Citation Nr: 18160648
Decision Date: 12/27/18	Archive Date: 12/27/18

DOCKET NO. 16-15 722A
DATE:	December 27, 2018
ORDER
A 40 percent rating for service-connected bilateral hearing loss is restored, effective June 1, 2015.
FINDING OF FACT
1. In a September 2014 rating decision, the RO proposed to reduce the Veteran's disability rating for bilateral hearing loss from 40 percent to noncompensable (zero percent). The RO promulgated that proposed reduction in a March 2015 rating decision which reduced the Veteran's disability rating for bilateral hearing loss from 40 percent to noncompensable, effective June 1, 2015.

2. At the time of the reduction, the 40 percent rating for bilateral hearing loss had been in effect for less than five years.

3. At the time of the March 2015 rating decision that reduced the rating for bilateral hearing loss, an improvement in the Veteran's bilateral hearing loss that resulted in an improvement in his ability to function under ordinary conditions of life and work had not been shown. 
CONCLUSION OF LAW
The criteria for a restoration of a 40 percent disability rating for bilateral hearing loss have been met. 38 U.S.C. §§ 1155, 5107, 5112 (West 2012); 38 C.F.R. §§ 3.102, 3.105(e) & (i), 3.344, 4.1 - 4.15, 4.85, Diagnostic Code 6100 (2017).
REASONS AND BASES FOR FINDING AND CONCLUSION
The Veteran served on active duty in the U.S. Navy from March 1969 to April 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a Department of Veterans Affairs (VA) Regional Office (RO) rating decision in March 2015. The Veteran perfected an appeal. See May 2015 Notice of Disagreement (NOD); February 2016 Statement of the Case (SOC); March 2016 VA Form-9.
1. Propriety of Rating Reduction
The Veteran contends the rating reduction for his service-connected bilateral hearing loss was improper.
By way of history, in a November 2011 rating decision, the RO granted entitlement to service connection for bilateral hearing loss and assigned an evaluation of 40 percent from July 28, 2010. An August 2013 rating decision continued the 40 percent evaluation. In a September 2014 rating decision, the RO proposed reducing the Veteran’s disability rating. In a March 2015 rating decision, the RO reduced the Veteran’s rating to noncompensable, effective from June 1, 2015. 
A rating reduction is the result of a course of action taken by VA, and not a claim by the Veteran. When the propriety of a rating reduction is at issue, the focus is on the actions of the RO in effectuating the reduction, both in terms of compliance with the special due process considerations applicable to reductions, and in terms of whether the evidence at the time of the decision reducing the evaluation supported the reduction. In most cases, violations of the set of due process considerations applicable to rating reductions, or failure of the evidence to meet the standards for reducing an evaluation, render the underlying reduction void ab initio, rather than merely voidable. The burden is on VA to justify a reduction in a rating. See Brown v. Brown, 5 Vet. App. 413 (1993) (finding that the Board is required to establish, by a preponderance of the evidence and in compliance with 38 C.F.R. § 3.344, that a rating reduction is warranted).

There are specific procedural requirements applicable to rating reductions. If a reduction in the evaluation is considered warranted and the lower evaluation would result in a reduction or discontinuance of the compensation payments currently being made, the RO must issue a rating proposing the reduction and setting forth all material facts and reasons. 38 C.F.R. § 3.105 (e) (2017). The RO must notify the beneficiary that he or she will be given 60 days to present evidence to show that compensation payments should be continued at the present level. Id. Additionally, the beneficiary must be notified as to the right to a predetermination hearing. 38 C.F.R. § 3.105 (i) (2017). Furthermore, the effective date of the reduction will be the last day of the month in which a 60-day period from the date of notice to the beneficiary of the final rating action expires. 38 C.F.R. § 3.105 (e).
In this case, reduction notification procedures were required as the March 2015 rating decision that implemented the rating reductions changed the Veteran's overall disability rating, which was reduced from 70 percent to 60 percent. The special procedural requirements outlined in 38 C.F.R. § 3.105 (e) and (i) were therefore applicable in this case.

The record shows that the Veteran was notified of the proposed rating reductions in a September 2014 rating decision and notice. The September 2014 rating decision set forth all material facts and reasons for the proposed rating reductions and properly notified the Veteran of the 60-day period to provide additional evidence. 38 C.F.R. § 3.105 (e). In addition, the September 2014 notice properly notified the Veteran of the 60-day period to provide evidence, how to obtain a personal hearing in accordance with 38 C.F.R. § 3.105 (i), and what evidence he could submit. Thus, the Board finds that VA has satisfied the specific procedural requirements applicable to the Veteran's rating reductions. Therefore, the remaining question is the propriety of the reduction.
Substantively, a rating cannot be reduced unless improvement is shown to have occurred. 38 U.S.C. § 1155; Greyzck v. West, 12 Vet. App. 288 (1999). VA regulation 38 C.F.R. § 3.344 addresses stabilization of disability ratings. Provisions at 38 C.F.R. §§ 3.344 (a) and (b) require special scrutiny and care in reducing a rating that has continued at the same level for five years or more. See Brown v. Brown, 5 Vet. App. 413 (1993). The provisions of 38 C.F.R. §§ 3.344 (a) and (b) do not apply to disabilities that have not become stabilized and that are likely to improve. 38 C.F.R. § 3.344 (c).
In this case, the 40 percent rating was in effect from July 28, 2010 to May 31, 2015. Therefore, the provisions of 38 C.F.R. § 3.344, pertaining to stabilization of disability ratings do not apply and reexamination disclosing improvement will warrant a rating reduction. 38 C.F.R. § 3.344 (c). 

Nevertheless, the Court noted in Brown that there are several general VA regulations that apply to all rating reductions, regardless of whether the rating has been in effect for five years or more. Brown v. Brown, 4 Vet. App. 413 (1993). Specifically, the evidence must reflect an actual change in the Veteran's condition and not merely a difference in the thoroughness of the examination or in the use of descriptive terms. 38 C.F.R. § 4.13 (2017). The evidence must show that the improvement in the disability actually reflects an improvement in the Veteran's ability to function under the ordinary conditions of life and work. 38 C.F.R. §§ 4.2 4.10 (2017). Furthermore, rating reduction cases must be based upon a review of the entire history of the Veteran's disability. 38 C.F.R. §§ 4.1, 4.2; Brown, 4 Vet. App. at 420-421. In addressing whether improvement is shown, the comparison point generally is the last examination on which the rating at issue was assigned or continued. See Hohol v. Derwinski, 2 Vet. App. 169 (1992). The determination in a reduction in rating case must include the proper application as to the standard of proof. To warrant reduction in rating, it must be shown that the preponderance of the evidence supports the reduction itself, and with application of the benefit-of-the-doubt doctrine under 38 U.S.C. § 5107 (b) as required. See Brown v. Brown, 5 Vet. App. 413, 420 (1993); Peyton v. Derwinski, 1 Vet. App. 292, 286.

In determining whether a reduction was proper, the Board must focus upon evidence available to the RO at the time the reduction was effectuated, although post-reduction medical evidence may be considered in the context of evaluating whether the condition had actually improved. Cf. Dofflemyer v. Derwinski, 2 Vet. App. 277, 280 (1992). However, post-reduction evidence may not be used to justify an improper reduction. The burden is on VA to justify a reduction in a rating. See Brown, 5 Vet. App. 413 (Board is required to establish, by a preponderance of the evidence and in compliance with 38 C.F.R. § 3.344, that a rating reduction is warranted).

The Board notes that the assignment of disability evaluations for hearing impairment is a purely mechanical application of the rating criteria from which the Board cannot deviate. Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992); see also Massey v. Brown, 7 Vet. App. 204, 208 (1994) (finding the Board may only consider the specific factors as are enumerated in the applicable rating criteria).

Hearing loss ratings range from noncompensable to 100 percent based on organic impairment of hearing acuity, as measured by controlled speech discrimination tests in conjunction with average hearing thresholds determined by pure tone audiometric testing at frequencies of 1000, 2000, 3000, and 4000 cycles per second. "Pure tone threshold average" is the sum of the pure tone thresholds at 1000, 2000, 3000, and 4000 Hertz divided by four. This average is used in all cases to determine the Roman numeral designation for hearing impairment from Table VI or Table VIa. 38 C.F.R. § 4.85, Diagnostic Code 6100 (2017). 
The rating schedule establishes eleven auditory acuity levels, designated from Level I for essentially normal hearing acuity, through Level XI for profound deafness. 38 C.F.R. § 4.85. The horizontal rows in Table VI (in 38 C.F.R. § 4.85) represent nine categories of the percentage of discrimination based on the controlled speech discrimination test. The vertical columns in Table VI represent nine categories of decibel loss based on the pure tone audiometry test. The Roman numeral designation is located at the point where the percentage of speech discrimination and pure tone threshold average intersect. See 38 C.F.R. §§ 4.85, 4.86 (2017).

The regulations also provide that in cases of exceptional hearing loss, i.e. when the pure tone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) is 55 decibels or more, the Roman numeral designation will be determined for hearing impairment, separately, from either Table VI or Table VIa, whichever results in the higher numeral. 38 C.F.R. § 4.86 (2017). A Roman numeral designation will also be determined from either Table VI or Table VIa, whichever results in the higher numeral, when the pure tone threshold is 30 decibels or less at 1000 Hertz, and 70 decibels or more at 2000 Hertz. That numeral will then be elevated to the next higher Roman numeral.
In addition to dictating objective test results, a VA audiologist must fully describe the functional effects caused by a hearing disability in the final report. See Martinak v. Nicholson, 21 Vet. App. 447 (2007).  
Turning to the evidence, the Veteran was afforded a VA audiological examination in September 2011. The Veteran reported difficulty understanding speech in all situations. He reported that he could not understand speech unless the speaker was very loud, and he relied heavily on lip-reading. The Veteran’s Maryland CNC test scores were 68 percent in the right ear and 64 percent in the left ear. The Veteran’s puretone thresholds, in decibels, were as follows: 
 	 	 	HERTZ	 	 
 	1000	2000	3000	4000	Average
RIGHT	85 	85 	 85	90 	 86.25
LEFT	70 	 75	 75	 70	72.5 

Applying the results to Table VI, the findings yield a numeric designation of Level VII in the right ear and Level VII in the left ear. Entering the resulting bilateral numeric designation of Level VII for the right ear and Level VII for the left ear to 38 C.F.R. § 4.85, Table VII, equates to a 40 percent disability rating under Diagnostic Code 6100. An exceptional pattern of hearing impairment under 38 C.F.R. § 4.86 was shown bilaterally. Applying the results to Table VIa, the findings yield a numeric designation of Level VIII for the right ear and Level VI for the left ear. Entering the resulting bilateral numeric designation of Level VIII for the right ear and Level VI for the left ear to 38 C.F.R. § 4.85, Table VII, equates to a 40 percent disability rating under Diagnostic Code 6100. Here, both Table VI and Table VIa yield a 40 percent rating.

The Veteran was afforded another VA audiological examination in July 2012. The Veteran's Maryland CNC test scores were 98 percent in the right ear and 96 percent in the left ear. The Veteran's puretone thresholds, in decibels, were as follows:
 	 	 	HERTZ	 	 
 	1000	2000	3000	4000	Average
RIGHT	20	25 	 30	30 	 26
LEFT	20 	25	 30	25	  25 

Applying the results to Table VI, the findings yield a numeric designation of Level I in the right ear and Level I in the left ear. Entering the resulting bilateral numeric designation of Level I for the right ear and Level I for the left ear to 38 C.F.R. § 4.85, Table VII, equates to a noncompensable disability rating under Diagnostic Code 6100.
Significantly, the Board notes that the July 2012 VA examiner indicated that no records had been reviewed in connection with evaluation of the Veteran. Further, the examiner reported that the Veteran’s hearing loss did not impact ordinary conditions daily life, including the ability to work. However, the examination report made no mention of the Veteran’s report of the functional impact of his hearing loss. 
In an August 2013 rating decision, the RO noted the results of the July 2012 VA examination, but determined that although recent evidence showed some improvement in the condition, sustained improvement had not been definitively established. Thus, the evaluation of bilateral hearing loss was continued as 40 percent disabling. See August 2013 Rating Decision. 
The Veteran was afforded another VA audiological examination in September 2014. Puretone thresholds and speech discrimination scores were not provided. The examiner reported that testing was discontinued after multiple attempts at reinstruction due to poor reliability. The examiner noted that the Veteran demonstrated good communication ability during conversation with a friend in the hallway and during case history, but would not respond to speech testing or puretones until in severe range. It was further noted that thresholds improved slightly upon multiple attempts, but variability remained 25-plus dB upon retest, with half word responses during speech recognition testing. Thus, the examiner indicated that the validity of puretone test results was invalid based upon poor reliability, even upon multiple attempts at reinstruction and retesting. Similarly, she noted that the use of word recognition scores was not appropriate because of language difficulties, cognitive problems, inconsistent word recognition scores, etc., that made combined use of puretone average and word recognition scores inappropriate. In her remarks, the examiner stated that it should be noted that the Veteran’s 40 percent rating for hearing loss was not consistent with results from the July 2012 VA audiogram. See September 2014 VA Examination. 
As noted above, in a September 2014 rating decision and notification letter, the RO proposed to reduce the Veteran’s rating from 40 percent to noncompensable. The RO found that the evidence showed sustained improvement in the Veteran’s service connected bilateral hearing loss. The evidence cited included the July 2012 and September 2014 VA examinations. See September 2014 Rating Decision.  
In an October 2014 correspondence, the Veteran reported that the September 2014 VA examiner repeatedly told him that the report of his hearing evaluation was going to come out inconsistent. The Veteran further expressed his belief that the examiner was coaching him and seemed intent on delivering a false report about his hearing ability. See October 2014 Correspondence.  
In November 2014, the Veteran submitted a patient report from an October 2014 private audiological evaluation performed at Hearing Solutions Centers, Inc., which documented that he had a severe bilateral hearing loss from the low to high pitches. It was noted that this may cause general conversation, loud speech, and some environmental sounds to be very soft or entirely inaudible. It was noted that speech understanding may be particularly troublesome when trying to communicate in the presence of background noise, when the speaker is at a distance, or when the conversation is not face-to-face. The document however, did not contain official audiometric results. See October 2014 Audiological Report from Hearing Solutions Center. 
In March 2015, the Veteran’s bilateral hearing loss disability rating was reduced from 40 percent to noncompensable, effective June 1, 2015. Although the RO acknowledged receipt of the October 2014 patient report from Hearing Solutions Center, Inc., it noted that the document could not be used as evidence for evaluation of the Veteran’s hearing loss because it did not contain official audiometric results. See March 2015 Rating Decision. 
In May 2015, the Veteran submitted a report from Hearing Solutions, Inc. that included the missing audiometric data from his October 2014 patient report. While only the graphic representation of the audiogram was included in the record, with no numeric interpretation provided, the Board, as the finder of fact, can interpret the chart to determine the numeric values of the puretone levels for adjudication purposes. See Kelly v. Brown, 7 Vet. App. 471 (1995) (holding that the Court could not interpret the results of an audiograph because interpretation requires a factual finding, which is not the role of the Court in the first instance, and further indicating that the Board was empowered to make such factual findings in the first instance); see also Savage v. Shinseki, 24 Vet. App. 249 (2011) (noting the Board may interpret results from a private audiometric graph, if it felt it had the expertise, and holding that the Board may not ignore such private audiometric test results that are of record).
The October 2014 audiometric data noted puretone thresholds, in decibels, as follows:
 	 	 	HERTZ	 	 
 	1000	2000	3000	4000	Average
RIGHT	70	65	~65	70	68
LEFT	50	65	~65	70	63

Word recognition scores of 85 percent in the right ear and 80 percent in the left ear were noted, however, speech discrimination testing was not conducted using the Maryland CNC word list as required for VA rating purposes. See October 2014 Hearing Solutions Report and Audiogram. 
The updated report indicated that the Veteran complained of increased difficulty listening to conversations, in background noise, and on the telephone. The Veteran reported that he worked as a dishwasher, and that the noise often made it hard to hear coworkers and supervisors, and was causing difficulty for him. It was noted that the Veteran’s audiological evaluation results were consistent with a severe sensorineural hearing loss bilaterally. It was further noted that word recognition scores indicated that the Veteran had fair (75-85 percent) understanding for words presented at a louder than normal speech level. Id. 
In remarks regarding recommendations for the Veteran, it was noted that hearing loss was affecting his speech understanding. The audiologist reported that his difficulties in noise warranted amplification that would provide some noise control. Without the continuous use of amplification, it was noted, the Veteran could not effectively communicate with anyone. The audiologist noted that the lack of amplification was hindering the Veteran’s ability to communicate with others at his place of work, and it was recommended that he be fit with hearing aids. Id. 
While this examination appears to be inadequate for VA purposes, see 38 C.F.R. § 4.85 (a) ("An examination for hearing impairment for VA purposes must be conducted by a state-licensed audiologist and must include a controlled speech discrimination test (Maryland CNC) and a puretone audiometry test"), the puretone threshold audiometry results themselves are not invalid. Although the puretone thresholds show some improvement from the September 2011 VA examination upon which the Veteran’s original rating was based, they show a worsening in hearing acuity from the July 2012 VA examination. Significantly, the report describes functional impact similar to that recorded on the September 2011 VA examination with respect to the Veteran’s difficulty communicating and understanding speech.
A February 2016 statement of the case noted that although the Veteran had provided a copy of the October 2014 audiological evaluation from Hearing Solutions, the evaluation did not use the Maryland CNC word recognition to evaluate speech discrimination and thus, was not considered sufficient to evaluate hearing loss. See February 2016 Statement of the Case. 
A post-reduction VA hearing loss examination in October 2016 noted that the Veteran’s hearing loss impacted ordinary conditions of daily life including the ability to work. In this regard it was noted that the Veteran reported being issued hearing aids by VA and reported difficulty understanding speech. See October 2016 VA Hearing Loss Examination. 
After resolving all reasonable doubt in favor of the Veteran, the Board finds that the evidence weighs in favor of a restoration of the 40 percent rating because it is not shown that improvement in the Veteran's bilateral hearing loss reflected actual improvement in the Veteran's ability to function under the ordinary conditions of life at the time of the reduction.
The objective test results of the July 2012 VA examination did show improvement in puretone threshold averages and speech recognition in both ears compared to the September 2011 VA examination, upon which the original 40 percent rating was assigned. However, as described above, the July 2012 VA examination failed to discuss the functional effects caused by the Veteran’s hearing disability. See Martinak v. Nicholson, 21 Vet. App. 447, 455 (2007) (VA audiologists conducting hearing examinations are required to fully describe the functional effects caused by a hearing disability because merely dictating objective test results does not adequately describe the effect of a hearing disability on a veteran's occupational functioning and daily activities); cf. Doucette v. Shulkin, 28 Vet. App. 366 (2017) (the ability to hear or understand speech or to hear other sounds in various contexts is contemplated by the schedular rating criteria).
Moreover, the July 2012 VA examiner did not review the Veteran’s claims folder. As previously indicated, the applicable provisions impose a clear requirement that VA rating reductions be based upon a review of the entire history of a Veteran's disability. See Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). Whether the evidence reflects an actual change in disability rather than a temporary fluctuation in symptoms, and whether an improvement in a disability actually reflects an improvement in the Veteran's ability to function under the ordinary conditions of life and work, requires an examination that is informed by a review of the Veteran's medical history. This was not accomplished here. Based on these deficiencies, the Board finds that the July 2012 VA examination was inadequate for rating purposes, and may not be relied upon to support a reduction in the Veteran's disability evaluation.
In any event, as noted above, an August 2013 rating decision determined that, although the July 2012 VA examination showed improvement in hearing acuity, sustained improvement had not been definitively established. Thus, the August 2013 rating decision continued the 40 percent rating. In addressing whether improvement is shown, the comparison point generally is the last examination on which the rating at issue was assigned or continued. See Hohol, supra. 
In this case, although the Board believes that the July 2012 examination was inadequate for rating purposes, the July 2012 examination was the last examination on which the Veteran’s rating was continued. Applying the holding in Hohol, the July 2012 VA examination would be the comparison point for judging whether improvement had been shown. However, as the September 2014 examination produced inconclusive results, there could be no showing of improvement with respect to the July 2012 VA examination or for that matter, the September 2011 VA examination. Further, as the RO previously found that the objective findings on the July 2012 examination were not sufficient to show improvement, the Board cannot discern how such improvement could be shown from the September 2014 examination which produced no independent audiometric data, but relied on the July 2012 audiometric data; data that the RO had already been deemed insufficient for the purposes of demonstrating improvement. 
Lastly, the Board acknowledges that the RO was correct in its finding that the October 2014 private audiological evaluation did not conform to VA regulations, with respect to speech recognition scores. However, the noted puretone thresholds and the reported functional impact of the Veteran’s hearing loss disability, contained therein, are probative and weigh against a finding that any improvement in the Veteran’s bilateral hearing loss reflected actual improvement in the Veteran’s ability to function under the ordinary conditions of life.    
The Veteran has been consistent in his reports that his hearing has not improved. The Veteran is competent to report on his current symptomatology and the Board finds his lay statements credible to the extent that they demonstrated that he continued to have serious impairment due to his hearing loss disability, as opposed to an overall improvement in his ability to function under the ordinary conditions of life and work. See Layno v. Brown, 6 Vet. App. 465, 47 (1994). Thus, at the time of the reduction, the perceived impact of the Veteran's hearing loss had not improved; he continued to have difficulty understanding speech and problems with hearing conversations and in background noise. It is not shown that the disability improved under the ordinary conditions of the Veteran's life. Further, the Board is not satisfied that either the July 2012 or September 2014 VA examinations were adequate for rating purposes and finds that the RO’s reliance on these examinations to reduce the Veteran’s disability rating was misplaced. 
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Based on the foregoing, the Board concludes that there was insufficient evidence to reduce the Veteran’s rating for bilateral hearing loss from 40 percent to noncompensable. Under these circumstances, and granting the Veteran the benefit of doubt, the Board finds that the cumulative evidence does not reflect material improvement in the Veteran's hearing loss disability. Accordingly, the reduction was improper and the 40 percent rating is restored effective June 1, 2015.
 
DEBORAH W. SINGLETON
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	B. Lewis 

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