Citation Nr: 21077197 Decision Date: 12/28/21 Archive Date: 12/28/21 DOCKET NO. 11-16 283 DATE: December 28, 2021 ORDER The reduction of the evaluation from 10 percent to a noncompensable rating for hearing loss of the left ear, effective July 1, 2013, was not proper. REMANDED Entitlement to a rating in excess of 10 percent for hearing loss of the left ear is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities is remanded. FINDINGS OF FACT 1. The Veteran was provided proper notice of the proposed reduction; the rating reduction was thereafter implemented in an April 2013 rating decision, effective July 1, 2013. 2. The 10 percent rating assigned for hearing loss of the left ear was in effect for more than five years, and at the time of the reduction the evidence does not demonstrate that at the time the Agency of Original Jurisdiction (AOJ) reduced the 10 percent rating assigned for hearing loss of the left ear, there had been material improvement in that disability. CONCLUSION OF LAW The April 2013 reduction of the 10 percent rating to a noncompensable rating for hearing loss of the left ear was not proper. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.105(e), 3.344, 4.1, 4.2, 4.3, 4.7, 4.10, 4.21, 4.85, Diagnostic Code 6100. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran had active military service from October 1972 to October 1974. This matter came before the Board of Veterans' Appeals (Board) on appeal from December 2010 (TDIU), October 2011 (hearing loss), and April 2013 (reduction) rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO). In March 2021, the Veteran and his son testified at a Board hearing. A transcript of the hearing is associated with the claims file. By way of background, in a November 2012 rating decision, the Department of Veterans Affairs (VA) Regional Office (RO) proposed to decrease his disabling rating from 10 percent to a noncompensable rating for his service-connected hearing loss of the left ear. In April 2013, the RO decreased the Veteran's rating from 10 percent to a noncompensable rating, effective July 1, 2013. In July 2014, the Board denied his claim for increased rating for hearing loss of the left ear prior to July 1, 2013, denied his claim for increased rating for his tinnitus, remanded the issue of whether the reduction of his hearing loss was proper, remanded the issue of entitlement to service connection for a low back disability, and remanded the issue of entitlement to a TDIU. During the appeal process, in a June 2015 rating decision, the RO granted service connection for his low back disability. In July 2019, the Board remanded the claims for reduction and TDIU for further development. Reduction 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. When a reduction in the rating of a service-connected disability is contemplated and the lower rating would result in a reduction or discontinuance of compensation payments, a rating proposing the reduction or discontinuance will be prepared setting forth all material facts and reasons. First there must be a rating action proposing the reduction and giving the veteran 60 days to submit additional evidence and request a predetermination hearing. If a hearing is not requested, and reduction is considered to be still warranted, a rating action will be taken to effectuate the reduction. 38 C.F.R. § 3.105(e), (i)(2). 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). In this case, the RO followed proper procedure in reducing the assigned rating for the Veteran's service-connected hearing loss of the left ear. He underwent VA examinations in February 2011, March 2012, November 2012, and the subsequent November 2012 rating decision proposed to reduce the assigned rating. A November 2012 notification letter for that rating decision informed him that he had 60 days in which to submit evidence, and of his right to request a predetermination hearing. Thereafter, the proposed reduction was effectuated by the April 2013 rating decision, effective from July 1, 2013, which is consistent with the requirement that 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. Inasmuch as the RO followed proper procedure, the Veteran was not entitled to the benefit sought on appeal on that basis. The Board must now address whether the competent evidence warranted a reduction in the assigned rating. In considering the propriety of a reduction, the Board will consider the evidence of record available to the RO at the time the reduction was effectuated, although post-reduction medical evidence may be considered for the purpose of determining whether the condition has demonstrated actual improvement. Dofflemyer v. Derwinski, 2 Vet. App. 277, 281-82 (1992). Care must be taken, however, to ensure that a change in an examiner's evaluation reflects an actual change in the veteran's condition, and not merely a difference in the thoroughness of the examination or in descriptive terms, when viewed in relation to the prior disability history. In addition, it must be determined that an improvement in a disability has actually occurred, and that such improvement actually reflects an improvement in the veteran's ability to function under the ordinary conditions of life and work. 38 C.F.R. §§ 4.1, 4.2, 4.13; see also Brown v. Brown, 5 Vet. App. 413, 420-22 (1993); Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). Reexaminations disclosing improvement, physical or mental, in these disabilities will warrant reduction in rating. 38 C.F.R. § 3.344(c). In this case, the provisions of 38 C.F.R. § 3.344(a) are applicable, as the disability rating for the Veteran's hearing loss of the left ear had been in effect for more than 5 years. Following a review of the evidence, the Board finds that the reduction in the rating for hearing loss of the left ear from 10 percent to a noncompensable rating, effective July 1, 2013, was not proper. A review of the records shows that the Veteran was afforded VA examinations in February 2011, April 2011, March 2012, November 2012, January 2015, and March 2020. In the February 2011 VA examination, he reported that he was exposed to noise from field artillery without hearing protection and that he worked in construction without any use of hearing protection both prior to and after the military. On examination, he exhibited an average decibel level reading of 96.25 (rounded to 96) and 60 percent speech discrimination score of the left ear. Based on these findings, using Table VI, he has Level VIII and using Table VIa he has Level IX hearing of his left ear. Pursuant to § 4.85(f), his non-service-connected right ear is assigned Level I. Applying these results to Table VII and Table VIa indicates that a noncompensable rating is warranted. Notably, the examiner wrote that the test results are inconsistent and should not be used for rating purposes as the Veteran was able to communicate with the examiner when the examiner spoke in a normal speaking voice prior to and post testing, including when the examiner was standing behind the Veteran's back. In the March 2012 VA examination, he exhibited an average decibel level reading of 71 and 96 percent speech discrimination score of the left ear. Based on these findings, using Table VI, he had Level II and using Table VIa he has Level VI hearing in the left ear. Pursuant to § 4.85(f), his non-service-connected right ear is assigned Level I. Applying these results to Table VII indicates that a noncompensable rating is warranted. In the November 2012 VA examination, he exhibited an average decibel level reading of 71 and 96 percent speech discrimination score of the left ear. Based on these findings, using Table VI, he has Level II and using Table VIa he has Level VI hearing in the left ear. Pursuant to § 4.85(f), his non-service-connected right ear is assigned Level I. Applying these results to Table VII indicates that a noncompensable rating is warranted. In the January 2015 VA examination, he exhibited an average decibel level reading of 69 and 96 percent speech discrimination score of the left ear. Based on these findings, using Table VI, he has Level II and using Table VI he has level V hearing in the left ear. Pursuant to § 4.85(f), his non-service-connected right ear is assigned Level I. Applying these results to Table VII indicates that a noncompensable rating is warranted. In the April 2020 VA examination, he exhibited an average decibel level reading of 63.75 (rounded to 64) and 94 percent speech discrimination score of the left ear. Based on these findings, using Table VI, he has Level II and using Table VIa he has Level V hearing in the left ear. Pursuant to § 4.85(f), his non-service-connected right ear is assigned Level I. Applying these results to Table VII indicates that a noncompensable rating is warranted. In the April 2020 VA addendum opinion, the examiner stated that based on all the hearing examinations from 2002 to present the 2002 and 2011 hearing examinations are not a true representation of the Veteran's hearing loss. The hearing examinations in 2012, 2015, and 2020 are consistent with each other and a more accurate representation of the Veteran's true hearing acuity. Therefore, the Veteran's hearing has not materially improved, rather rating was based on an unreliable exam. The Board concludes that the RO's reduction in rating for hearing loss of the left ear was not proper, as the preponderance of the evidence at the time of the reduction demonstrated that the Veteran's hearing loss of the left ear did not improve. The records do not support a finding of improvement. As such, the Board finds that the preponderance of the evidence does not support the reduction in the evaluation assigned for the Veteran's hearing loss of the left ear. REASONS FOR REMAND 2. From July 1, 2013, entitlement to a rating in excess of 10 percent for hearing loss of the left ear is remanded. 3. Entitlement to a TDIU is remanded. In a December 2015 VA treatment record, the Veteran reported that he was receiving Social Security Disability. See October 2017 CAPRI. Records from Social Security Administration (SSA) are not associated with the file. As such, the Board finds that a remand is warranted as it may be pertinent to his claim for TDIU. The matters are REMANDED for the following action: 1. Obtain any outstanding VA treatment records and any identified private treatment records. 2. Obtain relevant SSA records regarding his Social Security Disability. (Continued on the next page) 3. After the above development has been completed, schedule the Veteran for a VA examination to evaluate the current severity of his hearing loss. 4. Thereafter, readjudicate the claims on appeal, to include the claim for TDIU. S. HENEKS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board P. Noh, 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.