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