Citation Nr: 21029673
Decision Date: 05/14/21	Archive Date: 05/14/21

DOCKET NO. 17-17 972
DATE: May 14, 2021

ORDER

The reduction of the rating for the Veteran's bilateral hearing loss from 10 percent to a noncompensable (0 percent) rating from November 1, 2016 was proper, and entitlement to the restoration of the 10 percent rating is denied.

FINDING OF FACT

At the time of the reduction, the preponderance of the evidence shows that there was material improvement in the Veteran's hearing loss, including under the ordinary conditions of work and life.

CONCLUSION OF LAW

The reduction from 10 percent to a noncompensable rating for bilateral hearing loss from November 1, 2016 was proper, and the criteria for restoration of the 10 percent rating are not met. 38 U.S.C. §§ 1155, 5107, 38 C.F.R. §§ 3.105(e), 3.344(b).

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran served in the United States Navy from May 1965 to May 1969, and in the United States Navy Reserve from February 1979 to September 1983, with various periods of active duty for training (ACDUTRA) and inactive duty training (INACDUTRA).

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2016 rating decision of the Department of Veterans Affairs (VA) Agency of Original Jurisdiction (AOJ).

Whether the reduction of the rating for bilateral hearing loss from 10 percent to a noncompensable rating, effective November 1, 2016, was proper

Disability ratings are based on the average impairment of earning capacity resulting from disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria required for that rating. 38 C.F.R. § 4.7. Otherwise, the lower rating will be assigned. Id.

In a claim for a higher original rating after an initial award of service connection, all the evidence submitted in support of the Veteran's claim is to be considered. See Fenderson v. West, 12 Vet. App. 119, 127 (1999). Although the Veteran's entire history is reviewed when assigning a disability evaluation, where service connection has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994), see also 38 C.F.R. § 4.1.

Where a reduction in an evaluation of a service-connected disability is considered warranted and the lower evaluation would result in a reduction or discontinuance of compensation payments currently being made, a rating proposing the reduction or discontinuance must be prepared setting forth all material facts and reasons. In addition, the AOJ must notify the Veteran at his latest address that he has 60 days to present additional evidence showing that compensation should be continued at the present level. 38 C.F.R. § 3.105(e). The procedural framework and safeguards set forth in 38 C.F.R. § 3.105 governing rating reductions are required to be followed by VA before it issues any final rating reduction. See Brown v. Brown, 5 Vet. App. 413, 418 (1993).

With respect to disabilities that are likely to improve (i.e., those in effect for less than five years), re-examinations disclosing improvement in disabilities will warrant a rating reduction. 38 C.F.R. § 3.344(c); see Smith v. Brown, 5 Vet. App. 335 (1993).

In considering the propriety of a reduction, the Board must focus on the evidence of record available to the AOJ at the time the reduction was effectuated, although post-reduction medical evidence may be considered for the limited purpose of determining whether the condition had demonstrated sustained, actual improvement. Dofflemyer v. Derwinski, 2 Vet. App. 277, 281-282 (1992). However, post-reduction evidence may not be used to justify an improper reduction.

The Board is required to establish, by a preponderance of the evidence, that a rating reduction on appeal is warranted. See Kitchens v. Brown, 7 Vet. App. 320, 325 (1995).

Initially, the Board finds that the AOJ satisfied the due process notification requirements under 38 C.F.R. § 3.105(e). A September 2015 rating decision proposed to reduce the rating for bilateral hearing loss. The Veteran was informed of the proposed reduction in a September 2015 letter. The Veteran was given 60 days to present additional evidence and was notified at his address of record. The Veteran did not request a predetermination hearing. The Veteran was informed that the reason the AOJ proposed to reduce his rating from 10 percent to a noncompensable rating was because a review of his medical records indicated that his bilateral hearing loss condition had improved. The final reduction was implemented in a July 2016 rating decision. The effective date of the reduction, November 1, 2016, was effective the first day of the month following the 60-day period from the date of notice to the beneficiary of the final rating action, as set forth in the applicable VA regulation. See 38 C.F.R. § 3.105(e). Thus, all procedural requirements were met.

The Board will now review the July 2016 rating decision that reduced the rating for bilateral hearing loss disability from 10 percent to a noncompensable rating to determine whether the reduction was supported by the evidence.

The 10 percent rating for hearing loss was based on a VA examination in August 2011. The examiner opined that the Veteran's bilateral hearing loss did not impact ordinary conditions of daily life, including the ability to work. The results of the puretone threshold testing were in the right ear at 1000, 2000, 3000, and 4000 Hz of 45, 55, 70, and 60 dB, respectively, for an average over the four frequencies of interest of 58 dB. The results of the puretone threshold testing were in the left ear at 1000, 2000, 3000, and 4000 Hz of 20, 35, 55, and 65 dB, respectively, for an average over the four frequencies of interest of 44 dB. Speech audiometry, using the Maryland CNC word list, revealed speech recognition of 76 percent for the right ear and 80 percent for the left ear. A numeric designation of Level IV is obtained for the right ear, and a numeric designation of Level III is obtained for the left ear. Table VII provides that a 10 percent rating is warranted for numeric designations of Level IV and Level III.

The reduction of the rating for hearing loss was based on a VA examination in August 2015. The examiner opined that the Veteran's bilateral hearing loss impacted ordinary conditions of daily life, including the ability to work. The Veteran reported that he could not hear in background noise. The results of the puretone threshold testing were in the right ear at 1000, 2000, 3000, and 4000 Hz of 55, 70, 70, and 65 dB, respectively, for an average over the four frequencies of interest of 65 dB. The results of the puretone threshold testing were in the left ear at 1000, 2000, 3000, and 4000 Hz of 35, 50, 70, and 70 dB, respectively, for an average over the four frequencies of interest of 56 dB. Speech audiometry, using the Maryland CNC word list, revealed speech recognition of 86 percent for the right ear and 96 percent for the left ear. A numeric designation of Level III is obtained for the right ear, and a numeric designation of Level I is obtained for the left ear. Table VII provides that a noncompensable rating is warranted for numeric designations of Level III and Level I.

In May 2017, the Veteran underwent an audiological evaluation through VA. The treatment provider opined that the Veteran's bilateral hearing loss had an impact on the ordinary conditions of daily life, including the ability to work. The Veteran reported that sometimes he could not hear. The results of the puretone threshold testing were in the right ear at 1000, 2000, 3000, and 4000 Hz of 65, 65, 70 and 70 dB, respectively, for an average over the four frequencies of interest of 68 dB. The results of the puretone threshold testing were in the left ear at 1000, 2000, 3000, and 4000 Hz of 30, 50, 65 and 65 dB, respectively, for an average over the four frequencies of interest of 53 dB. Speech audiometry, using the Maryland CNC word list, revealed speech recognition of 92 percent for the right ear and 92 percent for the left ear. A numeric designation of Level II is obtained for the right ear, and a numeric designation of Level I is obtained for the left ear. Table VII provides that a noncompensable rating is warranted for numeric designations of Level II and Level I.

More recently, the Veteran was afforded a VA examination in June 2019. The examiner opined that the Veteran's bilateral hearing loss did not impact ordinary conditions of daily life, including the ability to work. The results of the puretone threshold testing were in the right ear at 1000, 2000, 3000, and 4000 Hz of 55, 70, 75, and 75 dB, respectively, for an average over the four frequencies of interest of 69 dB. The results of the puretone threshold testing were in the left ear at 1000, 2000, 3000, and 4000 Hz of 35, 50, 70 and 70 dB, respectively, for an average over the four frequencies of interest of 56 dB. Speech audiometry, using the Maryland CNC word list, revealed speech recognition of 88 percent for the right ear and 94 percent for the left ear. A numeric designation of Level III is obtained for the right ear, and a numeric designation of Level I is obtained for the left ear. Table VII provides that a noncompensable rating is warranted for numeric designations of Level III and Level I.

The Board notes that the audiometric thresholds obtained in August 2015 reflect a slightly higher average audiometric thresholds and slightly higher speech discrimination percentages for the right ear and left ear than the August 2011 examination. Further, the May 2017 VA treatment record and July 2019 VA examination also reflect slightly higher average audiometric thresholds and slightly higher speech discrimination percentages for the right and left ear than the August 2011 examination; and support a finding that the Veteran had sustained and actual improvement of his bilateral hearing loss. See Faust v. West, 13 Vet. App. 342 (2000); Brown v. Brown, 5 Vet. App. 413 (1993); Dofflemyer, supra. There are no contrary medical opinions of record.

The July 2019 VA examiner noted that the testing of speech recognition scores from August 2011, August 2015 and May 2017 were likely due to the presenter mode of delivery of speech testing. The examiner noted that the August 2015 and May 2017 speech recognition testing words were presented using calibrated recorded speech while the mode of delivery in August 2011 was noted as being live voice. In addition, instructions in 2015 and 2017 on how to respond to test stimuli varied from the instructions in 2011. The examiner noted that in both 2015 and 2017, the instructions included informing the Veteran that he could guess on the word being presented while in 2011 those instructions were not given.

The examiner noted that slight variations could occur with each session during audiometric testing, but the consistency was within acceptable validation of test data based on hearing thresholds and speech testing; and calibrated recorded speech was used to ensure test and retest variability between different testers because the tester's voice can vary in pitch and volume when using live speech, causing inconsistencies between scores. In addition, the examiner noted that guessing on the correct word presented was normal, as the purpose of the test was to try to determine speech recognition, by trying to mimic a normal conversation. The examiner noted that the test had a carrier phrase with the word when being presented, because it was a common occurrence in communication for the listener to not hear every word in a conversation and having to fill in the word in the context.

As noted, the August 2015 VA examiner and the May 2017 treatment provider opined that the Veteran's bilateral hearing loss impacted the ordinary conditions of daily life, including the ability to work. In addition, the June 2019 VA examiner noted that there was a reported worsening of the Veteran's symptoms. The July 2019 VA examiner opined that the audiometric results from 2015 and the current audiometric examination did not reflect an improvement in the Veteran's ability to function under ordinary conditions of life and work; however, the examiner reported that the evaluation of hearing to include speech recognition was essentially unchanged from the 2015 results, which would indicate the Veteran would still have difficulty communicating in social situations and in a possible work environment based on severity of hearing loss, especially in high frequencies, which provide clarity to speech.

Based on the evidence as outlined above, the Board finds that the evidence of record supports a finding that the Veteran has noncompensable hearing loss throughout the period on appeal.

The Board has considered and relied on the assertions of the Veteran and his representative regarding the severity of the Veteran's bilateral hearing loss in determining whether the reduction of the Veteran's rating was appropriate under the benefit-of-the-doubt doctrine. 38 C.F.R. §§ 4.3, 4.7. The Veteran has testified that his hearing loss had not improved, that he had trouble hearing in background noises and found that he needed to read lips more to understand conversations. See also May 2017 VA treatment record and June 2019 VA examination. In addition, the Veteran and his representative have asserted that the speech discrimination portion of the VA examinations did not accurately reflect his actual experience of being able to hear and understand conversations.

The Veteran is competent to report on factual matters of which he has firsthand knowledge and his statements regarding his symptoms are also credible, and thus, probative. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see also Baldwin v. West, 13 Vet. App. 1 (1999). However, the Veteran and his representative have not discussed particular findings that are necessary to determine whether the Veteran's August 2015 VA examination and the May 2017 VA audiological evaluation were properly conducted, and to determine whether the Veteran's bilateral hearing loss had improved. In this regard, VA regulations are clear as to what specific tests must be conducted to establish a disability rating for hearing loss, how these tests are conducted, and by whom. See 38 C.F.R. § 4.85. Thus, the Board has accorded greater probative weight to the July 2019 VA examination which specifically addressed the adequacy of the August 2015 VA examination and the May 2017 VA audiological evaluation. See Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). The Board does not discount that the Veteran's hearing acuity subjectively may have worsened; however, schedular disability ratings for hearing loss are based on the results of the audiological studies of record. Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992) ("Assignment of 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."). Moreover, the rating criteria for hearing loss contemplate the Veteran's functional effects of decreased hearing as these are the effects that VA's audiometric tests are designed to measure. Doucette v. Shulkin, 28 Vet. App. 377 (2017). The Veteran's main complaint including that of reduced hearing acuity and clarity is what is contemplated in the rating upheld herein. See Rossy v. Shulkin, 29 Vet. App. 142, 145 (2017). The Board notes that the most recent VA examiner has reviewed the pertinent medical evidence of record and has essentially concluded that the 2015 audiological findings upon which the reduction was based are valid and an accurate measure of the Veteran's hearing at that time. Moreover, post-reduction medical evidence, specifically the 2017 and 2019 VA examinations, demonstrate that the improvement shown in the 2015 VA examination was sustained, actual improvement. See Dofflemyer v. Derwinski, supra. Thus, the Board finds that the July 2019 VA examination establishes that the Veteran's VA examination in August 2015 was adequate and conducted in accordance with VA standards for evaluating hearing loss, as found in 38 C.F.R. § 4.85.

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Based upon a preponderance of the evidence, the Board finds that the reduction of the Veteran's rating for bilateral hearing loss from 10 percent to a noncompensable rating from November 1, 2016 was proper, and entitlement to the restoration of the 10 percent rating is denied. 38 U.S.C. § 5107(a); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

 

 

S. L. Kennedy

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	G. Johnson

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.