA has the burden of showing actual improvement). The Board finds that VA did not adhere to all rating reduction due process requirements (specifically the substantive requirements when VA failed to exercise due diligence (prior to rating reduction) in scheduling an examination to determine whether the hearing loss disability had improved). 38 C.F.R. § 3.344(c). The record lacks medical evidence showing material, sustained improvement of the hearing loss disability under the ordinary conditions of life. Neither VA examiners nor the private care provider have specifically found that the Veteran’s hearing loss condition had materially improved when the rating reduction was made. In fact, the evidence suggests the opposite. The reduction in the rating for the hearing loss disability from 20 to 10 percent was improper; the 20 percent rating must be restored effective September 30, 2019. 2. Entitlement to an initial rating in excess of 20 percent for bilateral hearing loss is denied. The Veteran asserts that his hearing acuity has decreased and now warrants a rating in excess of 20 percent. Under governing regulations and the Caselaw cited above, determinations for hearing loss are based on results of audiometric testing. Although the Veteran is competent to observe and report his perception of a decline in hearing acuity, he is not competent to establish the level of severity of his hearing loss disability by his own lay observations. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The August 2019 private treatment record was inadequate for rating purposes because the physician (state-licensed audiologist) did not obtain speech recognition scores using the Maryland CNC word list (not in compliance with 38 C.F.R. § 4.85). The findings on this occasion are not probative evidence in this matter. The only audiometry of record adequate for rating purposes was that on VA audiological evaluations in February 2017 and January 2020. Applying the results of the February 2017 VA examination to Table VI establishes that the Veteran had Level III acuity in the right ear and Level IV in the left. Under Table VII, such hearing acuity warrants a rating of 10 percent. Applying the results of the January 2020 VA examination to Table VI establishes that the Veteran had Level IV in the right ear and Level V in the left. Under Table VII, such hearing acuity warrants a 10 percent rating. (Although his left ear hearing acuity reflected an exceptional pattern of hearing loss (see 38 C.F.R. § 4.86), ratings under Table VI and Table VIA afforded the Veteran the same rating of 10 percent). The VA examiners elicited from the Veteran, and accepted at face value, a description of the functional impact of his hearing loss (difficulty understanding conversation, especially when not face to face with the speaker and in the presence of background noise). Such impairment is contemplated by the 10 percent rating. As the assignment of a disability rating for hearing impairment is derived by mechanical application of the rating schedule to the numeric designations assigned after audiometry evaluations are rendered, there is no doubt as to the proper evaluation to be assigned. Lendenmann, 3 Vet. App. 345 ; 38 C.F.R. § 4.85, Tables VI-VII, Code 6100. The findings on official audiometry on February 2017 and January 2020 VA examinations fall squarely within the parameters for a 10 percent rating. The AOJ has assigned a 20 percent from September 15, 2016 to September 30, 2019. (It is a favorable finding and the Board finds it appropriate for the rating to remain at 20 percent even though the audiometric findings warrant a 10 percent). The AOJ has assigned a 10 percent, effective September 30, 2019. (Audiometric findings only warrant a 10 percent rating (and no higher) for this time period.) Accordingly, an initial rating in excess of 20 percent for bilateral hearing loss is not warranted. [The Board would be remiss if it did not observe that future examinations may yet show sustained improvement.] GEORGE R. SENYK Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Chu, 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.