Citation Nr: 20072467 Decision Date: 11/10/20 Archive Date: 11/10/20 DOCKET NO. 19-28 965A DATE: November 10, 2020 ORDER The reduction in rating from 20 percent to 0 percent, effective from November 27, 2018, for bilateral hearing loss was improper and the 20 percent rating is restored. REMANDED Entitlement to a rating in excess of 20 percent for bilateral hearing loss is remanded. Entitlement to service connection for a lumbar spine disability is remanded. Entitlement to service connection for a left hip disability is remanded. FINDINGS OF FACT 1. The reduction in the rating for bilateral hearing loss from 20 percent to 0 percent, effective from November 27, 2018, did not result in a reduction or discontinuance of compensation payments that were being made; therefore, the notice provisions of the regulation governing compensation rating reductions do not apply. 2. The 20 percent rating for bilateral hearing loss was in effect for less than five years at the time of the December 2018 VA rating decision that decreased the evaluation to 0 percent, effective November 27, 2018. 3. The reduction of the disability rating for bilateral hearing loss from 20 percent to 0 percent failed to comply with applicable law and regulations. CONCLUSION OF LAW 1. The reduction in rating from 20 percent to 0 percent, effective from November 27, 2018, for bilateral hearing loss was improper and is therefore restored. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.1, 4.2, 4.6, 4.10, 4.13, 4.85, Diagnostic Code 6100 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served honorably in the United States Army from April 1958 to April 1960. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a December 2018 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, Puerto Rico. Propriety of the reduction from 20 percent to 0 percent, effective from November 27, 2018, for bilateral hearing loss Historically, a September 2015 Board decision granted service connection for the Veteran’s bilateral hearing loss disability; this decision was implemented by the RO in an April 2016 rating decision, which assigned a noncompensable rating, effective August 12, 2011. Thereafter, the Veteran filed a claim for increase in June 2016. Following examination in October 2016, the Veteran’s rating was increased to 20 percent, by means of a December 2016 rating decision, effective June 8, 2016. The Veteran again filed a claim for increase in October 2018. Subsequently, following examination in November 2018, the Veteran’s rating was decreased to noncompensable in a December 2018 rating decision. The effective date of the reduction was given as November 27, 2018, the date upon which the Veteran had been examined. 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, and the AOJ must notify the Veteran that he has 60 days to present additional evidence showing that compensation should be continued at the present level. The Veteran is also to be informed that he may request a predetermination hearing, provided that the request is received by VA within 30 days from the date of the notice. If no additional evidence is received within the 60-day period and no hearing is requested, final rating action will be taken and the award will be reduced or discontinued effective the last day of the month in which a 60-day period from the date of notice to the Veteran expires. 38 C.F.R. § 3.105(e). The provisions of 38 C.F.R. § 3.105(e) do not apply where there is no reduction in the amount of compensation payable. A reduction in evaluation with no corresponding in compensation does not meet the criteria of 38 C.F.R. § 3.105(e). VAOPGCPREC 71-91 (Nov. 1991). Prior to the December 2018 VA rating decision, the Veteran’s combined rating for service-connected disability was 60 percent from June 8, 2016. The reduction of the rating for bilateral hearing loss from 20 percent to 0 percent, effective November 27, 2018 did not negatively affect the combined rating, as it remained at 60 percent from June 8, 2016. As there was no reduction in the overall compensation paid to the Veteran, the due process requirements of 38 C.F.R. § 3.105(e) do not apply. The analysis thus proceeds to whether the reduction was factually warranted. 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). 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, 1 Vet. App. at 589. As noted above, a rating of 20 percent was assigned for bilateral hearing loss effective from June 8, 2016. See 38 C.F.R. § 4.85, Diagnostic Code 6100. In the December 2018 VA rating decision, the 20 percent disability rating for bilateral hearing loss was decreased to 0 percent, effective from November 27, 2018. Id. Therefore, the 20 percent rating was in effect from June 8, 2016 to November 27, 2018, which is less than five years; therefore, the provisions of 38 C.F.R. § 3.344(a) and (b) do not apply in this case. Regardless, 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 the Veteran’s ability to function under the ordinary conditions of life and work. See Faust v. West, 13 Vet. App. 342 (2000). The AOJ did not make this finding; therefore, the reduction was improper, and the 20 percent rating is restored. REASONS FOR REMAND 1. Entitlement to a rating in excess of 20 percent for bilateral hearing loss is remanded. The Veteran has alleged that his bilateral hearing loss disability has worsened in severity since his last examination which was in October 2019. See January 2020 Application for Disability Compensation, VA Form 21-526EZ. VA’s duty to assist requires affording the Veteran a new VA examination in order to accurately assess the current level of impairment when there is evidence that the disability may have worsened in severity. Snuffer v. Gober, 10 Vet. App. 400, 402-03 (1997). In light of the Veteran’s contentions that his disability has worsened and is manifested by more severe symptoms than previously recorded, a new examination to evaluate the severity of the Veteran’s bilateral hearing loss disability is warranted. 2. Entitlement to service connection for a lumbar spine disability is remanded. 3. Entitlement to service connection for a left hip disability is remanded. The Veteran’s VA treatment records reveal complaints of left hip pain and a diagnosis of lumbar spondylosis. In his October 2018 supplemental claim, VA Form 21-526b, the Veteran asserted service connection for low back and a left hip problem related to low back, both as related to his artillery MOS specifically in relation to heavy lifting. In light of the Veteran’s contentions and his VA treatment records, the Board finds that the low threshold under McLendon is met in this case and a VA examination should be obtained to adequately decide the merits of the claim. McLendon, 20 Vet. App. at 83. The matters are REMANDED for the following actions: 1. Schedule the Veteran for a VA audiological examination to assess the current severity of his service-connected hearing loss. The Veteran’s electronic file and a copy of this remand should be made available to the examiner for review. Any indicated audiological studies should be performed and the results should be reported in detail. If audiometric testing is unable to be performed or if the test results are unreliable, the examiner must clearly explain the reasons why the testing could not be completed or the examination results are to be considered unreliable. 2. Schedule the Veteran for VA hip and spine examinations by an appropriate clinician to determine the nature and etiology of any hip and spine disabilities. The entire claims file should be sent to, and reviewed by the examiner. The examiner should take a history from the Veteran as to the progression of his hip and spine disabilities. After review of the record, interview and examination of the Veteran, the examiner should respond to the following: (a.) Please clarify all disabilities affecting the Veteran’s left hip and spine. (b.) For each disability identified, is it at least as likely as not (50 percent or greater probability) that such disability had onset in, or is otherwise related to his period of active duty service, to specifically include heavy lifting associated with his artillery MOS. (c.) Whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s spine disability was proximately due to or the result of any current left hip disability. (d.) Whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s disability was aggravated beyond its natural progression by any current left hip disability. The examiner must provide all findings, along with a complete rationale for his or her opinion(s) in the examination report. If any of the above requested opinions cannot be made without resort to speculation, the examiner must state this and provide a rationale for such conclusion. 3. Then, readjudicate the issues on appeal. T. Blake Carter Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Hennessy, 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.