Citation Nr: 18157674 Decision Date: 12/13/18 Archive Date: 12/13/18 DOCKET NO. 16-57 504 DATE: December 13, 2018 ORDER The rating reduction from 20 to 0 percent, effective November 1, 2015, to August 9, 2017, for bilateral hearing loss, was not proper and the appeal for restoration is therefore granted, subject to the laws and regulations governing the payment of monetary awards. FINDING OF FACT The Veteran’s bilateral hearing loss is not shown to have improved during the entire period on appeal. CONCLUSION OF LAW The criteria for restoration of the 20 percent rating for bilateral hearing loss beginning on November 1, 2015, to August 9, 2017, have been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.105, 3.344. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the U.S. Navy from January 1965 to January 1967. This appeal stems from an August 2015 rating decision that reduced the disability rating assigned for the Veteran’s bilateral hearing loss from 20 percent to 0 percent, effective November 1, 2015. The Veteran filed a notice of disagreement with that decision contending the Regional Office (RO) erred in basing its decision to reduce the Veteran’s rating on the results of the December 2014 VA examination without fully contemplating the rest of the evidence of record. The Veteran was subsequently afforded another VA examination on August 9, 2017. In a September 2017 rating decision, the RO restored the Veteran’s 20 percent rating for bilateral hearing loss from the date of the August 9, 2017 VA examination. Therefore, this decision focuses on the propriety of the reduction of the 20 percent rating to 0 percent rating, effective from November 1, 2015, to August 9, 2017, for the Veteran’s bilateral hearing loss. After reviewing the record, the Board agrees that restoration of the 20 percent rating from November 1, 2015, to August 9, 2017, is warranted for the Veteran’s bilateral hearing loss. The criteria governing certain rating reductions for certain service-connected disabilities is found in 38 C.F.R. § 3.344. The provisions of 38 C.F.R. § 3.344(a) and (b) apply to ratings that have been continued for five years or more. In the present case, the 20 percent rating was effective for less than five years at the time the reduction took place. Specifically, the 20 percent rating was in place from October 2012 to November 2015. Therefore, the provisions of 38 C.F.R. § 3.344(a) and (b) do not apply. Rather, 38 C.F.R. § 3.344(c) applies in this matter, which provides that reexamination disclosing improvement will warrant a rating reduction. 38 C.F.R. § 3.344(c). However, in Brown v. Brown, 5 Vet. App. 413 (1993), the United States Court of Appeals for Veterans Claims stated that there are general VA regulations that apply to all rating reductions regardless of whether the rating was in effect for 5 years or more. 38 C.F.R. § 4.1 requires that each disability be viewed in relation to its history. 38 C.F.R. § 4.2 establishes that the rating specialist must interpret reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.13 provides that the rating agency should assure itself that there has been an actual change in the condition, for better or worse, and not merely a difference in the thoroughness of the examination or in use of descriptive terms. Additionally, in any rating reduction case, not only must it be determined that an improvement in a disability has actually occurred, but that such improvement reflects improvement in ability to function under ordinary conditions of life and work. See Brown v. Brown, supra. The testing results of the December 2014 VA examination (which was the basis for the rating reduction) did show improvement compared to a February 2014 examination, which served as the basis for a continuation of the 20 percent rating assigned for the Veteran’s bilateral hearing loss (see February 2014 rating decision). However, the Veteran reported his hearing had worsened since his last examination and he continued to report watching television at high volume and needing to turn his hearing aids all the way up, which he had mentioned even at the time of an earlier August 2013 VA examination. He also reported difficulty understanding speech and frequently asking people to repeat themselves. In correspondence from February 2015, the Veteran reported he was advised by the December 2014 VA examiner prior to the test that even if he was not sure if he heard or could decipher a sound or word, he should indicate that he did. The Veteran requested a new compensation hearing examination because he did not believe the test that was performed was accurate. He further reported in his February 2015 correspondence that his hearing had worsened in the two years since he had been married and his wife needed to answer all his phone calls because he had a difficult time hearing on the telephone. He also noted his television had to be on the highest volume and he still had difficulty hearing conversations. The Veteran’s reports of difficulty hearing do not suggest that his ability to function under ordinary conditions of life and work had improved. While the objective testing from December 2014 does indicate the Veteran’s hearing improved, the whole recorded history, including his complaint regarding the examination itself and his description of his actual hearing, does not reflect an improvement in his hearing. The Veteran’s statements are consistent with his communications with the RO, VA examiners, and when seeking medical treatment. Significantly, the medical evidence of record is consistent with the Veteran’s statements. For example, VA treatment notes from April 2015 indicate an audiologist reported the Veteran’s hearing had decreased since a 2012 evaluation. While the April 2015 testing did not include the Maryland CNC test, it is still consistent with the Veteran’s statements and calls into question the accuracy of the December 2014 VA examination. Additionally, a hearing evaluation from August 2016 performed as part of the Veteran’s VA treatment, indicated a pure tone threshold average of 82.5 decibels on the right and 71 on the left, and a speech discrimination score of 72 percent on the right and 80 on the left, which corresponds to a 20 percent disability rating pursuant to the rating schedule. While this testing was not of record at the time of the August 2015 rating decision, which implemented the rating reduction, it was of record at the time of the September 2017 supplementary statement of the case, but appears to have not been considered. Furthermore, the Veteran underwent another VA hearing examination in August 2017; as noted above, the results of this examination led to his rating being returned to 20 percent as of the date of that examination. (Continued on the next page)   In summary, a review of the record does not reflect improvement in the Veteran’s bilateral hearing loss disability from November 1, 2015, to August 9, 2017, including in his ability to function under ordinary conditions of life and work, actually occurred. Therefore, restoration of the 20 percent rating is warranted. A. ISHIZAWAR Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD R.Vemulapalli, Associate Counsel