Citation Nr: 1304704 Decision Date: 02/08/13 Archive Date: 02/19/13 DOCKET NO. 12-21 083 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUE Propriety of reduction of assigned rating for service-connected hearing loss from 50 to 30 percent, effective February 1, 2012. REPRESENTATION Appellant represented by: South Carolina Office of Veterans Affairs ATTORNEY FOR THE BOARD John Kitlas, Counsel INTRODUCTION The Veteran served on active duty from September 1953 to September 1956. This matter is before the Board of Veterans' Appeals (Board) on appeal from rating decisions promulgated in May and November 2011 by the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. By the May 2011 rating decision, the RO proposed to reduce the assigned rating for the Veteran's service-connected hearing loss from 50 to 30 percent. The subsequent November 2011 rating decision effectuated this action effective February 1, 2012. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND While further delay is regrettable, the Board finds that additional development is necessary in this case. Service connection for bilateral hearing loss was established by a May 2008 rating decision. A September 2007 VA audiological examination, showing average puretone thresholds of 71.25 decibels in the right ear and 72.5 decibels in the left ear, with speech recognition scores of 60 percent in the right ear and 56 percent in the left ear. Based on these findings, the RO assigned 40 percent evaluation, effective from the August 15, 2006 date of claim. A November 2009 VA examination yielded average puretone thresholds of 71.25 decibels in the left ear and 68.75 decibels in the right ear, with speech recognition scores of 60 percent in the right ear and 40 percent in the left ear. In a December 2009 rating decision, the RO increased the evaluation for hearing loss to 50 percent, effective the October 9, 2009 date of claim. An October 2010 VA examination yielded average puretone thresholds of 71.25 decibels in the left ear and 70 decibels in the right ear, with speech recognition scores of 74 percent in the left ear and 76 percent in the right ear. As these findings support only a 30 percent evaluation pursuant to 38 C.F.R. §§ 4.85 and 4.86, the RO proposed to reduce the evaluation for hearing loss from 50 percent to 30 percent in a May 2011 rating decision. A May 2012 VA examination yielded average puretone thresholds of 71.25 decibels in the right ear and 75 decibels in the left ear, with speech recognition scores of 74 percent in the right ear and 68 percent in the left ear. These findings also support only a 30 percent evaluation pursuant to 38 C.F.R. §§ 4.85 and 4.86. In support of his appeal, the Veteran has submitted a letter from C. Haynes, a private audiologist, noting that he has seen the Veteran many times since 2001, and that he most recently saw the Veteran on January 5, 2012. However, this letter did not include an accompanying audiogram, nor any audiological findings to support the clinician's statement that the Veteran's hearing loss has not improved over time. While we have some audiogram graphs from Mr. Haynes dating from 2001 to 2007, no further treatment records from this provider have been requested or submitted. Thus, on remand, treatment records from C. Haynes dating since 2007 should be requested, and that clinician should also be asked to provide the actual values, in decibels, for frequencies from 1000 through 4000 Hertz for any graphs he provided. Additionally, Mr. Haynes should also be asked to identify the testing used for speech recognition, if any, and indicate whether such was conducted using a live voice or recorded voice. Additionally, the Board notes that while the 50 percent evaluation was not in effect for more than 5 years before being reduced, the Veteran had, in fact, been in receipt of at least a 40 percent evaluation since August 15, 2006, a period of more than 5 years at the time of the reduction. Thus, the reduction to an evaluation lower than 40 percent triggers the provisions of 38 C.F.R. § 3.344. That regulation provides that only evidence of sustained material improvement under the ordinary conditions of life, as shown by full and complete examinations, can justify a reduction. The Board notes that the July 2012 statement of the case did not include 38 C.F.R. § 3.344 in the Pertinent Laws section. Such should be remedied on remand, and on readjudication, the RO/AMC must consider the provisions of 38 C.F.R. § 3.344 in addressing whether the rating reduction was proper. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested.) 1. Ask the Veteran to provide an appropriate release form for Charles Haynes, M.Aud., CCC-A, so that records from that audiologist, including audiogram reports, dating since 2007 can be obtained. Once a completed release form is received, records from that audiologist should be requested. The audiologist should also be asked to provide the actual values, in decibels, for frequencies from 1000 through 4000 Hertz for any graphs he provided, as well as identifying the testing used for speech recognition, if any, and whether such was conducted using a live voice or recorded voice. 2. After the development requested above has been completed to the extent possible, the RO/AMC should again review the record. If the benefit sought on appeal remains denied, the appellant and representative, if any, should be furnished a supplemental statement of the case, which includes 38 C.F.R. § 3.344 in the Pertinent Regulations section and considered that regulation when readjudicating whether the rating reduction was proper. An appropriate period of time for response should be provided. Thereafter, the case should be returned to the Board, if in order. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). _________________________________________________ K. A. BANFIELD Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2012).