Citation Nr: A25035246 Decision Date: 04/16/25 Archive Date: 04/16/25 DOCKET NO. 241108-490145 DATE: April 16, 2025 ORDER The reduction of the disability rating from 10 percent to 0 percent for bilateral hearing loss was improper; restoration of the 10 percent rating effective January 1, 2025 is granted. FINDINGS OF FACT 1. The 10 percent rating for the service-connected bilateral hearing loss had been in effect for less than five years. 2. The reduction from 10 percent to 0 percent for bilateral hearing loss was not based on evidence of improvement in the Veteran's ability to function under the ordinary conditions of life and work. CONCLUSION OF LAW The criteria for restoration of a 10 percent disability rating for bilateral hearing loss has been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.105. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Navy from October 1959 to October 1963. This matter comes before the Board of Veterans' Appeals (Board) from a November 2024 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO) under the modernized review system, or Appeals Modernization Act (AMA). In the November 2024 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), the Veteran elected the Direct Review docket. Therefore, the Board may only consider the evidence of record at the time of the November 2024 AOJ decision. 38 C.F.R. § 20.301. Any evidence submitted after the AOJ decision on appeal cannot be considered by the Board. 38 C.F.R. §§ 20.300, 20.301, 20.801. If the Veteran would like VA to consider any evidence that was submitted that the Board could not consider, the Veteran may file a Supplemental Claim (VA Form 20-0995) and submit or identify this evidence. 38 C.F.R. § 3.2501. If the evidence is new and relevant, VA will issue another decision on the claim, considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a Supplemental Claim are included with this decision. The reduction of the disability rating from 10 percent to 0 percent for bilateral hearing loss was improper; restoration of the 10 percent rating effective January 1, 2025 is granted. The Veteran contends that the rating reduction was unwarranted and, therefore, is requesting reinstatement of the prior 10 percent rating as of the date it was reduced. See October 2024 VA Form 10182, Notice of Disagreement. A rating reduction is the result of a course of action taken by the VA and not a claim by the Veteran. When the propriety of a rating decision is at issue, the focus is on the actions of the RO effectuating the reduction, both in terms of compliance with the special due process considerations applicable to reductions and in terms of whether the evidence at the time of the decision supports the reduction. In most cases, violation of the set of due process considerations applicable to rating reductions or failure of the evidence to meet the standards for reduction renders the underlying reduction void ab initio, rather than merely voidable. The burden of proof is on VA to establish that a reduction is warranted based upon the evidence. See Brown v. Brown, 5 Vet. App. 413 (1993). There are specific procedural requirements applicable to rating reductions. Where the reduction in evaluation of a service-connected disability or employability status is considered warranted and the lower evaluation would result in a reduction or discontinuance of the compensation payments currently being made, a rating proposing the reduction or discontinuance will be prepared setting forth all material facts and reasons. The beneficiary will be notified at his latest address of record of the contemplated action and furnished detailed reasons therefor and will be given 60 days for the presentation of additional evidence to show that compensation payments should be continued at their present level. Id. Additionally, the beneficiary must be notified as to the right to a predetermination hearing. 38 C.F.R. § 3.305 (i). If additional evidence is not received within that period, 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 beneficiary of the final rating action expires. 38 C.F.R. § 3.105 (e), (i)(2)(i). A rating reduction is not proper unless the Veteran's disability shows actual improvement in his ability to function under the ordinary conditions of life and work. See Faust v. West, 13 Vet. App. 342, 349 (2000) (noting that VA must review the entire history of the Veteran's disability, ascertain whether the evidence reflects an actual change in the disability, and ascertain whether the examination reports reflecting such change are based upon thorough examinations) (citing Brown v. Brown, 5 Vet. App. 413, 421 (1993)). By way of history, in an August 2013 rating decision the Veteran was awarded service connection for bilateral hearing loss with an evaluation of 0 percent effective April 9, 2012. In a May 2021 rating decision, the Veteran's evaluation for hearing loss was increased to 10 percent effective March 20, 2020. The Veteran filed a VA Form 20-0995 Supplemental Claim in May 2023 for an increased rating for his hearing loss and alleged his hearing had worsened. See May 2023 VA Form 21-4138, Statement in Support of Claim. The Veteran was afforded a VA examination in June 2023. Based on the results of that examination, the RO issued the October 2023 rating decision which proposed to decrease the evaluation of bilateral hearing loss from 10 percent disabling to 0 percent. However, with regards to the reduction of the Veteran's bilateral hearing loss, the Board notes that it is not clear whether the requirements pursuant to 38 C.F.R. § 3.105(e) were properly carried out by the RO. In this regard, the Veteran was notified of the proposed reduction in an October 2023 rating decision. In a November 2023 Statement in Support of Claim, the Veteran requested a pre-determination hearing regarding the proposed reduction. Although a July 2024 notification letter shows that the requested hearing was scheduled for September 2024, it is not clear that the hearing was actually held. Specifically, there are no notes or hearing testimony associated with the claims file regarding the hearing and the October 2024 rating decision that effectuated the reduction does not reference the September 2024 hearing, other than generally stating that the Veteran was "furnished [his] due process rights to include the right to a personal hearing and the right to submit additional evidence showing that such reduction should not be made." To the extent that the hearing was not held, there is no indication as to why (i.e. failure of the Veteran to appear, a request to reschedule, ect.). However, the Veteran has not contended nor indicated that his request for a hearing was not fulfilled. The next question to be addressed is whether, given the available evidence, a reduction from 10 percent disabling to 0 percent disabling was proper. Where a disability rating has been in effect less than 5 years, a rating reduction is warranted where reexamination of the disability discloses improvement of that disability. 38 C.F.R. § 3.344(c). For ratings in effect for 5 years or more, there are other specific requirements that must be met. 38 C.F.R. § 3.344(a), (b). However, the Veteran's 10 percent rating for bilateral hearing loss had been in effect for less than 5 years. The Court of Appeals for Veterans Claims (Court) has discussed principles applicable in all rating reduction cases, regardless of the rating level or the length of time that the rating has been in effect. In Brown v. Brown, the Court held that in order to effectuate a rating reduction, VA must ascertain: "(1) whether, based upon a review of the entire recorded history of the condition, the evidence reflects an actual change in the disability; (2) whether the examination reports reflecting such change are based upon thorough examinations; and (3) whether any improvement in the disability actually reflects an improvement in the veteran's ability to function under the ordinary conditions of life and work." 5 Vet. App. 413, 421 (1993) (internal quotations and citations omitted); see also Hedgepeth v. Wilkie, 30 Vet. App. 318, 323-24 (2018). Upon review of all the evidence of record, the Board finds that this rating reduction is void ab initio because 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." Brown, 5 Vet. App. at 421. The Veteran's VA examination in February 2021 showed an average puretone threshold of 48 Hz in the right ear and 59 Hz in the left ear. The Veteran's speech discrimination scores were 88 percent in the right ear and 70 percent in the left ear. The examiner noted the Veteran reported difficulties hearing when there is background noise and when multiple people are talking. See February 2021 Hearing Loss and Tinnitus Disability Benefits Questionnaire. The Veteran's VA examination in June 2023 showed an average puretone threshold of 50 Hz in the right ear and 59 Hz in the left ear. The Veteran's speech discrimination scores were 84 percent in the right ear and 84 percent in the left ear. The Veteran noted he had difficulty understanding speech when there is other noise, and he had difficulty hearing environmental noises. See June 2023 Hearing Loss and Tinnitus Disability Benefits Questionnaire. The Veteran's VA examination in September 2024 showed an average puretone threshold of 58 Hz in the right ear and 61 Hz in the left ear. The Veteran's speech discrimination scores were 84 percent in the right ear and 96 percent in the left ear. The examiner noted the Veteran's hearing loss effects the clarity of speech, especially when there is background noise, and the Veteran has to wear VA issued hearing aids. See September 2024 Hearing Loss and Tinnitus Disability Benefits Questionnaire. The Board finds that the reexamination of the Veteran's service-connected bilateral hearing loss did not disclose improvement. The Veteran still notes difficulties hearing, especially when there is background noise. Further, the Veteran's puretone thresholds actually show a decrease in hearing. The Board notes that the Veteran's left ear speech discrimination score has improve. However, the Board does not find this to show an improvement in his ability to function under the ordinary conditions of life and work. 38 C.F.R. § 3.344(c). Therefore, a rating reduction is not warranted, and this appeal is granted. Ann K. Minami Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Ho, Ashley M. 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.