93 Decision Citation: BVA 93-02844 Y93 BOARD OF VETERANS' APPEALS WASHINGTON, D.C. 20420 DOCKET NO. 89-43 331 ) DATE ) ) ) THE ISSUES 1. Entitlement to restoration of a 40 percent disability evaluation for bilateral mixed hearing loss. 2. Entitlement to an evaluation in excess of 40 percent for bilateral mixed hearing loss. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD L. Gottfried, Counsel INTRODUCTION The appellant had active military service from February 1943 to February 1946. This case came before the Board of Veterans' Appeals (hereinafter Board) on appeal from a January 1989 rating decision by the Department of Veterans Affairs (hereinafter VA) Los Angeles, California, Regional Office (hereinafter RO), which reduced the appellant's disability evaluation for his service-connected bilateral mixed hearing loss from 40 percent to 20 percent, effective April 1, 1989. The notice of disagreement was received in February 1989. The statement of the case was issued in March 1989. The veteran's substantive appeal was received in March 1989. After the case was received and docketed at the Board, it was referred to the appellant's representative, Disabled American Veterans, who submitted a statement in support of the appellant's claim in January 1990. In a March 1990 decision, the Board denied the appellant's claim of entitlement to an evaluation in excess of 20 percent for bilateral mixed hearing loss. He appealed that decision to the United States Court of Veterans Appeals (hereinafter Court) in July 1990. The Court, in a May 1991 order, reversed the March 1990 Board decision, and remanded the case to the Board with instructions to reinstate the appellant's 40 percent rating from the effective date of the reduction. The Court stated the date of reduction as January 12, 1989, but the record shows that the date of reduction was actually April 1, 1989; January 12, 1989, was the date of the RO rating decision which reduced the disability evaluation effective from April 1, 1989. The Court's reversal action was taken in view of action that had been taken in Fugere v. Derwinski, 1 Vet.App. 103 (1990). Subsequent to the Court's May 1991 order, the case was stayed at the Board under authority recognized in Tobler v. Derwinski, 2 Vet.App. 8 (1991), pending the appeal of the Fugere decision by the United States Department of Justice to the United States Court of Appeals for the Federal Circuit. In August 1992, the United States Court of Appeals for the Federal Circuit affirmed the Court's decision. Fugere v. Derwinski, 972 F.2d 331 (Fed. Cir. 1992). In October 1992, the United Court of Appeals for the Federal Circuit denied the request by the Secretary of the VA for a rehearing en banc. In November 1992, the General Counsel for the VA decided not to pursue an appeal of the Fugere decision to the United States Supreme Court. CONTENTIONS OF APPELLANT ON APPEAL The appellant asserts that the RO committed error in its January 1989 rating decision when it reduced the disability evaluation for his service-connected bilateral mixed hearing loss from 40 to 20 percent. He argues that such a reduction was precluded by M21-1, Part 1, Paragraph 50.13(b). The veteran has referred to ongoing significant hearing problems. DECISION OF THE BOARD In accordance with the decision of the Court in Fugere, and its affirmance by the United States Court of Appeals for the Federal Circuit, it is the decision of the Board that the January 1989 rating decision erroneously reduced the appellant's disability evaluation for his bilateral mixed hearing loss. Therefore, a 40 percent evaluation is restored. 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 appellant's claims file, and for the following reasons and bases, it is the decision of the Board that the preponderance of the evidence is against entitlement to a disability evaluation in excess of 40 percent for bilateral mixed hearing loss. FINDINGS OF FACT 1. The reduction of the appellant's 40 percent disability evaluation for bilateral mixed hearing loss to 20 percent, by a January 1989 rating decision, was improper. 2. Bilateral mixed hearing loss is manifested by hearing acuity levels of VII in the right ear and III in the left ear. CONCLUSIONS OF LAW 1. A 40 percent evaluation is warranted for bilateral mixed hearing loss. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 4.85, 4.87, Diagnostic Code 6288 (effective prior to December 18, 1987); Fugere v. Derwinski, 1 Vet.App. 103 (1990). 2. The schedular criteria for a disability evaluation in excess of 40 percent for bilateral mixed hearing loss are not met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 4.85, 4.87, Diagnostic Code 6102 (1991). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The provisions of 38 U.S.C.A. § 5107(a) have been met, in that the appellant's claim is well grounded and adequately developed. I. Restoration of a 40 Percent Evaluation For Bilateral Mixed Hearing Loss Prior to the January 1989 rating decision, the appellant's bilateral mixed hearing loss was rated 40 percent disabling, based on the criteria in 38 C.F.R. §§ 4.85, 4.87, Diagnostic Code 6288, which was in effect at the time of a July 1977 rating decision that increased the evaluation from 10 percent to 40 percent. The January 1989 rating decision, which reduced the evaluation to 20 percent, was based on the findings of a VA audiometric evaluation conducted in December 1988 as applied to new rating criteria and testing methods for bilateral defective hearing which had become effective December 18, 1987. However, a provision in the VA's Adjudication Procedure Manual, M21-1, stated that if a decrease in evaluation of defective hearing was due to changed criteria or testing methods, rather than a change in the appellant's hearing acuity, then apply the old criteria and make no reduction. VA Adjudication Procedure Manual, M21-1, Part 1, Paragraph 50.13(b). Evaluations of bilateral hearing loss range from noncompensable to 80 percent based on organic impairment of hearing acuity within the conversational voice range (500 to 2,000 cycles per second) as measured by the results of controlled speech reception tests or pure tone audiometry reported as a result of Department of Veterans Affairs Regional Office or authorized audiology clinic examinations. 38 C.F.R. § 4.85 and Part 4, Codes 6277 to 6297; effective prior to December 18, 1987. As the facts of this case show that the reduction of the evaluation for the appellant's bilateral mixed hearing loss by the January 1989 rating decision was based on the application of audiometric findings resulting from new testing methods, such reduction was in contradiction of M21-1, Part 1, Paragraph 50.13(b), and, therefore, improper. Hence, in accordance with the decision in Fugere, the Board finds that the appellant's evaluation for his bilateral mixed hearing loss is restored to 40 percent, as of the date of reduction, which was April 1, 1989. II. A Disability Evaluation in Excess of 40 Percent For Bilateral Mixed Hearing Loss Disability evaluations are determined by the application of the VA's Schedule for Rating Disabilities, which is based on average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Separate diagnostic codes identify the various disabilities. Evaluations of bilateral defective hearing range from noncompensable to 100 percent based on organic impairment of hearing acuity as measured by the results of controlled speech discrimination tests together with the average hearing threshold as measured by pure tone audiometric tests at the frequencies of 1,000, 2,000, 3,000, and 4,000 cycles per second. To evaluate the degree of disability from bilateral defective hearing, the revised rating schedule establishes 11 auditory acuity levels designated from level I, for essentially normal acuity, through level XI, for profound deafness. 38 C.F.R. §§ 4.85, 4.87, Diagnostic Codes 6100 to 6110, effective December 18, 1987. A 50 percent evaluation for bilateral mixed hearing loss is assigned when the combination of hearing acuity levels in both ears is at levels X and VI, XI and VI, IX and VII, IX and VIII, or VIII and VIII. A review of the history of the appellant's bilateral mixed hearing loss shows that it was initially manifested in service. A VA audiological evaluation conducted in December 1988 revealed average pure tone thresholds of 88 and 60 in the right and left ears, respectively, for the frequencies at 1,000, 2,000, 3,000 and 4,000 cycles per second. Speech recognition ability at that time was 68 percent correct in the right ear and 84 percent correct in the left ear. Those findings indicate hearing acuity at level VII in the right ear and level III in the left ear. This combination of hearing acuity levels is evaluated as 20 percent disabling under 38 C.F.R. § 4.87 (1991). The Board realizes that the veteran has referred to ongoing hearing problems. The record shows a longstanding bilateral mixed hearing loss. The evidence shows that the current rating compensates the veteran for his bilateral defective hearing. When the audiometric results are applied to the rating criteria, an evaluation greater than 40 percent is clearly not warranted. The Board is unable to identify a reasonable basis for a grant of an evaluation in excess of 40 percent for bilateral mixed hearing loss. The disability picture presented in this case is not so unusual as to render impractical the schedular rating criteria. For example, it is not shown that frequent hospitalization or treatment has been required. Additionally, there is nothing in the record showing that the hearing loss is causing marked interference with employment. Thus, a higher rating on an extraschedular basis is not warranted. 38 C.F.R. § 3.321. ORDER Restoration of a 40 percent disability evaluation for bilateral mixed hearing loss is granted, subject to the laws and regulations governing the payment of monetary benefits. An evaluation in excess of 40 percent for bilateral mixed hearing loss is denied. BOARD OF VETERANS' APPEALS WASHINGTON, D.C. 20420 M. SABULSKY HARRY M. McALLISTER, M.D. J. U. JOHNSON (CONTINUED ON NEXT PAGE) 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.