Citation Nr: 20003756 Decision Date: 01/16/20 Archive Date: 01/15/20 DOCKET NO. 19-26 627 DATE: January 16, 2020 ORDER Restoration of a 50 percent rating for the service-connected bilateral hearing loss is granted. FINDINGS OF FACT 1. The 50 percent disability rating assigned for the service-connected bilateral hearing loss had been in effect for more than five years at the time of the reduction to 20 percent. 2. There was no sustained improvement demonstrated in the service-connected bilateral hearing loss disability that is reasonably certain to be maintained under the ordinary conditions of life. CONCLUSION OF LAW The reduction of the disability rating for the Veteran’s service-connected bilateral hearing loss from 50 percent to 20 percent was not proper, and the 50 percent rating is accordingly restored. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.105, 3.344, 4.85. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from July 1965 to July 1967. This matter comes on appeal before the Board of Veterans’ Appeals (Board) from a September 2018 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In December 2019, the Veteran testified before the undersigned Veterans Law Judge via videoconference hearing. A copy of the hearing transcript is of record and has been reviewed. The Board notes that new VA treatment records have been associated with the claims file after the July 2019 statement of the case. However, as this decision is a full grant of the benefit sought on appeal, there is no prejudice to the Veteran in proceeding with the adjudication of the claim. Additionally, the Veteran testified that he was satisfied with the 50 percent rating if such rating was restored. See December 2109 hearing transcript. Thus, whether a rating higher than 50 percent is warranted will not be addressed here. The Veteran is advised that if he wishes to pursue an increased rating claim in the future, he may submit such a claim on the appropriate VA-promulgated form. Restoration of a 50 percent rating for the service-connected bilateral hearing loss is granted. The provisions of 38 C.F.R. § 3.105(e) allow for the reduction in evaluation of a service-connected disability when warranted by the evidence, but only after following certain procedural guidelines. The RO must issue a rating decision proposing the reduction and setting forth all material facts and reasons for the reduction. The Veteran must then be given 60 days to submit additional evidence and to request a predetermination hearing. Then a rating action will be taken to effectuate the reduction. 38 C.F.R. § 3.105(e). The effective date of the reduction will be the last day of the month in which a 60-day period from the date of notice to the Veteran of the final action expires. 38 C.F.R. § 3.105(e), (i)(2)(i). The law provides for a presumption of regularity regarding processes and procedures throughout the VA administrative process. See generally, Marsh v. Nicholson, 19 Vet. App. 381, 386-87 (2005); Crain v. Principi, 17 Vet. App. 182, 186 (2003); Redding v. West, 13 Vet. App. 512, 515 (2000). However, the presumption of regularity is not absolute and may be rebutted by the submission of “clear evidence to the contrary.” Warfield v. Gober, 10 Vet. App. 483, 486 (1997). In this regard, the Court has held that the question of whether clear evidence exists to rebut the presumption of regularity is a question of law. See Crain v. Principi, 17 Vet. App. 182, 188 (2003). Clear evidence sufficient to rebut the presumption of regularity has been found when VA addressed communications to a wrong street name, wrong street number, or wrong zip code in circumstances indicating that such errors were consequential to delivery. See, e.g., Fluker v. Brown, 5 Vet. App. 296, 298 (1993); Piano v. Brown, 5 Vet. App. 25, 26-27 (1993) (per curiam); see also Crain, 17 Vet. App. at 188-89. If the Veteran succeeds in rebutting the presumption of regularity, the burden then shifts to VA to establish that regular administrative practices were, in fact, observed. See Ashley v. Derwinski, 2 Vet. App. 307, 309 (1992); Butler v. Principi, 244 F.3d 1337, 1340 (Fed.Cir.2001); see also Baxter v. Principi, 17 Vet. App. 407, 410 (2004). As an initial matter, a rating decision proposing a rating reduction from 50 percent to 20 percent for the bilateral hearing loss was sent to the Veteran on April 17, 2018. On May 31, 2018, the Veteran requested a predetermination hearing, citing that he did not receive the April 17, 2018 rating decision until May 15, 2018. As VA did not receive the request for hearing within 30 days of the April 17, 2018 proposed rating reduction, the RO did not afford him a predetermination hearing. However, other than the Veteran’s statements, no evidence was provided showing the date the Veteran received the proposed rating reduction or showing that the April 17, 2018 notice letter was mailed on a later date than noted. The Veteran does not assert that the notice was addressed incorrectly, and the letter was not returned to VA as undeliverable. Indeed, the Veteran, in fact, received the letter. Therefore, the presumption of regularity has not been rebutted with clear evidence to the contrary, and the Board presumes that VA’s administrative procedures, specifically the handling of mail, was followed. As to the procedural requirements under 38 C.F.R. § 3.105(e), the Board finds that they were properly carried out. In a letter dated April 17, 2018, the RO notified the Veteran of a proposed rating reduction. The Veteran provided additional evidence within 60 days, which was considered in the September 2018 rating decision, and his request for a predetermination hearing was not received within 30 days of the April 17, 2018 notice letter. Subsequently, the RO took final action to reduce the disability rating in a September 2018 rating decision, in which the rating was reduced from 50 to 20 percent, effective December 1, 2018. The RO informed the Veteran of this decision in an October 2018 letter. Thus, the procedural safeguards required under 38 C.F.R. § 3.105(e) were followed. Next, pursuant to 38 C.F.R. § 3.344(a), if a rating has been in effect for more than 5 years, as in this case, then rating agencies will handle cases of changes of medical findings or diagnosis so as to produce the greatest degree of stability of disability evaluations consistent with the laws and VA regulations governing disability compensation and pension. 38 C.F.R. § 3.344(a). In such cases, it is essential that the entire record of examination and the medical-industrial history be reviewed to ascertain whether the recent examination is full and complete, including all special examinations indicated as a result of general examination and the entire case history. Id. Examinations that are less thorough than those on which payments were originally based will not be used as a basis for reduction. Ratings for diseases subject to temporary or episodic improvement, such as epilepsy, asthma, ulcers, and many skin diseases, will not be reduced based on any one examination, except in those instances where all the evidence of record clearly warrants the conclusion that sustained improvement has been demonstrated. Moreover, where material improvement in the physical or mental condition is clearly reflected, the rating agency will consider whether the evidence makes it reasonably certain that the improvement will be maintained under the ordinary conditions of life. 38 C.F.R. § 3.344(a). The rating reduction was made effective on December 1, 2018. The 50 percent rating had been in effect since August 8, 2013, which is more than five years. Therefore, compliance with the provisions of 38 C.F.R. § 3.344 (a) is required. In this case, the RO based the reduction of the Veteran’s bilateral hearing loss disability on a single March 2018 VA audiology examination, rather than on the entire record of examinations and the medical-industrial history, as required by 38 C.F.R. § 3.344(a). Further, the Veteran has reported during the March 2018 VA examination, and subsequently, that he believes his bilateral hearing loss disability has worsened rather than improved. He has competently and credibly reported having difficulty hearing conversations, the television, and the radio, and he frequently asks others to repeat themselves. See March 2018 VA examination, October 2018 statements and October 2019 hearing transcript. He has also credibly reported that, without his hearing aids, he cannot understand anything said to him or around him. See May 2018 statement. The Board finds that the evidence does not show that there was sustained improvement demonstrated in the bilateral hearing loss disability that is reasonably certain to be maintained under the ordinary conditions of life. The protections under 38 C.F.R. § 3.344 apply. The reduction of the schedular disability rating from 50 percent to 20 percent for the bilateral hearing loss disability, in effect from December 1, 2018, was therefore not proper. Accordingly, the 50 percent rating for bilateral hearing loss is restored. S. B. MAYS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Harper, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.