Citation Nr: 21031360 Decision Date: 05/21/21 Archive Date: 05/21/21 DOCKET NO. 17-42 899 DATE: May 21, 2021 ORDER Entitlement to a restoration of a 40 percent disability rating for bilateral hearing loss, effective June 1, 2017, is granted. FINDING OF FACT An improvement of the Veteran's ability to function under the ordinary conditions of life and work as a result of his service-connected bilateral hearing loss has not been demonstrated. CONCLUSION OF LAW The criteria for entitlement to a restoration of a 40 percent disability rating for bilateral hearing loss is granted, effective June 1, 2017, have been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.105(e), 3.344, 4.1, 4.3, 4.85. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 2004 to February 2005, August 2005 to December 2006, and October 2009 to May 2010. The matter comes before the Board of Veterans' Appeals (Board) on appeal from October 2015 and February 2017 rating decisions issued by a Department of Veterans Affairs (VA) Regional Office (RO). As a matter of procedural history, in October 2015, the RO proposed to reduce the rating of the Veteran's service-connected bilateral hearing loss from 40 percent to noncompensable, effective June 1, 2017. In February 2017, the RO implemented the proposed reduction. In March 2017, the Veteran disagreed with the reduction and his representative listed the issue as "evaluation of bilateral hearing loss is reduced from 40 to 0 percent effective June 1, 2017." See March 2017 Notice of Disagreement (NOD). In July 2017, the RO continued the noncompensable rating for service-connected bilateral hearing loss from June 1, 2017 and the Veteran perfected an appeal to the Board in August 2017. In March 2017, the Board characterized the Veteran's claim as entitlement to a rating in excess of 40 percent for bilateral hearing loss prior to June 1, 2017, and a compensable rating thereafter and remanded the issue for additional development. In March 2020, the Board denied the claim as characterized by the March 2017 remand. The Veteran appealed the Board's denial to the United States Court of Veterans Claims (CAVC), which in an Order implementing a December 2020 Joint Motion for Remand (JMR), vacated and remanded the March 2020 Board decision that denied entitlement to a rating in excess of 40 percent for bilateral hearing loss prior to June 1, 2017, and a compensable rating thereafter. In the December 2020 JMR, the parties agreed that the Board previously mischaracterized and did not adjudicate the right issue on appeal as indicated by the March 2017 NOD. Specifically, the parties agreed that the Board did not discuss the propriety of the rating reduction or identify this as the issue on appeal in the March 2020 decision. As such, the Board has recharacterized the issue on appeal as shown on the title page of this decision and discussed below. Propriety of reduction of disability rating, from 40 percent disabling to noncompensable, for service-connected bilateral hearing loss effective June 1, 2017. Generally, when reduction in the evaluation of a service-connected disability is contemplated and the lower evaluation would result in 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 latest address of record of the contemplated action and furnished detailed reasons for the proposed reduction. The beneficiary must be given 60 days for the presentation of additional evidence to show that compensation payments should be continued at the present level. 38 C.F.R. § 3.105(e). As noted, the RO proposed reduction in the disability rating of the Veteran's bilateral hearing loss from 40 percent disabling to noncompensable in an October 2015 rating decision. Additionally, the RO informed the Veteran he had 60 days to provide additional evidence to show that compensation payments should be continued at the present level and 30 days to request a hearing. See October 2015 Correspondence. As such, the Board finds the procedural protections provided in 38 C.F.R. § 3.105(e) have been satisfied, and the Board turns to the question of whether the rating reduction for the Veteran's bilateral hearing loss disability was proper. Prior to reducing a disability rating, VA is required to comply with several general VA regulations applicable to all rating-reduction cases, regardless of the rating level or the length of time the rating has been effect. 38 C.F.R. §§ 4.1, 4.2, 4.10, 4.13; see also Brown v. Brown, 5 Vet. App. 413, 420 (1993). These provisions impose a clear requirement that VA rating reductions be based upon review of the entire history of the Veteran's disability. See Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). Such review requires VA to ascertain, based upon review of the entire recorded history of the condition, whether the evidence reflects an actual change in the disability and whether the examination reports reflecting such change are based upon thorough examinations. Thus, in any rating-reduction case, not only must it be determined that an improvement in the disability has actually occurred, but also that that improvement actually reflects an improvement in the Veteran's ability to function under the ordinary conditions of life and work. See Faust v. West, 13 Vet. App. 342, 350 (2000). In general, the RO's reduction of a disability rating must have been supported by the evidence on file at the time of the reduction. Pertinent post-reduction evidence favorable to restoring the rating, however, also must be considered. See Dofflemeyer v. Derwinski, 2 Vet. App. 277 (1992). A veteran need not demonstrate that he is entitled to retain the higher evaluation; rather, it must be shown by a preponderance of the evidence that the RO's reduction was warranted. See Brown, 5 Vet. App. at 421. By way of background, the Veteran initially sought a compensable rating for his service-connected bilateral hearing loss in May 2014. The Veteran was afforded VA audiological examinations in September and October 2014. On the September 2014 VA audiological examination, the Veteran's Puretone threshold averages were 62.5 (rounded up to 63) decibels (dB) for the right ear and 86.25 (rounded up to 87) dB for the left ear. See September 2014 VA examination. Speech discrimination was 30 percent for the right ear and 18 percent for the left ear. Id. However, the VA examiner noted the test results were not valid for rating purposes because there were inconsistent responses when thresholds were retested and there was a speech reception threshold/Puretone average mismatch in the right ear. Id. Additionally, the VA examiner noted the Veteran's bilateral hearing loss impacts the ordinary conditions of daily life. Id. Specifically, the Veteran reported that he cannot communicate well. Id. On the October 2014 VA audiological examination, the Veteran's Puretone threshold averages were 38 dB for the right ear and 50 dB for the left ear. See October 2014 VA examination. Speech discrimination was 54 percent for the right ear and 46 percent for the left ear. Id. The VA examiner noted the Veteran's bilateral hearing loss impacts his ordinary conditions of daily life. Id. Specifically, the Veteran reported it was difficult to communicate especially in noise. Id. Based on the results of the October 2014 VA examination, the RO awarded the Veteran an increased rating to 40 percent disabling, effective May 23, 2014, for his service-connected bilateral hearing loss. See November 2014 rating decision. In reducing the Veteran's bilateral hearing loss disability rating in the February 2017 rating decision, the RO relied on an August 2015 VA audiological examination. On the August 2015 VA audiological examination, the Veteran's Puretone threshold averages were 40 dB for the right ear and 55 dB for the left ear. See August 2015 VA examination. Speech discrimination was 90 percent for the right ear and 86 percent for the left ear. Id. Application of 38 C.F.R. § 4.85 results in a finding that a noncompensable, 0 percent, rating is applicable. Additionally, the RO relied on a determination that the increase to 40 percent granted in the November 2014 rating decision was based on the findings of the September 2014 VA examination rather than the October 2014 VA examination. Specifically, the RO noted the September 2014 VA examination results were not valid due to inconsistent responses upon retest. See February 2017 rating decision. However, the Board finds that the evidence of record does not reflect a finding of material improvement, nor is there evidence that the impact of the Veteran's bilateral hearing loss on the ordinary conditions of life or work has improved. In that regard, the August 2015 VA examiner noted the Veteran's bilateral hearing loss impacted his ordinary conditions of daily life, including ability to work. See August 2015 VA examination. Specifically, the Veteran reported that he cannot hear in noisy places consistent with the October 2014 VA examination. Id. The Veteran was afforded VA audiological examinations in November 2017 and December 2019. The November 2017 VA examiner noted the Veteran's Puretone threshold test results were not valid for rating purposes because there was poor reliability/consistency. See November 2017 VA examination. The VA examiner noted there was no response for speech discrimination testing and no speech discrimination scores were provided. Id. As such, the November 2017 VA examination is inadequate for rating purposes. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302 (2008). However, the VA examiner did note the Veteran's bilateral hearing loss impacts his ordinary conditions of daily life. See November 2017 VA examination. Specifically, the Veteran reported he could not hear, and that he has pain in his left ear from the noises in his ear. Id. On the December 2019 VA audiological examination, the Veteran's Puretone threshold averages were 28 dB for the right ear and 39 dB for the left ear. See December 2019 VA examination. Speech discrimination was 88 percent for the right ear and 72 percent for the left ear. Id. Application of 38 C.F.R. § 4.85 results in a finding that a noncompensable disability rating would be warranted. However, the December 2019 VA examiner noted the Veteran's results indicate moderate to severe high frequency hearing loss bilaterally; without appropriate amplification, the Veteran will experience communication difficulties at normal conversational levels, especially in noisy situations; he may also experience difficulty when he is unable to visualize the speaker, such as over the phone or when speaking to someone from a distance; and he may have difficulty hearing in large, reverberant rooms, such as in conference/auditorium type environments. See December 2019 VA examination. Additionally, the Veteran reported he has to ask family to repeat what they say; has a hard time hearing his co-workers; could not hear a forklift backup alarm at work which is a safety hazard; and sometimes cannot hear high pitched tones. Id. Therefore, the December 2019 VA examination demonstrates the Veteran's hearing loss did not improve. The Board finds the December 2019 VA examination is adequate for decision making purposes. See Nieves-Rodriguez, 22 Vet. App. at 302. The Board notes the December 2019 VA examiner also provided a medical opinion indicating that the December 2019 VA examination showed responses consistent with an older examination dated in October 2012. See December 2019 VA medical opinion. The VA examiner also appears to address the October 2014 VA examination, in that he refers to an examination dated May 24, 2014, that showed word recognition scores that were very low when compared to previous examinations, resulting in the 40 percent disability rating. Id. The VA examiner stated that the December 2019 test results were more consistent with the August 2015 VA examination results. Id. The VA examiner noted it was unclear what may have caused the discrepancy in results and that it was "possible" that a malfunction in test equipment or a poor understanding of given instructions could have led to the discrepancy. Id. However, no such malfunction or understanding was noted at the October 2014 VA examination and the Board finds the December 2019 VA examiner's medical opinion speculative as there was no basis for that determination. See Jones v. Shinseki, 23 Vet. App. 382, 390 (2010). The October 2014 VA examiner noted the Puretone threshold testing results were valid for rating purposes and use of speech discrimination scores was appropriate. See October 2014 VA examination. Therefore, the Board finds the October 2014 VA examination was adequate for decision making purposes. See Nieves-Rodriguez, 22 Vet. App. at 302. As such, the Board finds that the December 2019 VA examiner's medical opinion is inadequate to support a finding that a reduction in the Veteran's disability rating for bilateral hearing loss was proper. Moreover, VA treatment records also noted the Veteran's difficulty hearing communications over a radio at work due to his bilateral hearing loss. See August 2015 VA treatment records. Additionally, in August 2016, the Veteran reported worsening hearing loss and that he was fired because of an inability to hear on the radio which was considered a safety hazard. See August 2016 VA treatment records. A VA physician also indicated that hearing aids were recommended for the Veteran. Id. The Board further acknowledges the Veteran provided buddy statements received in February 2017 from his mother and spouse. The Veteran's spouse asserted that she often has to be a mediator because the Veteran has difficulty hearing in public and must travel with either herself or his mother to help him with communicating with others. See February 2017 buddy statement. She noted the Veteran's hearing loss has caused some family altercations because of misunderstandings. Id. The Veteran's mother reiterated the Veteran's difficulty with communicating with others, including in public places. Id. In sum, the Board finds that though the objective findings of the August 2015 VA examination and a mechanical application of those findings to the applicable tables contained in the rating schedule suggest improvement in the Veteran's hearing loss, the Veteran has consistently maintained that the severity of his bilateral hearing loss has impacted the ordinary conditions of his life and work. Notably, the Veteran is competent to report his symptoms of bilateral hearing loss, including difficulties with communication with others in social and work environments, difficulty hearing in noisy places, and the negative impacts of his bilateral hearing loss at work. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). VA examinations consistently corroborated the Veteran's reports of functional impact due to his bilateral hearing loss. Moreover, there is no evidence of record that indicates the October 2014 VA audiological findings, that the RO relied on to award the Veteran an increased 40 percent rating, were inadequate. (Continued on the next page) Under these circumstances, and based on the record as a whole, the Board finds that the rating reduction from 40 percent to noncompensable for the Veteran's bilateral hearing loss was improper, as the competent evidence of record, including lay statements and medical treatment records, does not demonstrate an actual improvement in the Veteran's ability to function under the ordinary conditions of life and work. See Faust, 13 Vet. App. at 350. Therefore, the Board finds that restoration of the 40 percent disability rating for bilateral hearing loss, effective June 1, 2017, the effective date of the rating reduction, is warranted. Tiffany Dawson Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. P. Moore, 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.