93 Decision Citation: BVA 93-00023 Y93 BOARD OF VETERANS' APPEALS WASHINGTON, D.C. 20420 DOCKET NO. 90-53 306 ) DATE ) ) ) THE ISSUE Restoration of a 10 percent disability rating for a left ear hearing loss. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARINGS ON APPEAL The appellant ATTORNEY FOR THE BOARD R. M. Pelletier, Counsel INTRODUCTION The veteran served on active duty from June 1947 to June 1950. This matter came to the Board of Veterans' Appeals (Board) from rating decisions of the Department of Veterans Affairs (VA) San Francisco, California, Regional Office (RO). A rating action in April 1989 proposed to reduce the 10 percent disability rating for left ear hearing loss to a noncompensable evaluation. A notice of disagreement was received in May 1989. In September 1989, the veteran appeared and presented testimony before a hearing officer at the RO. In an October 1989 action, the hearing officer indicated that the veteran had not been provided with full due process notification. It was concluded that termination of the 10 percent disability rating could not be effectuated until the veteran had been notified in writing of the actual basis for the reduction and provided with an additional 60-day grace period. A letter containing this information was sent to the veteran in November 1989. In January 1990, the veteran appeared at a second hearing to present testimony concerning his hearing loss. In January 1990, the hearing officer concluded that the hearing loss was properly evaluated as noncompensable. In June 1990, the veteran appeared and presented testimony before a hearing officer at the San Diego, California, RO. In July 1990, the hearing officer concluded that no new evidence had been provided concerning the left ear hearing loss. A statement of the case was issued in August 1990. The substantive appeal was received in October 1990. The appeal was docketed at the Board in December 1990. The veteran's representative, the Disabled American Veterans, presented an informal brief to the Board in February 1991. In June 1991, the Board denied entitlement to a compensable evaluation for a left ear hearing loss. Following the Board's action, the veteran appealed the decision to the United States Court of Veterans Appeals (the Court). The Court, in Fugere v. Derwinski, 1 Vet.App. 103 (1990), held that the VA's attempted rescission of M21-1 (that is, the Department of Veterans Affairs Adjudication Procedure Manual), Part I, paragraph 50.13(b), which instructed VA rating boards not to reduce benefits for hearing loss where the reduction was due to changed criteria, without complying with the requirements of 5 U.S.C. §§ 552(a)(1) and 533 (1988) was "without observance of procedure required by law." The Court then remanded the Fugere appeal to the Board with the direction to reinstate the appellant's disability rating in accordance with paragraph 50.13(b). The VA appealed this case to the United States Court of Appeals for the Federal Circuit. On August 7, 1992, the Federal Circuit affirmed the Court's decision. On October 27, 1992, the Federal Circuit denied the VA's motion for a rehearing en banc of its August 7, 1992, decision. Concerning the case presently before the Board, in November 1991, the Court reversed and remanded the previous Board decision in light of Fugere. Consequently, the case is now once again before the Board for further adjudicatory action. CONTENTIONS OF APPELLANT ON APPEAL In essence, it is averred by the appellant that he was not properly advised by the VA that audiological testing performed on February 6, 1989, would be evaluated by new and different criteria. Furthermore, a letter from the Chief Benefits Director, dated in November 1988, which would have allowed him the opportunity to withdraw his claim prior to further processing, was not provided him until January 1990. It is averred that there has been a violation of the VA policy. 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 the restoration of a 10 percent evaluation for service-connected left ear hearing loss. FINDINGS OF FACT 1. By rating action in April 1989 the 10 percent evaluation for left ear hearing loss was reduced to 0 percent, based on a change in VA regulations. 2. No improvement in the service-connected hearing loss had been shown at the time of the April 1989 rating. CONCLUSION OF LAW Restoration of a 10 percent evaluation for service-connected left ear hearing loss is warranted. Department of Veterans Affairs Adjudication Procedure Manual, M21-1, paragraph 50.13(b); Fugere v Derwinski, 1 Vet.App. 103 (1990). REASONS AND BASES FOR FINDINGS AND CONCLUSION The veteran in this case seeks review of the April 1989 decision of the San Francisco, California, RO reducing the 10 percent evaluation for service-connected left ear hearing loss. In effect, it is argued that paragraph 50.13(b) of the VA's Adjudication Procedure Manual (M21-1) was changed to his detriment in violation of 5 U.S.C. §§ 552(a)(1) and 553 (1988) of the Administrative Procedure Act, in that he was not given notice and an opportunity to comment. The veteran was treated for left otitis media and hearing loss while on active duty, and was granted a 10 percent rating for his left high frequency hearing loss in 1974 based on reported pure tone thresholds of - 10, - 5 and 75 decibels at the frequencies of 500, 1000 and 2000 hertz, and under the regulatory criteria then in effect. At VA audiometric testing in February 1989, left ear pure tone thresholds were certified as 15, 70, 80 and 90 decibels at frequencies of 1000, 2000, 3000 and 4000 Hertz, with an average pure tone threshold of 64 decibels, and a discrimination ability of 60 percent. 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 service connected for a hearing loss were to be protected against a decrease in benefits if there had not been any change in the veteran's condition or disability. Paragraph 50.13(b) of the VA's Adjudication Procedure Manual, 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 VARO directors dated November 23, 1988, rescinded the protective manual paragraph. Such rescission had the effect of legitimizing a reduction in benefits for service-connected left ear defective hearing based solely upon revised schedular criteria, with no demonstrated clinical improvement in the veteran's service-connected hearing loss. The United States Court of Veterans Appeals, in Fugere found that, in deleting Manual paragraph 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 (1988). 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 paragraph 50.13(b) was "without observance of procedure required by law" and was, accordingly, to be held "unlawful and set aside" pursuant to 38 U.S.C.A. § 7261(a)(3)(D). In light of such holding, the provisions of paragraph 50.13(b) of the VA's Adjudication Procedure Manual (M21-1) must be considered to be a valid rule. Consequently, the reduction of the veteran's prior 10 percent evaluation for service-connected left ear hearing loss to 0 percent was in error, and the 10 percent rating must be reinstated. ORDER Restoration of a 10 percent disability rating for left ear hearing loss is granted, subject to those regulations governing the payment of monetary benefits. BOARD OF VETERANS' APPEALS WASHINGTON, D.C. 20420 * J. E. DAY (MEMBER TEMPORARILY ABSENT) SAMUEL W. WARNER (CONTINUED ON NEXT PAGE) *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.