Citation Nr: 18150186 Decision Date: 11/14/18 Archive Date: 11/14/18 DOCKET NO. 15-12 864 DATE: November 14, 2018 ORDER The reduction from a 50 percent rating for hearing loss to zero percent from July 1, 2013, was proper. REMANDED Entitlement to service connection for a left knee disorder is remanded. Entitlement to service connection for a right knee disorder is remanded. Entitlement to service connection for a left foot disorder is remanded. Entitlement to service connection for a right foot disorder is remanded. Entitlement to service connection for a lumbar spine disorder is remanded. Entitlement to service connection for a cervical spine disorder is remanded. A total disability rating based upon individual unemployability due to service-connected disabilities (TDIU) is remanded. FINDING OF FACT Since the Veteran’s June 2009 examination, his hearing loss has shown actual improvement in his ability to function under the ordinary conditions of life and work. CONCLUSION OF LAW The reduction from a 50 percent rating for hearing loss to zero percent from July 1, 2013, was proper. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.105, 3.344, 4.85, Diagnostic Code 8100. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty from February 1968 to February 1969. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an April 2013 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. The Veteran has raised the issue of whether he was unemployable due, in part, to service-connected hearing loss. The Board takes jurisdiction of the issue of entitlement to a TDIU because it is part and parcel to the issue on appeal. Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). Hearing Loss In this case, the 50 percent rating for service-connected hearing loss was in effect for less than 5 years; thus, the provisions of 38 C.F.R. § 3.344(c) are applicable. Reexamination disclosing improvement will warrant reduction in rating. Nonetheless, in any rating-reduction case, not only must it be determined that an improvement in a disability has actually occurred, but also that that improvement actually reflects an improvement in a veteran’s ability to function under the ordinary conditions of life and work. Faust v. West, 13 Vet. App. 342, 350 (2000); see also 38 C.F.R. § 3.344. In determining a veteran’s ability to function under the ordinary conditions of life and work, the Board will look at post-reduction evidence. The Veteran’s hearing loss was rated under Diagnostic Code 8100. 38 C.F.R. § 4.85. Hearing loss ratings range from noncompensable to 100 percent based on organic impairment of hearing acuity, as measured by controlled speech discrimination tests in conjunction with average hearing thresholds determined by pure tone audiometric testing at frequencies of 1000, 2000, 3000 and 4000 cycles per second. “Pure tone threshold average” is the sum of the pure tone thresholds at 1000, 2000, 3000 and 4000 Hertz divided by four. This average is used in all cases (including those in §4.86) to determine the Roman numeral designation for hearing impairment from Table VI or VIa. 38 C.F.R. § 4.85, Diagnostic Code 6100. The Veteran has stated his disagreement with the reduction because he does not believe his hearing loss has improved since the June 2009 VA examination that served as the basis for his initial 50 percent rating. See, e.g., Notice of Disagreement (April 2013). In reducing the Veteran’s rating, the RO compared the results of three examinations, each of which conducted by audiologists. The first was conducted in June 2009 and recorded pure tone thresholds, in decibels, and controlled speech discrimination as follows: HERTZ CNC 1000 2000 3000 4000 Avg % RIGHT 30 40 35 30 33.8 38 LEFT 20 25 25 35 27.5 36 Based on the results of the June 2009 examination, the RO assigned an initial 50 percent rating for hearing loss. The second examination was conducted in March 2010 and recorded pure tone thresholds, in decibels, and controlled speech discrimination as follows: HERTZ CNC 1000 2000 3000 4000 Avg % RIGHT 25 30 35 30 30 92 LEFT 20 25 35 30 27.5 90 The third examination was conducted in September 2014 and recorded pure tone thresholds, in decibels, and controlled speech discrimination as follows: HERTZ CNC 1000 2000 3000 4000 Avg % RIGHT 35 30 35 30 33 92 LEFT 35 30 40 40 36 86 Initially, the Board notes that there is little difference in pure tone thresholds between these three examinations. However, there is a significant difference in controlled speech discrimination between the first examination and second and third examinations. Controlled speech discrimination scores objectively evaluate how well the Veteran understands words. See VA examination (September 2014). The scores recorded during the 2010 and 2014 examinations are more than double those recorded during the June 2009 examination. The scores recorded in 2010 and 2014 evince actual, sustained improvement over the course of several years. Moreover, such improvement actually reflects an improvement in a Veteran’s ability to function under the ordinary conditions of life and work because the increased speech discrimination scores objectively demonstrate a significant improvement in the Veteran’s ability to understand speech, which has been his primary complaint with regard to his hearing loss. See, e.g., Faust, 13 Vet. App. 350; see also 38 C.F.R. § 3.344. Accordingly, as the evidence shows that the Veteran’s hearing loss underwent actual improvement, the reduction from a 50 percent rating for hearing loss to zero percent from July 1, 2013, was proper. REASONS FOR REMAND 1. Entitlement to service connection for a left knee disorder is remanded. 2. Entitlement to service connection for a right knee disorder is remanded. 3. Entitlement to service connection for a left foot disorder is remanded. 4. Entitlement to service connection for a right foot disorder is remanded. 5. Entitlement to service connection for a lumbar spine disorder is remanded. 6. Entitlement to service connection for a cervical spine disorder is remanded. In April 2010, the Veteran filed a notice of disagreement (NOD) with the July 2009 rating decision that denied claims of service connection for, among other things, disorders of the bilateral knees and feet, cervical spine, and lumbar spine. In March 2013, the RO issued a statement of the case (SOC) on these matters. A Report of General Information, dated March 14, 2013, shows that the Veteran spoke with a VA representative to speak about a matter unrelated to his July 2009 NOD. During the conversation, the Veteran reported that he had not received a copy of the recent SOC. Thereafter, there is no indication that the SOC was resent to the Veteran. Additionally, in a February 2018 brief, the Veteran’s representative reports that the Veteran never received a copy of the SOC. Because to date the RO has not sent the Veteran an SOC despite the Veteran’s specific request to do so, the Board finds that these claims must be remanded for the AOJ to issue an statement of the case (SOC). See Manlincon v. West, 12 Vet. App. 238 (1999). 7. A TDIU is remanded. The Veteran’s claim for TDIU is also remanded, as it is inextricably intertwined with the above-discussed claims for service connection. See VA Form 8940 (December 28, 2009; December 31, 2014) (showing that the Veteran contends that he is unemployable, in part, due to his knee, ankle, and feet disorders). The matters are REMANDED for the following action: As to the claims of service connection for disorders of the left knee, right knee, left foot, right foot, cervical spine, and lumbar spine issue a SOC. Thereafter, only return those issues to the Board that the Veteran perfects his appeal by filing a timely substantive appeal. STEVEN D. REISS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Joshua Castillo, Counsel