HEARING LOSS

NATHANIEL J. DOAN · 2023 · Case ID: A23037125

MIXED

Summary

The veteran, who served from June 1969 to June 1971, appeals a January 2021 rating decision that reduced his disability evaluation for bilateral hearing loss from 50 percent to 40 percent. The veteran contended that the reduction was improper and that his hearing loss warranted a rating higher than 50 percent. The Board reviewed the case under the modernized system, restricting its review to the evidence of record at the time of the decision. The Board found that the reduction in the veteran's disability rating was improper because the agency of original jurisdiction (AOJ) failed to address whether there was an actual improvement in the veteran's ability to function under ordinary conditions of life and work, as required by regulation. The Board noted that the veteran's statements regarding his hearing loss did not significantly differ between the examinations that established the 50 percent rating and the one that led to the reduction, and that the evidence weighed against a finding of improved function. Consequently, the Board found the reduction void ab initio and ordered the 50 percent rating restored. Regarding the claim for a higher rating, the Board reviewed audiometric testing from November 2020, which indicated severe hearing loss in both ears. However, the Board found this testing insufficient to warrant a rating higher than 50 percent, as it did not demonstrate an objective difference from the prior examination or an improvement in function. The Board acknowledged the veteran's belief that his hearing loss had worsened but noted his lack of expertise to competently render such an opinion, emphasizing that objective test results are more persuasive than personal statements for rating purposes. Therefore, the claim for a higher rating was denied.

Rationale

Reduction improper due to failure to address improvement in function; Evidence did not show improvement in ability to function; Reduction void ab initio

Special Benefit

NO SPECIAL BENEFIT

Diagnostic Code

6100

Docket No.

210317-143982

Full Decision Text

Citation Nr: A23037125
Decision Date: 12/22/23 Archive Date: 12/22/23

DOCKET NO. 210317-143982
DATE: December 22, 2023

ORDER

The Veteran's 50 percent rating for bilateral hearing loss is restored.

The claim of entitlement to a rating higher than 50 percent for bilateral hearing loss is denied.

FINDINGS OF FACT

1. The Veteran's hearing loss was improperly reduced from 50 to 40 percent as the record did not show an actual improvement in functioning under the ordinary conditions of life and work.

2. During the period on review, the Veteran's hearing loss disability manifested with Level VII and Level VIII hearing acuity in the right and left ear, respectively.

CONCLUSIONS OF LAW

1. The criteria are met to restore the Veteran's 50 percent rating for hearing loss. 38?U.S.C. §§?1155, 5107, 5112; 38?C.F.R. §§?3.105, 3.344, 4.85, DC 6100.

2. The criteria are not met for a rating higher than 50 percent for bilateral hearing loss. 38?U.S.C. §§?1155, 5107; 38?C.F.R. §§?4.3, 4.85, DC 6100.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty from June 1969 to June 1971.

This appeal is from a January 28, 2021, rating decision, which reduced the Veteran's rating for bilateral hearing loss from 50 percent to 40 percent. He timely appealed the reduction and the denial of a higher rating to the Board, asking for direct review. He both asserted that the reduction was improper and that his hearing loss warranted higher than 50 percent.

This appeal is being reviewed under the modernized system, which means that the evidentiary record closed as of the date of the issuance of the decision on appeal. The Board's review of the evidence is restricted to the evidence of record at the time of the issuance of the decision on appeal.

Under the modernized system, the Board does not have the authority to conduct additional development, except to correct duty-to-assist errors made prior to the issuance of the decision on appeal. The Veteran has not alleged any errors committed by the AOJ (agency of original jurisdiction), and the Board has not identified any; therefore, the appeals may be considered on their merits.

The Board notes that if the Veteran has evidence that he believes shows an increase in severity of his hearing loss disability, he is advised to file a supplemental claim within a year of the issuance of this decision.

1. The Veteran's 50 percent rating for bilateral hearing loss is restored.

2. The claim of entitlement to a rating higher than 50 percent for bilateral hearing loss is denied.

Disability ratings are assigned in accordance with VA's Schedule for Rating Disabilities and are intended to represent the average impairment of earning capacity resulting from disability. See 38?U.S.C. §?1155; 38?C.F.R. §§?3.321(a), 4.1. Separate diagnostic codes (DCs) identify the various disabilities. See generally 38?C.F.R. Part 4. If two disability evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38?C.F.R. §?4.7. Reasonable doubt regarding the degree of disability will be resolved in favor of the claimant. 38?C.F.R. §?4.3.

Hearing loss is rated under DC 6100.? 38?C.F.R. §?4.85.? Once a hearing disability has been established, a numeric designation of hearing impairment is determined for each ear by applying the puretone threshold average and Maryland CNC percentage scores to Table VI ("Numeric Designation of Hearing Impairment Based on Puretone Threshold Average and Speech Discrimination"), which results in a Roman numeral designation.? 38?C.F.R. §?4.85(b), Table VI.? Disability ratings are then assigned by combining the level of hearing loss in each ear in Table VII ("Percentage Evaluation for Hearing Impairment").? 38?C.F.R. §?4.85(e), Table VII; see Lendenmann v. Principi, 3?Vet. App.?345(1992).?

Table VI is generally used to determine the Roman numeral designation (I through XI) for hearing impairment in each ear, unless the Veteran has an exceptional pattern of hearing loss, are obtained
("Numeric Designation of Hearing Impairment Based on Puretone Threshold Average and Speech Discrimination"), which results in a Roman numeral designation.? 38?C.F.R. §?4.85(b), Table VI.? Disability ratings are then assigned by combining the level of hearing loss in each ear in Table VII ("Percentage Evaluation for Hearing Impairment").? 38?C.F.R. §?4.85(e), Table VII; see Lendenmann v. Principi, 3?Vet. App.?345(1992).?

The Board will address the reduction, then whether he is entitled to a higher rating.

In rating reduction cases, VA must establish, by a preponderance of evidence, that the reduction was warranted. Brown v. Brown, 5?Vet. App.?413, 421 (1993); Kitchens v. Brown, 7?Vet. App.?320, 324 (1995). A reduction in rating must be based upon review of the entire history of the disability. Brown, 5?Vet. App.?at 420; see also 38?C.F.R. §§?4.1, 4.2, 4.10. VA must then ascertain whether the evidence reflects an actual change in the disability and whether the examination reports reflecting such change are based on thorough and adequate examinations. Faust v. West, 13?Vet. App.?342, 349 (2000). Finally, it must be determined whether the improvement actually reflects an improvement in the veteran's ability to function under the ordinary conditions of life and work. Brown, 5?Vet. App.?at 421.

The regulations "impose a clear requirement that VA rating reductions, as with all VA rating decisions, be based upon review of the entire history of the veteran's disability." Brown v. Brown, 5?Vet. App.?413, 420 (1993) (referring to 38?C.F.R. §§?4.1, 4.2, 4.13). Ratings that have been in effect for less than five years, such as here, require improvement before an evaluation is reduced. 38?C.F.R. §?3.344(c). To reiterate, the rating agency must determine whether the improvement actually reflects an improvement in the veteran's ability to function under the ordinary conditions of life and work. Brown, 5?Vet. App.?at 421.

After review of the evidence, the Board finds that the reduction was not proper as the AOJ (agency of original jurisdiction) did not address whether there was an actual improvement in the Veteran's ability to function under the ordinary conditions of life and work. Id. Rather, the January 2020 decision merely cited the results of his hearing test and noted that higher evaluations are assigned for more severe hearing impairment.

This determination does not address whether the evidence shows an actual improvement in the ability to function. The evidence weighs against finding improved ability to function.

Indeed, at the February 2018 VA examination, which established his 50 percent rating, he noted that his hearing loss caused him to have decreased hearing sensitivity that caused communication difficulties. At the November 2020 VA examination, he reported that his impaired hearing along with interference of other noises made it difficult for him to clearly hear speech. The Board does not find a significant difference in these statements, or that the November 2020 statement shows improvement in function.

Accordingly, the Board finds that the record does not show that there has been an improvement in the ability to function under the ordinary conditions of life and work. Decisions by the AOJ that do not apply the provisions of 38?C.F.R. §?3.344, when applicable, are void ab initio (i.e., at their inception). Brown, 5?Vet. App.?at 413; see also Hayes v. Brown, 9?Vet. App.?67, 73 (1996). Since the rating decision that accomplished the reduction of the Veteran's service-connected hearing loss did not properly apply the provisions of 38?C.F.R. §?3.344, the reduction is void. The appropriate remedy is to restore the 50 percent rating. Hayes, 9?Vet. App.?at 73.

The Board will next address whether the record shows
apply the provisions of 38?C.F.R. §?3.344, when applicable, are void ab initio (i.e., at their inception). Brown, 5?Vet. App.?at 413; see also Hayes v. Brown, 9?Vet. App.?67, 73 (1996). Since the rating decision that accomplished the reduction of the Veteran's service-connected hearing loss did not properly apply the provisions of 38?C.F.R. §?3.344, the reduction is void. The appropriate remedy is to restore the 50 percent rating. Hayes, 9?Vet. App.?at 73.

The Board will next address whether the record shows that a rating higher than 50 percent is warranted. The Board does not find a higher rating is warranted.

The Veteran had a VA examination in November 2020. Hearing test results from that day show the following threshold values in the right ear: 60 dB at 500 Hz, 65 dB at 1000 Hz, 75 dB at 2000 Hz, 90 dB at 3000 Hz, and 100+ dB at 4000 Hz, with an average threshold value of 83 dB in the right ear.? The results of the Maryland CNC test were 72 percent.? These results correspond to Level VII hearing acuity under Table VI and Table VIa.? 38?C.F.R. §§?4.85, 4.86.? In the left ear: 65 dB at 500 Hz, 70 dB at 1000 Hz, 85 dB at 2000 Hz, 100+ dB at 3000 Hz, and 100+ dB at 4000 Hz, with an average threshold value of 89 dB in the left ear.? The results of the Maryland CNC test were 60 percent.? These results correspond to Level VIII hearing acuity under Table VI and Table VIa.

Under Table VII, these results do not correspond to a rating higher than 50 percent.

The record does not contain any additional hearing tests during the period on appeal.

The Board acknowledges his reported functional loss and his sincere belief that his hearing loss has increased in severity. The Board is sympathetic to these issues. However, the Veteran has not been shown to have the training or expertise to competently render such an opinion. The evidence does not support a higher rating without commensurate audiometric testing.? The results of audiometric testing are more probative than personal statements in determining the actual degree of disability as set forth by the Rating Schedule.? This hearing test evidence is more persuasive, as it objectively shows the level of severity of his hearing loss in terms that may be applied to the rating criteria.? 38?C.F.R. §?4.85; Lendenmann, supra.? Accordingly, without additional test results showing an objective difference, the Board finds that the evidence is insufficient to award a higher rating.

The Veteran has not raised any issues with the VA examination or alleged that the results or invalid. The Board finds the VA examination adequate for rating purposes.

Accordingly, the Veteran's rating was improperly reduced and is restored to 50 percent. However, a rating higher than 50 percent is not warranted, and the appeal of that issue must be denied.

As mentioned above, if the Veteran has evidence he believes demonstrates and increase in severity, then he is advised to file a supplemental claim within a year of the issuance of this decision.

Nathaniel J. Doan

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board Gibson, Amanda

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.

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