Citation Nr: 18156060 Decision Date: 12/06/18 Archive Date: 12/06/18 DOCKET NO. 16-23 092 DATE: December 6, 2018 ORDER Prior to July 19, 2016, entitlement to a 50 percent disability rating for bilateral hearing loss (which effectively includes restoration of a compensable disability rating from January 1, 2015) is granted. FINDING OF FACT Giving the Veteran the benefit of the doubt, prior to July 19, 2016, his hearing was no worse than Level IX for the right ear and VIII for the left ear. CONCLUSIONS OF LAW 1. The reduction of the evaluation of service-connected bilateral hearing loss from 10 percent to noncompensable, effective January 1, 2015, was not proper. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.105, 3.344, 4.85, Diagnostic Code 6100 (2017). 2. Prior to July 19, 2016, the criteria for a 50 percent disability rating, and no higher, for bilateral hearing loss are met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 3.102, 3.321, 4.1-4.10, 4.85, Diagnostic Code 6100 (2017). REASONS AND BASES FOR FINDING AND CONCLUSIONS The Veteran had active duty from April 1970 to December 1971. In an April 2017 rating decision, the RO granted a 100 percent disability rating for bilateral hearing loss, from July 19, 2016. As such, an increased rating from July 19, 2016, is not before the Board. Entitlement to a compensable rating for bilateral hearing loss prior to July 19, 2016, to include restoration of a compensable disability rating from January 1, 2015. The Veteran contends that prior to July 19, 2016, his 10 percent disability rating for bilateral hearing loss should be restored. Furthermore, he contends that a disability rating higher than 10 percent is warranted. In an April 2017 rating decision, the RO granted a 100 percent disability rating for bilateral hearing loss (effective July 19, 2016). By way of background, in a September 2012 rating decision, the RO had granted a 10 percent disability rating for bilateral hearing loss, effective August 1, 2012. Following an April 2014 rating decision, in which the RO proposed a reduction from 10 percent to 0 percent for bilateral hearing loss, the RO reduced the rating to a noncompensable level in an October 2014 rating decision, effective January 1, 2015. The 10 percent disability rating had been in effect for less than 5 years when it was reduced. General regulatory requirements for disability ratings must be met in making a determination regarding whether improvement is shown. Brown v. Brown, 5 Vet. App. 413 (1993). Reexamination disclosing improvement will warrant a rating reduction. 38 C.F.R. § 3.344(c). The entire recorded history of the disability must be reviewed. 38 C.F.R. §§ 4.1, 4.2. The evidence must reflect an actual change in the disability and not merely a difference in the thoroughness of the examination or in the use of descriptive terms. 38 C.F.R. § 4.13. It must further show that the disability has improved in such a manner that the Veteran’s ability to function under the ordinary conditions of life and work has been enhanced. 38 C.F.R. §§ 4.2, 4.10; Schafrath v. Derwinski, 1 Vet. App. 589 (1991). In determining whether a reduction was proper, the Board must focus upon evidence available to the RO at the time the reduction was effectuated, although post-reduction medical evidence may be considered in the context of evaluating whether the condition had actually improved. Dofflemyer v. Derwinski, 2 Vet. App. 277, 281-282 (1992). It should be emphasized, however, that such after-the-fact evidence may not be used to justify an improper reduction. The Board finds that the RO’s decision to reduce the Veteran’s evaluation to 0 percent effective January 1, 2015, was not supported by the evidence contained in the record at the time of the reduction. The RO appears to have reduced the Veteran’s rating from 10 percent to 0 percent based on the findings of an April 2014 VA examination, which showed hearing levels of II bilateral, indicative of a noncompensable level. In the September 2012 VA examination upon which the RO previously granted a 10 percent disability rating, the Veteran had hearing at Level II for the right ear and Level III for the left ear, indicative of a 10 percent disability rating. However, in January 2015, around the time the reduction came into effect, the Veteran submitted a private evaluation from Ward Hearing LLC, which indicated hearing levels of IX for the right ear and VIII for the left ear, supportive of a 50 percent disability rating. Such evidence is counter to a finding an improvement in the Veteran’s disability. Moreover, even if the Board were to find that improvement in the disability had been shown, the Board finds that such hypothetical improvement would not actually reflect an improvement in the Veteran’s ability to function under the ordinary conditions of life and work. The April 2014 VA examination did not show any functional improvement from the September 2012 VA examination. The Board thus finds that the RO reduced the Veteran’s rating without observance of the applicable law. As such, the erroneous reduction must be vacated and the prior rating would generally be restored, from January 1, 2015, to July 18, 2016. However, the Board also finds that an increased rating, higher than a restored 10 percent, should be granted for the bilateral hearing loss prior to July 19, 2016. Specifically, giving the Veteran the benefit of the doubt, the Board finds that a 50 percent disability rating is warranted. Given the grant of a 50 percent disability rating, a restoration to 10 percent during the reduction period is effectively mooted – the grant of a 50 percent includes the period from January 1, 2015, to July 18, 2016. The April 2014 VA examination showed hearing levels of II bilateral, indicative of a noncompensable level. However, the January 2015 private audiologist evaluation indicated findings of Level IX of the right ear and Level VIII of the left ear, indicative of a 50 percent disability rating. Alternatively, the January 2015 findings can be considered based only on puretone threshold average, for consideration as an exceptional pattern of hearing impairment under 38 C.F.R. § 4.86(b), for a Level VII of the right ear and Level VIII of the left ear, which would be indicative of a 40 percent disability rating. Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). (Continued on the next page)   Giving the Veteran the benefit of the doubt as to the hearing test findings of record, the Board finds that prior to July 19, 2016, a 50 percent disability rating is warranted. The grant of a 50 percent disability rating prior to July 19, 2016 encompasses the period when his rating had been reduced to noncompensable (from January 1, 2015 to July 18, 2016). H.M. WALKER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Lindio