Citation Nr: 0813909	
Decision Date: 04/28/08    Archive Date: 05/08/08

DOCKET NO.  05-22 962	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Columbia, 
South Carolina


THE ISSUE

Whether the August 2004 rating decision which reduced the 
rating for a hearing loss to a noncompensable rate was 
appropriate?  


REPRESENTATION

Appellant represented by:	The American Legion


ATTORNEY FOR THE BOARD

S. Grabia, Counsel



INTRODUCTION

The veteran had active service from August 1976 to August 
1980 and from June 1986 to July 2003.

In April 2004, the Columbia, South Carolina, Regional Office 
(RO) proposed to reduce the disability evaluation assigned 
for bilateral hearing loss to noncompensable.  This matter 
came before the Board of Veterans' Appeals (Board) on appeal 
from an August 2004 RO decision which effectuated the 
proposed reduction effective November 1, 2004.  


FINDING OF FACT

The August 2004 rating decision, which reduced the rating for 
the veteran's service-connected bilateral hearing loss to 
zero percent, failed to comply with pertinent law and 
regulations.


CONCLUSION OF LAW

The August 2004 rating decision, insofar as it reduced to 
zero percent the rating for bilateral hearing loss effective 
as of November 1, 2004, was improper and is void ab initio.  
38 C.F.R. §§ 3.105, 3.344 (2007).


REASONS AND BASES FOR FINDING AND CONCLUSION

The Veterans Claims Assistance Act of 2000 (VCAA) and 
implementing regulations impose obligations on VA to provide 
claimants with notice and assistance.  38 U.S.C.A. §§ 5102, 
5103, 5103A, 5107, 5126; 38 C.F.R §§ 3.102, 3.156(a), 3.159, 
3.326(a).  In light of the favorable determination with 
respect to the veteran's claim, the Board finds that a 
discussion of VCAA compliance is unnecessary. 

Background

At a June 2003 VA Audiometric examination the audiologist 
noted that the veteran's responses were inconsistent with 
poor inter-test reliability between air conduction thresholds 
and speech reception in both ears.  The veteran's responses 
were still inconsistent after several re-instructions.  The 
audiologist recommended retesting with a different 
audiologist.  Pure tone thresholds, in decibels were as 
follows:
 


HERTZ



1000
2000
3000
4000
RIGHT
20
20
20
20
LEFT
25
20
30
35

Average pure tone thresholds were 20 decibels for the right 
ear and 28 decibels for the left ear.  Speech audiometry 
revealed speech recognition ability of 92 percent in the 
right ear and 96 percent in the left ear.  The impression was 
mild sensorineural hearing loss, right ear and left ear.

By rating action in August 2003 service connection for a 
hearing loss was granted.  The RO noted that the veteran's 
hearing at the June 2003 VA examination was normal for VA 
purposes, however, due to poor inter-test reliability the 
hearing results were inconsistent and repeat testing was 
recommended.  Notwithstanding this recommendation the RO 
granted a 20 percent rating based on the last audiological 
examination in service in January 2003.  That study showed:
 
Jan 2003

HERTZ



1000
2000
3000
4000
RIGHT
50
65
75
75
LEFT
55
75
85
80

Average pure tone thresholds were 66 decibels for the right 
ear and 74 decibels for the left ear.  

By rating action in April 2004 the RO proposed to decrease 
the 20 percent rating for bilateral hearing loss to 
noncompensable.  The RO noted that the reduction was based on 
the results of a "July 2003" VA audiometric re-examination 
which had been ordered as a result of the inconsistent 
responses during the June 2003 examination.

Subsequently by rating action in August 2004 the RO decreased 
the 20 percent rating to noncompensable effective from 
November 1, 2004.

In a September 2004 letter, the veteran asked how the RO 
could have determined his hearing had improved without 
retesting him.  He further noted that he had been traveling 
out of the country.

An October 2004 RO letter acknowledged receipt of the 
veteran's September 2004 letter.  The veteran was informed 
that a VA examination was being scheduled in connection with 
his appeal.  He was informed that failure to appear for the 
examination could have detrimental effect on his appeal.

In an October 2004 letter the appellant reiterated that he 
had not been retested by VA.  In addition he reported that he 
was still out of the country and it would be difficult to 
report to a VA hospital for examination.

A January 2005 letter from the RO notes the veteran was being 
scheduled for an examination in spite of twice informing VA 
that he was out of country.

A February 2005 statement of the case noted the veteran 
failed to report for examination twice in February 2005.  It 
also again referred to the alleged VA audiological retest in 
July 2003.

In a March 2005 letter, the veteran confirmed receipt of the 
statement of the case.  He noted that he was working in Iraq 
and was not expected to be home until August 2005.  He asked 
if arraignments could be made for testing in the Army 
Hospital in Baghdad.

A May 2005 letter from the RO notes the veteran should submit 
whatever additional evidence he had, "such as a hospital 
exam from the Army hospital in Baghdad."  If he perfected 
his appeal, the RO noted that it, "would most likely 
schedule you for a new hearing test once you return to the 
United States in August 2005."

In July 2005 the veteran perfected his appeal noting he would 
like a hearing before a Board Member at the RO. With his VA 9 
Form, he attached a statement noting that he would notify the 
RO upon his return from Iraq so his hearing test could be 
rescheduled.  

He was subsequently scheduled for a July 2006 Travel Board 
hearing which he failed to report for.  

In August 2006 the veteran, through his representative, 
submitted an undated audiological report with no name on it.  
While this evidence was submitted with a waiver it is 
insufficient for VA rating purposes in the absence of 
evidence that a Maryland CNC Word Recognition study was 
performed.  

Analysis

A claim stemming from a rating reduction is a claim as to 
whether the reduction was proper, not whether the veteran is 
entitled to an increased rating. The circumstances under 
which an evaluation may be reduced are specifically limited 
and carefully circumscribed by regulations promulgated by the 
Secretary of the VA.  Dofflemyer v. Derwinski, 2 Vet. App. 
277, 280 (1992).  

Under 38 C.F.R. § 3.105(e), where the reduction in evaluation 
of a service connected disability is considered warranted and 
the lower evaluation would result in a reduction of 
compensation payments, a rating action will be taken.  The 
reduction will be made effective the last day of the month in 
which a 60-day period from the date of notice to the payee 
expires.  The veteran will be notified of the proposed 
reduction, that he has 60 days to present evidence showing 
why the reduction should not be implemented, and that he may 
request a hearing.

The criteria for a rating reduction is found in 38 C.F.R. § 
3.344.  Specific provisions, 38 C.F.R. § 3.344(a) and (b), 
apply to a rating that had been continued for a long period 
of time at the same level (five years or more).  Brown v. 
Brown, 5 Vet. App. 413 (1993).  In the present case, the 20 
percent rating was in effect from August 2003 to November 1, 
2004, less than five years, and thus the five year provisions 
of 38 C.F.R. § 3.344(a) and (b) do not apply.  There still, 
however, is a requirement that reexamination show improvement 
in order to reduce a rating.  38 C.F.R. § 3.344(c).

In any rating reduction case, not only must it be determined 
that an improvement in a disability has actually occurred, 
but that such improvement reflects improvement in ability to 
function under ordinary conditions of life and work.  38 
C.F.R. §§ 4.2, 4.10; Brown, 5 Vet. App. at 420-21.

The August 2004 rating decision decreased the rating for the 
veteran's bilateral hearing loss to 0 percent rating under 
Diagnostic Code 6100, effective November 1, 2003, on the 
basis of a VA examination in July 2003.  In reviewing the 
record, the Board observes that it can find no evidence of 
any July 2003 VA re-examination that reflects improvement of 
the veteran's disability level.  A deferred rating dated 
February 27, 2004 refers to "VA examination dated 7-28-2003 
of record at time of rating decision is the retest recommened 
by VA examination dated 06-23-03." The rating decision 
discusses in detail the results of the June 2003 audiological 
examination erroneously identifying them as the "July 2003" 
re-examination.  If a July 2003 examination had in fact been 
conducted, the results of that study would have been 
available to adjudicators prior to the August 2003 rating 
decision establishing a 20 percent rating for hearing loss.  
The fact that the "July 2003" results were not referenced 
in the August 2003 rating decision supports the veteran's 
assertion that he was never reexamined.  

The procedures followed in reducing the appellant's rating 
are also problematical because the RO scheduled several 
examinations not withstanding the veteran's explicit 
revelation that he would be out of the country.  There is no 
evidence whatsoever that VA made any effort to schedule an 
examination for the veteran overseas.  Hence, there is clear 
evidence that VA failed to assist the appellant in the 
development of his claim.

The Court has consistently held that when VA reduces a 
veteran's disability rating without following the applicable 
regulations, the reduction is void ab initio and will be set 
aside.  Greyzck v. West, 12 Vet. App. 288, 292 (1999).  
Therefore, since the procedural requirements for the 
reduction were not complied with, the rating reduction is 
void ab initio as a matter of law.  The reduction of the 
veteran's evaluation for hearing loss to zero percent is set 
aside.  The 20 percent rating is restored.

While the Board restores the 20 percent rating because of 
VA's failure to follow its own regulations, this decision 
does not preclude the RO from reducing the veteran's rating 
in the future if the evidence so warrants and provided that 
VA complies with the laws and regulations which govern VA 
compensation benefits.


ORDER

Restoration of a 20 percent evaluation for bilateral hearing 
loss is granted, subject to the rules and regulations 
governing the award of monetary benefits.


____________________________________________
DEREK R. BROWN
Veterans Law Judge, Board of Veterans' Appeals


 Department of Veterans Affairs