92 Decision Citation: BVA 92-29004 Y92 BOARD OF VETERANS' APPEALS WASHINGTON, D.C. 20420 DOCKET NO. 90-45 351 ) DATE ) ) ) THE ISSUE Entitlement to restoration of a compensable rating for bilateral hearing loss. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The appellant ATTORNEY FOR THE BOARD Stephen F. Sylvester, Counsel INTRODUCTION This matter once again comes before the Board of Veterans' Appeals (the Board) on REMAND from the United States Court of Veterans Appeals (the Court). In a decision in December 1990, the Board denied entitlement to an increased rating for service-connected bilateral defective hearing, and, in so doing, affirmed the rating action of the regional office (RO) reducing the veteran's prior 10 percent evaluation for service-connected bilateral hearing loss to a noncompensable rating. The Court, in Fugere v. Derwinski, 1 Vet.App. 103 (1990), held that the Department of Veterans Affairs (VA) attempted rescission of M21-1 (that is, the VA's Adjudication Procedure Manual), Part I, para. 50.13(b), which instructed VA rating boards not to reduce benefits for hearing loss where the reduction is due to changed criteria, without complying with the requirements of 5 U.S.C. §§ 552(a)(1) and 553 was "without observance of procedure required by law." The Court then remanded the case to the Board with the direction to reinstate the appellant's disability rating in accordance with para. 50.13(b). On August 7, 1992, the United States Court of Appeals for the Federal Circuit affirmed the Court's decision in Fugere v. Derwinski, 1 Vet.App. 103 (1990). On October 27, 1992, the United States Court of Appeals for the Federal Circuit denied the Secretary of Veterans Affairs' request for an en banc rehearing of its August 7, 1992, decision. Subsequently, in November 1992, the Office of the General Counsel, Department of Veterans Affairs, advised the Under Secretary for Benefits, Department of Veterans Affairs, that further review of this case would not be sought. Consequently, the case is now before the Board for implementation of the Fugere guidelines. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that the RO committed error in denying entitlement to an increased rating for service-connected bilateral defective hearing. Specifically, it is argued that the action of the RO reducing the veteran's 10 percent evaluation for service-connected bilateral defective hearing to a noncompensable rating was in violation of and contrary to the provisions set forth in para. 50.13(b) of the Adjudication Procedure Manual (M21-1) of the VA. DECISION OF THE BOARD In accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991), following review and consideration of all evidence and material of record in the veteran's claims file, and for the following reasons and bases, it is the decision of the Board that the record supports a 10 percent evaluation for service-connected bilateral defective hearing. FINDING OF FACT The RO reduced the evaluation of the veteran's service- connected bilateral hearing loss from 10 percent to a noncompensable rating based solely on a change in rating criteria and not on any showing of auditory improvement. CONCLUSION OF LAW Restoration of a 10 percent evaluation for service-connected bilateral defective hearing is warranted. 5 U.S.C. §§ 552(a)(1), 553 (1988); 38 U.S.C.A. § 7261(a)(3)(D) (West 1991); 38 C.F.R. §§ 1.12, 1.551(c) (1991); Fugere v. Derwinski, 1 Vet.App. 103 (1990), aff'd, 972 F.2d 331 (Fed. Cir. 1992); Department of Veterans Affairs Adjudication Procedure Manual, M21-1, para. 50.13(b). REASONS AND BASES FOR FINDING AND CONCLUSION The veteran in this case seeks review of the denial of restoration of a compensable rating for bilateral defective hearing. The veteran argues that para. 50.13(b) of the VA Adjudication Procedure Manual (M21-1) was changed to his detriment in violation of 5 U.S.C. §§ 552(a)(1) and 553 (1988), in that he was not given notice and an opportunity to comment. Effective in December 1987, new criteria for the evaluation of service-connected defective hearing were established by the VA. Despite the adoption of such new rating criteria and testing methods, veterans were to be protected against a decrease in benefits if there had not been improvement in the veteran's condition or disability. Paragraph 50.13(b) of M21-1 specifically provided the following direction to adjudicators: "Changed Criteria. If the decrease in evaluation is due to changed criteria or testing methods, rather than a change in disability, apply the old criteria and make no reduction." Notwithstanding the aforementioned, the VA Chief Benefits Director, by an internal memorandum to the RO Directors dated November 23, 1988, rescinded the protective manual paragraph. Such rescission had the effect of legitimizing a reduction in benefits for service-connected bilateral defective hearing based solely upon revised schedular criteria, with no demonstrated clinical improvement in the veteran's service-connected hearing loss. The Court, in Fugere v. Derwinski, 1 Vet.App. 103 (1990), aff'd. 972 F.2d 331 (Fed. Cir. 1992), found that, in deleting Manual para. 50.13(b) without giving notice or an opportunity to comment, the VA had failed to comply with the requirements of 5 U.S.C. §§ 552(a)(1) and 553. Such compliance was required by 38 C.F.R. §§ 1.12 and 1.551(c). The Court therefore held that the attempted rescission of Manual para. 50.13(b) was "without observance of procedure required by law" and was, accordingly, to be held "unlawful and set aside" pursuant to what is now 38 U.S.C.A. § 7261(1)(3)(D). In light of such holding, the pre-November 23, 1988, provisions of para. 50.13(b) of the VA's Adjudication Procedure Manual (M21-1) must be considered to be a valid rule. Consequently, the 10 percent evaluation previously assigned for the veteran's bilateral defective hearing must be reinstated. ORDER Restoration of a 10 percent rating for service-connected bilateral hearing loss is granted, subject to the regulations governing the award of monetary benefits. (CONTINUED ON NEXT PAGE) BOARD OF VETERANS' APPEALS WASHINGTON, D.C. 20420 * GEORGE R. SENYK BRUCE E. HYMAN *38 U.S.C.A. § 7102(a)(2)(A) (West 1991) permits a Board of Veterans' Appeals Section, upon direction of the Chairman of the Board, to proceed with the transaction of business without awaiting assignment of an additional Member to the Section when the Section is composed of fewer than three Members due to absence of a Member, vacancy on the Board or inability of the Member assigned to the Section to serve on the panel. The Chairman has directed that the Section proceed with the transaction of business, including the issuance of decisions, without awaiting the assignment of a third Member. NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991), a decision of the Board of Veterans' Appeals granting less than the complete benefit, or benefits, sought on appeal is appealable to the United States Court of Veterans Appeals within 120 days from the date of mailing of notice of the decision, provided that a Notice of Disagreement concerning an issue which was before the Board was filed with the agency of original jurisdiction on or after November 18, 1988. Veterans' Judicial Review Act, Pub. L. No. 100-687, § 402 (1988). The date which appears on the face of this decision constitutes the date of mailing and the copy of this decision which you have received is your notice of the action taken on your appeal by the Board of Veterans' Appeals.