Citation Nr: 18152680 Decision Date: 11/23/18 Archive Date: 11/23/18 DOCKET NO. 18-48 048 DATE: November 23, 2018 ORDER The 80 percent disability rating for the service-connected bilateral hearing loss is restored, effective March 1, 2016. FINDINGS OF FACT 1. The 80 percent evaluation for bilateral hearing loss had been in effect for more than five years at the time of the December 2015 rating decision that decreased the evaluation for the disability to 50 percent. 2. The reduction in the rating for bilateral hearing loss was done without consideration of the requirements of applicable provisions of 38 C.F.R. § 3.344. CONCLUSION OF LAW The reduction of the rating for bilateral hearing loss from 80 percent to 50 percent, effective March 1, 2016, is void, and the 80 percent rating is restored. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.105, 3.344. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from June 1960 to April 1981. This matter comes before the Board of Veterans’ Appeals (Board) on appeal of a rating decision issued in December 2015 by a Department of Veterans Affairs (VA) Regional Office. In the October 2018 substantive appeal (VA Form 9) the Veteran asserted entitlement to a total disability rating based upon individual unemployability due to service-connected disability (TDIU) as part of the current appeal. The Board declines to assume jurisdiction of the claim for a TDIU and will refer this matter for adjudication. Here, the December 2015 rating decision, the November 2016 notice of disagreement, and September 2018 statement of the case, show that the current appeal is limited to the reduction of the bilateral hearing loss disability rating. Since the issue on appeal is the propriety of a rating reduction and not an increased rating, the Board declines to assume jurisdiction of the TDIU claim. Peyton v. Derwinski, 1 Vet. App. 282 (1991) (distinguishing claims for rating reduction and increase rating); see Rice v. Shinseki, 22 Vet. App. 447 (2009) (TDIU must be considered when raised by the record in increased rating claims). The Board notes, however, in an April 2017 rating decision, the RO increased the Veteran’s disability rating for a psychiatric disorder to 100 percent, effective February 22, 2017, and granted entitlement to special monthly compensation based on the housebound criteria under 38 U.S.C. § 1114 (P-1), effective February 22, 2017. Since that time, the Veteran has also had additional disabilities independently ratable at 60 percent or more. Therefore, the TDIU claim is moot for the rating period from February 22, 2017. The Board does not have jurisdiction over a claim for entitlement to a TDIU prior to February 22, 2017, and it is referred for appropriate action.   Propriety of reduction in rating for bilateral hearing loss Before addressing whether the reduction was warranted, the Board must first determine whether the RO adhered to the proper procedure. Specifically, where a reduction in an evaluation of a service-connected disability is considered warranted and the lower evaluation would result in a reduction or discontinuance of compensation payments currently being made, a rating proposing the reduction or discontinuance must be prepared setting forth all material facts and reasons. VA must also notify the Veteran that he has 60 days to present additional evidence showing that compensation should be continued at the present level. 38 C.F.R. § 3.105(e). Where a reduction of benefits is found warranted and the proposal was made under the provisions of 38 C.F.R. § 3.105(e), the effective date of the final action shall be the last day of the month in which a 60-day period from the date of notice to the beneficiary of the final action expires. 38 C.F.R. § 3.105(i)(2). In this case, the Agency of Original Jurisdiction (AOJ) followed proper procedures for implementing the reduction. The AOJ proposed the reduction in a September 2015 rating decision that was mailed to the Veteran that same month. The final rating action was issued in December 2015, with the reduction to be effective March 1, 2016, which was more than 60 days after the date of the notice of the proposed reduction. Therefore, there was compliance with all requisite procedural matters. The Board must now consider whether the reduction in rating was proper. In cases where a rating has been in effect for five years or more, the rating agency must make reasonably certain that the improvement will be maintained under the conditions of ordinary life even if material improvement in the physical or mental condition is clearly reflected. Kitchens v. Brown, 7 Vet. App. 320 (1995). A rating that has been in effect for five years or more may not be reduced on the basis of only one examination in cases where the disability is the result of a disease subject to periodic or episodic improvement. 38 C.F.R. § 3.344 (a). The five-year period is calculated from the effective date of the rating to the effective date of the reduction. Brown v. Brown, 5 Vet. App. 413 (1993). If doubt remains, after according due consideration to all the evidence, the rating agency will continue the rating in effect. 38 C.F.R. § 3.344(b). Here the Veteran’s 80 percent rating for bilateral hearing loss was in effect from February 14, 2011 to March 1, 2016. Thus, the rating had been in effect for more than five years, and the provisions of 38 C.F.R. § 3.344 apply. In considering the propriety of a reduction, the Board must focus on the evidence of record available at the time the reduction was effectuated, although post-reduction medical evidence may be considered for the limited purpose of determining whether the condition has demonstrated actual improvement. Dofflemyer v. Derwinski, 2 Vet. App. 277 (1992). Here, the AOJ reduced the evaluation of the Veteran’s disability rating for bilateral hearing loss based on July 2015 VA examination findings. At that time, audiometric testing showed the pure tone thresholds in decibels at the tested frequencies of 1000, 2000, 3000, and 4000 Hertz in the right ear were 60, 80, 95, and 95, and 70, 80, 95, and 90 in the left ear. Speech discrimination was 50 percent in the right and 54 percent in the left. The Veteran reported inability to follow or participate in conversations, as well as reduced hearing acuity for sounds around him. In support of his claim, the Veteran submitted an October 2015 private audiology evaluation report that appeared to document worsening of the Veteran’s overall hearing acuity. Audiometric testing showed the pure tone thresholds in decibels at the tested frequencies of 1000, 2000, 3000, and 4000 Hertz in the right ear were 65, 85, 100, and 90, and 75, 85, 100, and 100 in the left ear. However, because there was no indication as to whether the Maryland CNC speech discrimination test was used in obtaining such scores, as is required for evaluation of the Veteran’s hearing loss disability, the AOJ determined the audiological evaluation was inadequate for VA rating purposes and did not considered it in effectuating the reduction in rating. See 38 C.F.R. § 4.85(a). Thus, the reduction of the Veteran’s disability rating was based on the findings of a single VA examination in 2015. The record does not include a finding that such examination was as complete as those upon which payment was authorized or continued. Neither the 2015 VA examination nor he AOJ addressed whether the examination reflected sustained material improvement, or whether any improvement in the disability actually reflected an improvement in the Veteran’s ability to function under the ordinary conditions of life and work. See 38 C.F.R. §§ 4.1, 4.2, 4.13; see also Brown, 5 Vet. App. at 420-22; see Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Essentially, the December 2015 rating decision and September 2018 statement of the case show that while the AOJ noted improvement in the Veteran’s bilateral hearing, the AOJ analyzed the reduction of the 80 percent rating just as it would a claim for an increased rating: by focusing on what the evidence must show for a rating in excess of 50 percent rather than discussing the overall improvement of the Veteran’s service-connected disability. Whenever the AOJ fails to show improvement, but rather impermissibly places the burden of proof on the Veteran to show his disability has worsened, the AOJ has not complied with 38 C.F.R. § 3.344. (Continued on the next page)   The Board emphasizes that failure to consider and apply the provisions of 38 C.F.R. § 3.344, if applicable, renders a rating decision void ab initio. Such an omission is error and not in accordance with the law. See Greyzck, 12 Vet. App. at 292; see also Hayes v. Brown, 9 Vet. App. 67, 73 (1996); Dofflemyer, 2 Vet. App. 277. Accordingly, the reduction to the rating of 50 percent for bilateral hearing loss was improper, and the 80 percent rating must be restored, effective March 1, 2016. Given the outcome warranted in view of this procedural error, the Board need not address, from an evidentiary standpoint, the actual merits of the reduction. M. M. CELLI Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Azizi-Barcelo, Tatiana