Citation Nr: 1828859 Decision Date: 05/18/18 Archive Date: 05/23/18 DOCKET NO. 17-10 641A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Newark, New Jersey THE ISSUE Entitlement to a higher initial rating for bilateral hearing loss, rated as 20 percent disabling prior to May 1, 2017, and as noncompensable thereafter, to include whether the reduction from 20 percent to noncompensable, effective May 1, 2017, was proper. REPRESENTATION Appellant represented by: John P. Dorrity, Agent WITNESSES AT HEARING ON APPEAL The Veteran and his Spouse ATTORNEY FOR THE BOARD K. Marenna, Counsel INTRODUCTION The Veteran served on active duty from October 1959 to October 1962. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran and his spouse testified at a Videoconference Hearing in February 2018 before the undersigned Veterans Law Judge. A transcript of the hearing is of record. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012). FINDINGS OF FACT 1. In a February 2017 rating decision, a Decision Review Officer (DRO) reduced the Veteran's rating for his service-connected bilateral hearing loss from 20 to 0 percent (noncompensable) effective May 1, 2017; the overall evidence of record at that time did not show a clear and unmistakable error (CUE) in the November 2014 rating decision or sustained improvement to the extent of demonstrating that the Veteran's hearing loss warranted a 0 percent rating. 2. It is not shown at any time during the appeal period that the Veteran had hearing acuity worse than Level VI in the right ear or worse than Level V in the left ear. CONCLUSIONS OF LAW 1. The decision to reduce the rating for the Veteran's bilateral hearing loss from 20 percent to 0 percent (noncompensable) was not proper; restoration of a 20 percent rating for bilateral hearing loss beginning May 1, 2017 is warranted. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 3.105, 3.344, 4.7, 4.85, DC 6100 (2017). 2. The criteria for a disability rating in excess of 20 percent for bilateral hearing loss have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.7, 4.85, 4.86, Diagnostic Code 6100 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Neither the Veteran nor his agent has raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board"); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). General Criteria Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a layperson. 38 C.F.R. § 3.159(a)(2). Competent medical evidence is necessary where the determinative question requires medical knowledge. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also mean statements conveying sound medical principles found in medical treatises. Competent medical evidence may also include statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, including degree of disability, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. 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). The Board notes that it has reviewed all of the evidence in the Veteran's record with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Hence, the Board will summarize the relevant evidence, as deemed appropriate, and the Board's analysis will focus on what the evidence shows, or does not show, with respect to the claim. Propriety of the Reduction The Veteran was granted service connection for hearing loss in a November 2014 rating decision with an initial rating of 20 percent. He filed a notice of disagreement with the rating assigned in July 2015. In a July 2016 rating decision, a DRO proposed a reduction of the rating to noncompensable based on a finding of CUE in the November 2014 rating decision. The rating was reduced to noncompensable effective May 1, 2017, in a February 2017 DRO decision. The Veteran has asserted that the reduction was not proper, and that he is entitled to a higher rating. As the reduction is part of the Veteran's initial rating claim, the Board has jurisdiction of the issue. By operation of law, a previous rating decision by the RO is binding and will be accepted as correct in the absence of CUE. 38 C.F.R. § 3.104(a), 3.105(a). Generally, CUE is only applicable to final rating decisions. However, a DRO can reverse or revise a prior decision of an Agency of Original Jurisdiction (AOJ), including the decision being reviewed, on the grounds of CUE, if the provisions of § 3.105(e) governing reductions are followed. 38 C.F.R. § 3.2600. Here, as the November 2014 decision was on appeal, it was not a final decision, and the CUE analysis was undertaken pursuant to § 3.2600(e). CUE is a very specific and rare kind of error. It is the kind of error, of fact or of law, that when called to the attention of later reviewers compels the conclusion, to which reasonable minds could not differ, that the result would have been manifestly different but for the error. The Court of Appeals for Veterans Claims (Court) has set forth a three-pronged test to determine whether CUE is present in a prior determination: (1) either the correct facts, as they were known at the time, were not before the adjudicator (more than a simple disagreement as to how the facts were weighed or evaluated) or the statutory or regulatory provisions extant at that time were incorrectly applied; (2) the error must be undebatable and of the sort which, had it not been made, would have manifestly changed the outcome at the time it was made; and (3) a determination that there was CUE must be based on the record and law that existed at the time of the prior adjudication in question. Damrel v. Brown, 6 Vet. App. 242 (1994), Russell v. Principi, 3 Vet. App. 310 (1992). Thus, even where the premise of error is accepted, if it is not absolutely clear that a different result would have ensued, the error complained of cannot be clear and unmistakable. Fugo v. Brown, 6 Vet. App. 40, 43-44 (1993), citing Russell v. Principi, 3 Vet. App. 313 (en banc). Evaluation of the propriety of the rating decision issued in February 2017 requires consideration of two separate standards, the standard relating to CUE and the standard governing reduction of benefits. That is, the reduction on appeal was based on a determination that CUE existed in the November 2014 rating decision. If CUE was not present in the prior decision, then there is no basis for the reduction. If CUE was present in the November 2014 rating decision, because the remedy used to correct such error was reduction, the proper procedures governing reduction must be observed. The Board is required to analyze both questions. Evaluations of bilateral defective hearing range from non-compensable 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 measured by pure tone audiometry tests in the frequencies of 1000, 2000, 3000, and 4000 cycles per second (Hertz). To evaluate the degree of disability from bilateral service-connected defective hearing, the schedule establishes 11 auditory hearing acuity levels designated from Level I for essentially normal hearing acuity through Level XI for profound deafness. 38 C.F.R. §§ 4.85, Tables VI and VII, Diagnostic Codes 6100. Disability ratings for hearing loss are derived from a mechanical application of the rating schedule to the numeric designations resulting from audiometric testing. See Lendenman v. Principi, 3 Vet. App. 345 (1992). An exceptional pattern of hearing impairment occurs when the pure tone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) is 55 decibels or more. In that situation, 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. 38 C.F.R. § 4.86(a). Further, when the average 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. 38 C.F.R. § 4.86(b). Table VIA will be used when the examiner certifies that the use of speech discrimination testing is not appropriate because of language difficulties, inconsistent speech discrimination scores, etc., or when indicated under the provisions of 38 C.F.R. § 4.86. 38 C.F.R. § 4.85(c). The Veteran was granted service connection for hearing loss in a November 2014 rating decision, evaluated as 20 percent disabling. The 20 percent rating was based on a June 2011 VA examination, at which time the Veteran exhibited pure tone thresholds in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 25 30 55 65 60 LEFT 25 25 55 65 60 The average pure tone threshold was 53 (rounded up from 52.5) for the right ear and 51 (rounded down from 51.25) for the left ear. Speech audiometry revealed speech recognition ability of 72 percent in the right ear and of 68 percent in the left ear. The examiner stated "Explanation for the use of only pure tone threshold evaluation in Veteran's audio exam: Speech scores must be interpreted with caution as veteran is [status/post] laryngectomy and slightly depressed scores may be secondary to use of electrolarynx." Later in the report, the VA examiner repeated "Speech scores must be interpreted with caution as Veteran is status post laryngectomy and slightly depressed scores may be secondary to use of electrolarynx," but did not specifically state the scores could not be used. In the November 2014 rating decision, the RO granted a 20 percent rating based on the Veteran's speech discrimination scores and average decibel loss in both ears. In July 2016, following review of the claim, the DRO determined that assigning the 20 percent rating for bilateral hearing loss constituted CUE, as both the speech discrimination scores and average pure tone threshold scores from the June 2011 VA examination were used to determine the level of hearing impairment. If the VA examiner indicates speech discrimination results cannot be used, the evaluation of bilateral hearing loss should be based solely on pure tone thresholds in decibels and Table VIA should be used to determine hearing impairment. See 38 C.F.R. § 4.85(c). Applying the findings from the June 2011 VA examination to Table VIA yields a finding of Level III hearing impairment in both ears. When hearing loss is at Level III in both ears, a 0 percent rating is assigned under Table VII. 38 C.F.R. § 4.85. Also of record at the time of the proposed reduction was a June 2016 VA audiological examination. On the authorized audiological evaluation in June 2016, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 30 30 65 65 65 LEFT 30 35 65 65 55 Average pure tone thresholds were 56 in the right ear and 55 in the left ear. Speech audiometry revealed speech recognition ability of 80 percent in the right ear and of 84 in the left ear. The VA examiner indicated that the use of the word recognition score was appropriate for the Veteran. Applying the results to Table VI, a finding of Level IV hearing impairment is warranted in the right ear, and of Level II in the left ear. When hearing loss is at Level IV in the right ear and Level II in the left ear, a 0 percent rating is assigned under Table VII. 38 C.F.R. § 4.85. After a review of the evidence, the Board finds that the use of speech discrimination scores in the November 2014 rating decision did not rise to the level of CUE. As noted above, for a CUE to exist, the error must be undebatable and of the sort which, had it not been made, would have manifestly changed the outcome at the time it was made. In this case, the Board finds that it is not undebatable that the speech discrimination scores could not be used at all in rating the claim. The Board finds that the VA examination report is vague, although the VA examiner provided an "[e]xplanation for the use of only pure tone threshold evaluation in Veteran's audio exam," the VA examiner did record speech discrimination scores. The VA examiner did not explicitly say only pure tone thresholds could be used. The examiner indicated the scores must be interpreted with caution and indicated that "slightly depressed" scores may be secondary to use of electrolarynx, which does not necessarily indicate the scores could not be used at all. The statement that the scores must be interpreted with caution indicates they could be used. The Veteran's speech discrimination score of 68 in the left ear is also on the low end of the row in table VI for speech discrimination scores of 68 to 74. The Board finds the examination report explanation regarding the speech discrimination scores too ambiguous to support a finding that it was undebatable that the speech discrimination scores should not have been used to evaluate the Veteran's bilateral hearing loss in the November 2014 rating decision. Further, even if there was CUE in the November 2014 rating decision, the Board finds that the proper procedures for implementing the rating reduction were not followed. When 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, and the RO must notify the veteran 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. The veteran is also to be informed that he may request a predetermination hearing, provided that the request is received by VA within 30 days from the date of the notice. If no additional evidence is received within the 60-day period and no hearing is requested, final rating action will be taken and the award will be reduced or discontinued effective the last day of the month in which a 60-day period from the date of notice to the veteran expires. 38 C.F.R. § 3.105(e), (i). As noted above, a July 2016 rating decision proposed to reduce the Veteran's rating based on a CUE in the November 2014 rating decision. The Veteran was sent a letter in July 2016 informing him that they had noted some improvement in his bilateral hearing loss and intended to issue a rating reduction. The letter afforded him 60 days to provide additional evidence contesting the RO's decision and 30 days from the date of the letter for the Veteran to request a hearing. A September 2016 Informal Hearing Conference Report indicates the Veteran requested a postponement of his hearing in lieu of additional time to gather evidence to refute the proposed reduction as well as to bolster his notice of disagreement. The RO agreed to wait an additional 60 days for the evidence or contact from the Veteran. In November 2016, the Veteran submitted an October 2016 private audiogram report. The Veteran did not make another request for a hearing. In February 2017, the RO issued a rating decision implementing the reduction in disability rating from 20 percent to noncompensable effective May 1, 2017. In the February 2017 rating decision, the RO stated that they received and considered the private audiogram from October 2016, but it supported their proposal to assign a 0 percent evaluation for bilateral hearing loss. The Board finds that this is incorrect. While the October 2016 private report does not include the pure tone thresholds in numerical format, but in graphical representation, the Board in its role as a fact finder is able to interpret these graphical representations of audiometric data and convert them to numerical data. The Board can accept and rate based on private audiometric test scores, which were provided in graph form. See Kelly v. Brown, 7 Vet. App. 471, 474 (1995) (noting that, because interpreting results from an audiometric graph involves fact finding, the Court is precluded from engaging in such fact finding in the first instance, and remanding in part because the Board did not discuss the results of the private audiometric testing); 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 2016 private audiometric testing reflects that pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 40 45 55 70 65 LEFT 35 45 70 70 55 The pure tone threshold average in the right ear was 59 (rounded up from 58.75). The average in the left ear was 60. Speech audiometry revealed speech recognition ability of 76 percent in the right ear and of 88 in the left ear. The private examiner noted that Maryland CNC testing was used and the Veteran was instructed to write the words to ensure clarity of his response. Therefore, the Board finds the private audiological report to be adequate for purposes of rating the Veteran's hearing loss under 38 C.F.R. § 4.85. Applying these results to Table VI, warrants a Level IV hearing impairment in the right ear, and a Level III in the left ear. Table VII provides for a disability rating of 10 percent for Level IV and Level III hearing impairment. 38 C.F.R. § 4.85. Therefore, the private audiological report indicates a rating of 10 percent, not 0 percent, was warranted at the time of the February 2017 rating decision. The Board finds that the procedural requirements for the rating reduction were not followed in this case. The RO properly issued a rating decision with a proposed reduction, listing the reason for the reduction, and providing 60 days for the Veteran to present evidence of why the reduction should not be carried out. However, the RO did not properly consider the new evidence submitted by the Veteran indicating that his hearing loss warranted a 10 percent, not a 0 percent rating at the time of the reduction. Therefore, the Board finds that the February 2017 rating decision did not properly implement the reduction. Based on a thorough review of the evidence of record, the Board finds that the reduction of the rating for bilateral hearing loss from 20 percent to 0 percent effective May 1, 2017, was not proper. As discussed above, the June 2011 VA examination report was ambiguous regarding the use of speech discrimination scores, and therefore, using the scores did not rise to the level of CUE. In addition, the evidence at the time of the reduction indicated a rating in excess of 0 percent was warranted. As the reduction was not proper, restoration of the 20 percent rating is granted. Increased Rating The Veteran has asserted that he is entitled to an initial rating in excess of 20 percent for his service-connected bilateral hearing loss. In general, disability evaluations are determined by the application of a schedule of ratings, which is based on the average impairment of earning capacity caused by a given disability. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability more closely approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. In evaluating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991). An appeal from the initial assignment of a disability rating, such as the appeal in this case, requires consideration of the entire time period involved, and contemplates staged ratings where warranted. See Fenderson v. West, 12 Vet. App. 119 (1999). As discussed above, disability ratings for hearing loss are derived by a mechanical application of the rating schedule to the numeric designations assigned after audiometric evaluations are performed. See Lendenmann, 3 Vet. App. at 349. Hearing loss disability ratings range from noncompensable to 100 percent based on organic impairment of hearing acuity, as measured by controlled speech discrimination tests in conjunction with the average hearing threshold, as measured by pure tone audiometric tests in the frequencies 1,000, 2,000, 3,000 and 4,000 cycles per second. During the appeal period, the Board finds that a rating in excess of 20 percent for bilateral hearing loss is not warranted. As discussed above, the June 2011 VA audiological examination report indicates the Veteran met the criteria for either a noncompensable rating or 20 percent rating, dependent upon whether speech discrimination scores were considered. The June 2016 VA audiological examination report indicates the criteria for a 0 percent rating were met. The October 2016 private audiological test reflects that the Veteran's bilateral hearing loss met the criteria for a 10 percent rating. VA treatment records indicate the Veteran had audiological examinations in April 2012 and June 2014. The April 2012 VA treatment record indicated the Veteran's hearing was essentially stable since the previous audiological examination. He had normal hearing at 250 to 500 Hertz, sloping to a mild then essentially moderate stable hearing loss thereafter. The June 2014 VA treatment record indicated the Veteran had increased hearing in the right ear at 6000 and 8000 Hertz, which is outside of the criteria used for rating bilateral hearing loss, and otherwise the results were not significantly different from 2012. In a July 2014 statement, the Veteran's wife stated that when she and other family members would speak to the Veteran he would say "what?" and they would have to repeat answers because he did not hear them. She stated the sound on the television has to be very high so that he can hear, but it is too loud for her. As a lay person, the Veteran's wife is competent to report symptoms capable of lay observation, such as observing the Veteran's hearing loss symptoms. The Veteran and his wife also testified that he had trouble hearing at the February 2018 Board hearing. The Board finds their statements to be credible, therefore, they have probative value. The Veteran submitted another private audiological evaluation report dated in February 2018. Pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 40 50 60 65 70 LEFT 40 50 65 65 65 The right ear pure tone threshold average was 61.25 and the left ear pure tone threshold average was 61.25. Speech audiometry revealed speech recognition ability of 64 percent in the right ear and of 80 percent in the left ear. The private audiologist stated that word recognition ability was measured utilizing the Maryland CNC test. The examiner also noted that the Veteran's hearing had remained stable since his last evaluation in October 2016. Applying these results to Table VI, the Veteran had Level VI hearing impairment in the right ear and Level IV hearing impairment in the left ear. Table VII provides for a disability rating of 20 percent for Level VI and Level IV hearing impairment. 38 C.F.R. § 4.85. Therefore, the private audiological report indicates a rating of 20 percent, but no higher, is warranted for the Veteran's bilateral hearing loss. A March 2018 VA audiogram report indicates pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 40 45 65 65 75 LEFT 45 45 70 70 70 Speech audiometry was not performed as the Veteran did not have his electrolarynx with him and was unable to communicate verbally. Using Table VIA for hearing impairment based only on pure tone threshold average, the Veteran's right ear pure tone threshold average of 63 (rounded up from 62.5), warrants a Level V hearing impairment. The Veteran's left ear pure tone threshold average of 65 (rounded up from 63.75) warrants a Level V hearing impairment. Applying Level V hearing in both ears to Table VII, a disability rating of 20 percent is warranted. 38 C.F.R. § 4.86. Based on the evidence of record, the Board finds that a rating in excess of 20 percent for the Veteran's bilateral hearing loss disability is not warranted during the appeal period. The audiological tests during the appeal period do not indicate the Veteran's bilateral hearing loss resulted in symptoms warranting more than a 20 percent rating at any point during the appeal period. Accordingly, the Board finds that the preponderance of the evidence is against the claim. Consequently, the benefit-of-the-doubt rule is not applicable, and the claim must be denied. 38 U.S.C. § 5107(b). ORDER Restoration of a 20 percent rating for bilateral hearing loss effective May 1, 2017, is granted. Entitlement to an initial rating in excess of 20 percent for bilateral hearing loss is denied. ______________________________________________ M. SORISIO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs