Citation Nr: 18145799 Decision Date: 10/30/18 Archive Date: 10/30/18 DOCKET NO. 15-10 683 DATE: October 30, 2018 ORDER The reduction from 10 percent to 0 percent disabling for bilateral hearing loss, effective July 1, 2013 is restored. FINDING OF FACT The Agency of Original Jurisdiction (AOJ) decision to reduce the Veteran’s service-connected bilateral hearing loss from 10 percent to 0 percent, effective July 1, 2013, was not proper as the AOJ failed to consider whether the evidence demonstrated material improvement reasonably certain to continue under the ordinary conditions of life. CONCLUSION OF LAW As the AOJ’s reduction of the disability rating for the service connected bilateral hearing loss from 10 percent to 0 percent disabling, effective July 1, 2013, was not in accordance with law, the criteria for restoration of the 10 percent rating are met. 38 U.S.C. §§ 1155, 5103, 5103A (2012); 38 C.F.R. §§ 4.85, 4.86, Diagnostic Code 6100. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the U.S. Navy from April 1966 to March 1970. The Veteran died in June 2015. The appellant is the surviving spouse and substitute claimant in this appeal. See 38 U.S.C. § 5121A. The appellant appeals the reduction from 10 percent to 0 percent disabling for bilateral hearing loss, effective July 1, 2013. In a September 2010 rating decision, the AOJ informed the Veteran of its proposal to reduce his disability rating from 10 to 0 percent. The September 2010 notification letter from the RO informed the Veteran that medical records showed some improvement in his hearing loss disability. In an April 2013 rating decision, the Veteran’s disability was reduced from 10 to 0 percent. In the April 2013 notification letter, the Veteran was again informed that medical records showed some improvement in his hearing loss disability. The appellant presented sworn testimony in support of this appeal during an October 2018 hearing held in Boston, MA before the undersigned Veterans Law Judge. This decision is being made under the One Touch program, based upon review of the entire claims file and the undersigned’s recollection of the hearing testimony. A transcript of the hearing will be associated with the claims file at a later time. Notably, the Veteran’s counsel indicated appeal satisfaction would be obtained with restoration of the 10 percent rating for the entire appeal period. A veteran’s disability rating shall not be reduced unless an improvement in the disability is shown to have occurred. See 38 U.S.C. § 1155. Prior to reducing a veteran’s disability rating, VA is required to comply with several general VA regulations applicable to all rating-reduction cases, regardless of the rating level or the length of time that the rating has been in effect. See 38 C.F.R. §§ 4.1, 4.2, 4.10, 4.13 (2017); see also Brown v. Brown, 5 Vet. App. 413, 420 (1993). Such review requires in any rating reduction case VA to determine (1) based upon review of the entire recorded history of the condition, whether the evidence reflects an actual change in the disability; (2) whether the examination reports reflecting such change are based upon thorough examinations; and (3) whether any improvement actually reflects an improvement in the Veteran’s ability to function under the ordinary conditions of life and work. See Murphy v. Shinseki, 26 Vet. App. 510, 517 (2014) (citing Brown, 5 Vet. App. at 421). It is essential, both in the examination and in the evaluation of the disability, that each disability be viewed in relation to its history. C.F.R. § 4.1. If an examination report does not contain sufficient detail, or the diagnosis is not supported by the findings on the examination report, it must be returned as inadequate for rating purposes. 38 C.F.R. § 4.2. When any change in evaluation is to be made, the rating agency should assure itself that there has been an actual change in the conditions, for better or worse, and not merely a difference in thoroughness of the examinations or in use of descriptive terms. 38 C.F.R. § 4.13. Finally, it must be considered that the basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body, to function under the ordinary conditions of daily life, including employment. 38 C.F.R. § 4.10. As to the propriety of the reduction, for reductions in rating to be properly accomplished, specific requirements must be met. See 38 C.F.R. § 3.344; see also Dofflemyer v. Derwinski, 2 Vet. App. 277 (1992). The requirements for reduction of ratings in effect for five years or more are set forth at 38 C.F.R. § 3.344 (a) and (b). The Board is required to establish, by a preponderance of the evidence, that a rating reduction on appeal is warranted. See Kitchens v. Brown, 7 Vet. App. 320, 325 (1995). Upon review of the evidence, the Board finds that the reduction in the rating from 10 percent to 0 percent for the Veteran’s service-connected bilateral hearing loss disability under DC 6100 was not proper, and restoration of the 10 percent rating is therefore warranted. To that end, the Board recognizes that, in implementing the proposed rating reduction, the AOJ weighed the evidence of record, and found that the records noted improvement in the service-connected bilateral hearing loss disability. However, review of the September 2010 and April 2013 rating decisions, the February 2015 Statement of the Case and November 2017 Supplemental Statement of the Case, all reflect that the AOJ failed to make a specific determination that there was an actual improvement in the Veteran’s ability to function under the ordinary conditions of work and life. See 38 C.F.R. §§ 4.10, 4.13. The AOJ’s failure to make such a determination in this case renders the reduction improper. The law provides that where a rating reduction was made without observance of law, although a remand for compliance with that law would normally be an adequate remedy, in a reduction case the erroneous reduction must be vacated and the prior rating restored. Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). In fact, 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); Hayes v. Brown, 9 Vet. App. 67, 73 (1996); Kitchens v. Brown, 7 Vet. App. 320, 324 (1995). Here, the AOJ failed to consider whether any improvement actually reflected an improvement in the Veteran’s ability to function under the ordinary conditions of life and work. See Kitchens, 7 Vet. App. at 324 (1995); Brown, 5 Vet. App. at 420-421 1993). Such an omission is error and not in accordance with the law. Greyzck, 12 Vet. App. at 292; Hayes, 9 Vet. App. at 73; Kitchens, 7 Vet. App. at 324. Accordingly, the 10 percent rating assigned for bilateral hearing loss under DC 6100 is restored. T. MAINELLI Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD T.S. Willie