Citation Nr: 21063198 Decision Date: 10/13/21 Archive Date: 10/13/21 DOCKET NO. 16-63 141 DATE: October 13, 2021 ORDER The rating reduction for bilateral hearing loss from 20 percent to a noncompensable rating was not proper and the 20 percent rating is restored, effective August 1, 2016. REMANDED A rating higher than 20 percent for bilateral hearing loss is remanded. FINDING OF FACT The evidence of record at the time the Veteran's bilateral hearing loss rating was reduced did not demonstrate sustained improvement in his ability to function 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 20 percent to a noncompensable rating was not proper and the 20 percent disability rating is restored from August 1, 2016. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.105(e), 3.321, 3.344, 4.1, 4.85, 4.86, Diagnostic Code 6100. REASONS FOR FINDING AND CONCLUSION The Veteran served on active duty from July 1985 to July 1989. In September 2012, the Veteran sought an increased rating for his bilateral hearing loss. A January 2015 rating decision continued the Veteran's 20 percent rating but stated that as improvement in the Veteran's condition had been indicated in a December 2014 VA examination, the Veteran would be subject to a future examination. An October 2015 rating decision proposed a reduction of the Veteran's hearing loss rating to a non-compensable (0%) amount based on a September 2015 VA examination and a May 2016 Rating Decision effectuated the rating reduction as of August 1, 2016. The Veteran disagreed with both the reduction and requested a higher evaluation. Thus, the Board will address the propriety of the reduction and also consider whether an increased rating is warranted. The Veteran testified before the undersigned Veterans Law Judge at a hearing in July 2021; a copy of the transcript is of record. Propriety of Reduction Under 38 C.F.R. § 3.105(e), 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. In addition, the RO 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 must 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. In this regard, the Board finds that the provisions of § 3.105(e) were followed the Veteran was notified of the proposed reduction in the October 2015 rating decision and had 60 days to provide additional evidence. Turning to the propriety of the reduction, at the time of the reduction the Veteran's 20 percent hearing loss rating had been in effect since 2006 so well over 5 years. In rating reduction cases dealing with ratings in effect for 5 years or more, VA benefits recipients are to be afforded greater protections. 38 C.F.R. § 3.344. Rating agencies will handle cases affected by change 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. These considerations apply to ratings that have continued for long periods at the same level (five years or more), and not to disabilities that have not become stabilized and are likely to improve. The various provisions of 38 C.F.R. § 3.344, pertaining to stabilization of disability ratings, apply. Ratings for disease subject to temporary or episodic improvement will not be reduced on the basis of any one examination, except in those instances where the evidence of record clearly warrants the conclusion that sustained improvement has been demonstrated. There are also several general VA regulations that apply to all rating reductions regardless of whether the rating has been in effect for five years or more. Brown v. Brown, 5 Vet. App. 413, 420-21 (1993). A VA rating reduction must be based upon review of the entire history of the Veteran's disability, reconciling any contrary findings into a consistent picture. See 38 C.F.R. § 4.2. VA must then consider whether the evidence reflects an actual change in the disability, and whether the examination reports reflecting such change are based upon thorough examinations. 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, 349 (2000); Brown v. Brown, 5 Vet. App. 413, 420-21 (1993). To warrant reduction in rating, it must be shown that the preponderance of the evidence supports the reduction itself, and with application of the benefit-of-the-doubt doctrine under 38 U.S.C. § 5107 (b) as required. See Brown, 5 Vet. App. at 420-21; Peyton v. Derwinski, 1 Vet. App. 282, 286 (1991). The burden of proof is on VA to establish that a reduction is warranted by a preponderance of the evidence. Kitchens v. Brown, 7 Vet. App. 320 (1995). After review of the evidence, the Board does not find that the Veteran's hearing loss disability was shown to have the required improvement necessary to support a reduction in his rating. At the outset, the Board notes that the hearing loss examinations conducted in 2014 and 2015 did show improvement in the Veteran's hearing and that the rating criteria established for rating hearing loss under Diagnostic Code 6100 was properly applied. The Board, however, does not find that the two examinations conducted within 9 months of each other established an improvement in the Veteran's hearing loss such to improve his ability to function under the ordinary conditions of life and work. The Board does not find that the two VA examinations conducted 9 months apart show the requisite sustained improvement in the Veteran's hearing loss necessary to satisfy the requirements of 38 C.F.R. § 3.344. Indeed, as noted by the October 2015 rating decision, the Veteran's two examinations show two different levels of hearing loss, indicating to the Board that the Veteran's hearing was in fluxion and that a sustained improvement was not established. As noted in the October 2015 rating decision, the Veteran's hearing loss based on the 2014 examination warranted a 10 percent rating, not a noncompensable one. Though the 2015 examination did indicate a noncompensable rating, there were no other hearing loss examinations which showed that the Veteran's hearing loss was at a noncompensable rating for any duration of time. A December 2015 VA record referenced in the Statement of the Case did not actually provide the results of the audiology examination to be considered by the criteria of Diagnostic Code 6100. Additionally, the Veteran did not report functional loss in his 2007 VA hearing loss examination which established his 20 percent rating but did report functional loss in both the 2014 and 2015 VA examinations, stating that he had difficulty hearing in conversation and was concerned about driving and hearing traffic noise. Finally, the Veteran submitted a statement in December 2015 which reported that the 2015 VA examination was inadequate, that the examiner instructed him to press the button even though he could not hear, and that his hearing had gotten worse. He also reiterated that he felt the 2015 examination was inadequate in his 2016 Notice of Disagreement. Considering all of the evidence, the Board is unable to find that the record established that the Veteran had such sustained improvement that his hearing loss warranted a noncompensable rating. The Board emphasizes that failure to consider and apply the provisions of 38 C.F.R. § 3.344, if applicable, renders a rating decision void ab initio. Such an omission is error and not in accordance with the law. See Greyzck, 12 Vet. App. at 292; see also Hayes v. Brown, 9 Vet. App. 67, 73 (1996). Accordingly, given the facts noted above, the 20 percent rating assigned for bilateral hearing loss is restored, effective August 1, 2016. REASONS FOR REMAND Higher Rating for Bilateral Hearing Loss The Veteran has not undergone a VA examination to assess the severity of his bilateral hearing loss since September 2015 and specifically not since the statements about the increase in the severity of his symptoms, including his 2021 hearing testimony. As such, the Board finds that remand is warranted for a current examination regarding the severity of the Veteran's bilateral hearing loss. The matter is REMANDED for the following action: (Continued on the next page) Schedule a VA examination to determine the current severity of the Veteran's bilateral hearing loss disability. The results of audiological testing must include, in numeric decibels, the puretone thresholds at 1000, 2000, 3000, and 4000 Hertz and must provide the speech recognition scores using the Maryland CNC test. The audiologist must also describe the effect of the Veteran's hearing loss on his occupational functioning and daily activities. The Veteran's July 2021 hearing testimony should be considered. JOHN Z. JONES Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Parrish, 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.