Citation Nr: 21002696 Decision Date: 01/14/21 Archive Date: 01/14/21 DOCKET NO. 19-30 293 DATE: January 14, 2021 ORDER Entitlement to a restoration of a 50 percent rating for bilateral hearing loss is granted, effective June 1, 2017. FINDING OF FACT The reduction of the Veteran’s 50 percent disability rating for bilateral hearing loss to 40 percent was improper. CONCLUSION OF LAW The criteria for restoration of the Veteran’s 50 percent rating for bilateral hearing loss have been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.105(e), 3.344, 4.1, 4.3, 4.7, 4.85, Diagnostic Code 6100. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 1954 to July 1957. The matter comes before the Board of Veterans’ Appeals (Board) on appeal from a March 2017 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge (VLJ) in November 2020. The hearing transcript is of record. The Veteran has appealed the reduction of his bilateral hearing loss from 50 percent to 40 percent, which became effective June 1, 2017. The Board finds that the reduction was improper and will restore his 50 percent rating for bilateral hearing loss. At the hearing, it was clarified that the disagreement on appeal was as to reduction only and there is not a contention of increased rating. As the Veteran’s 50 percent rating for bilateral hearing loss was in effect for less than five years prior to reduction, the provisions of 38 C.F.R. § 3.344(c) are applicable. Where a rating has been in effect for less than five years, reduction is warranted where an adequate examination shows actual improvement in a veteran’s ability to function under the ordinary conditions of life and work. Faust v. West, 13 Vet. App. 342, 350 (2000); see also 38 C.F.R. § 3.344(c). The Board finds the evidence on which the reduction was based does not support the reduction. In these types of cases, VA must establish, by a preponderance of evidence, that the rating reduction was warranted. Brown v. Brown, 5 Vet. App. 413, 421 (1993); Kitchens v. Brown, 7 Vet. App. 320, 324 (1995). A reduction in rating must be based upon review of the entire history of the disability. Brown, 5 Vet. App. at 420; see also 38 C.F.R. §§ 4.1, 4.2, 4.10. VA must then ascertain whether the evidence reflects an actual change in the disability and whether the examination reports reflecting such change are based on thorough and adequate examinations. Faust v. West, 13 Vet. App. 342, 349 (2000). Finally, it must be determined whether the improvement actually reflects an improvement in the veteran’s ability to function under the ordinary conditions of life and work. Brown, 5 Vet. App. at 421. Here, upon review of the evidence, the Board finds that the reduction was not proper as the as the RO did not address whether there was “an actual improvement in the Veteran’s ability to function under the ordinary conditions of life and work.” Id. Rather, the RO noted that the results of hearing testing had improved. Review of the March 2017 rating decision that announced the reduction demonstrates that the RO analyzed the issue of whether a reduction of evaluation was warranted in the same manner as it would have for a claim for an increased rating. The rating decision indicates that the results of the July 2016 VA examination showed that a reduction was warranted based on findings that his hearing had improved. This determination, however, does not address whether the evidence shows an actual improvement in the Veteran’s ability to function. The preponderance of the evidence does not show this to be the case. VA treatment records indicate that the Veteran did not experience an actual improvement, but rather continued to struggle with the impact of hearing loss. An August 2014 VA treatment record indicates the Veteran reported struggling significantly to hear his family and church pastor. A July 2015 VA treatment record indicates the Veteran inquired about upgrading his hearing aids and reported that his hearing had worsened. An August 2015 VA treatment record includes a clinician’s note that new hearing aids were recommended due to the Veteran’s degree of hearing loss. A September 2015 VA treatment record indicates that the Veteran was fitted for new hearing aids, and that results of pure tone testing revealed stable results as compared to previous ones from September 2014. A May 2016 VA treatment record indicates that the Veteran reported during a hearing aid check that he continued to have difficulty hearing the television and church. A June 2016 VA treatment record indicates that the Veteran reported being unable to hear anything out of his left ear. The July 2016 VA examiner noted that the Veteran wore VA-issued hearing aids and that the hearing loss impacted the ordinary conditions of daily life, including the ability to work. However, the July 2016 VA examination does not include a description of the impact of the Veteran’s hearing loss impact on the ordinary conditions of daily life and work in the Veteran’s own words. The Veteran subsequently and proximately in time reported that he experienced significant difficulty hearing and understanding speech in all listening situations; often asked people to repeat themselves multiple times; listened to media at loud volumes; had difficulty hearing on the phone even with hearing aids; and had trouble hearing church services. See April 2017 private audiological examination notes. It is therefore arguable that the July 2016 VA examination, upon which the reduction was based, is complete and thorough. In sum, the evidence does not show that the improvement in his hearing tests resulted in an actual improvement in his ability to function under the ordinary conditions of life and work. Decisions by that do not apply the provisions of 38 C.F.R. § 3.344, when applicable, are void ab initio (i.e., at their inception). Brown, 5 Vet. App. at 413; see also Hayes v. Brown, 9 Vet. App. 67, 73 (1996). As these were not properly considered here when the rating for hearing loss was reduced, the reduction is void. The appropriate remedy is to restore the 50 percent rating. See Hayes, 9 Vet. App. at 73. Nathaniel J. Doan Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Minaya, 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.