93 Decision Citation: BVA 93-03497 Y93 BOARD OF VETERANS' APPEALS WASHINGTON, D.C. 20420 DOCKET NO. 90-45 566 ) DATE ) ) ) THE ISSUE Entitlement to restoration of a 40 percent disability rating for a bilateral hearing loss. REPRESENTATION Appellant represented by: William D. Mallard, Jr., Attorney ATTORNEY FOR THE BOARD R. M. Pelletier, Counsel INTRODUCTION The veteran served on active duty from April 1963 to January 1967. This matter came to the Board of Veterans' Appeals (Board) from a March 1990 rating decision of the Department of Veterans Affairs (VA) Atlanta, Georgia, Regional Office (RO) which reduced from 40 percent to 30 percent the disability rating assigned for a bilateral hearing loss. A notice of disagreement was received in May 1990. A statement of the case was issued in June 1990. The case was docketed at the Board in October 1990. The veteran's representative of record at the time, AMVETS, presented an informal brief to the Board in February 1991. In June 1991, the Board denied entitlement to a 40 percent evaluation for a bilateral 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, 104 (1990), held that the VA's attempted rescission of M21-1 (that is, the VA Adjudication Procedural Manual) Part 1, paragraph 50.13(b), which instructed VA rating boards not to reduce benefits for hearing losses where the reduction was due to changed criteria, without complying with the provisions of 5 U.S.C. § 552(a)(1) and 553 (1988) was "without observance of procedure required by law." The Court then remanded Fugere to the Board with the direction to reinstate the appellant's disability rating in accordance with paragraph 50.13(b). The VA appealed the Fugere case to the United States Court of Appeals for the Federal Circuit, and on August 7, 1992, the Federal Circuit affirmed the Court's decision. Fugere v. Derwinski, 972 F.2d 331 (Fed.Cir. 1992). On October 27, 1992, the United States Court of Appeals for the Federal Circuit declined the suggestion of the Secretary of Veterans Affairs for a hearing en banc of its decision. Concerning the case presently before the Board, in June 1992, the Court granted the Secretary's motion for remand and for stay of further proceedings, vacated the June 1991 Board decision, and remanded the case to the Board 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 that the reduction of the 40 percent for service-connected bilateral hearing loss was erroneous because, with the information provided the veteran, he was not properly informed as to whether or not to pursue his claim for an increased rating. It is maintained that the RO did not inform him of possible consequences which could result under the new guidelines, if he requested an increased rating for the bilateral hearing loss. He maintains that a 50 percent rating is in order. 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 preponderance of the evidence supports the restoration of a 40 percent evaluation for service-connected bilateral hearing loss. FINDINGS OF FACT 1. By a rating action in March 1990, the 40 percent evaluation for bilateral hearing loss was reduced to 30 percent, based on a change in VA regulations. 2. On January 1990 VA examination of the veteran's right ear showed total deafness and his left ear was manifested by a 79-decibel average puretone threshold at 1,000, 2,000, 3,000 and 4,000 hertz and an 86 percent correct speech discrimination ability score. 3. No improvement in the service-connected bilateral hearing loss had been shown at the time of the March 1990 rating. CONCLUSION OF LAW Restoration of a 40 percent evaluation for service-connected bilateral 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), aff'd, 972 F.2d 331 (Fed.Cir. 1992). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Board finds that the veteran's claim is well grounded, that is, it is not inherently implausible. We find that the facts relevant to the issue on appeal have been properly developed and that the statutory obligation of the VA to assist the veteran in the development of his claim has been satisfied. 38 U.S.C.A. § 5107(a) (West 1991). The veteran in this case seeks review of a March 1990 decision of the RO reducing the 40 percent evaluation for service-connected bilateral 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.A. §§ 552(a)(1) and 553 (1988) of the Administrative Procedure Act, and that he was not given notice and proper information and an opportunity to comment. The basic facts in this case are as follows: In May 1967, the veteran was awarded service connection for a bilateral hearing loss. He was assigned a 30 percent evaluation under the VA Schedule for Rating Disabilities, 38 C.F.R. Part 4. He was in receipt of a 30 percent evaluation until a rating action in December 1984 when he was awarded a 40 percent evaluation based on the findings of VA audiometric examinations dated in June and September 1984, which were essentially the same. In essence, it was noted that in the left ear, pure tone threshold decibel losses were 50, 60, and 70, at the frequencies of 500, 1,000, and 2,000 hertz, for an average of 60. It was remarked that on speech reception examination, he had no response in the right ear. It was determined that he had a moderately severe sensorineural hearing loss in the left ear and a profound loss in the right ear. During a VA audiometric examination performed in January 1990, left ear decibel losses of 65, 75, 85, and 90 decibels were reported at the frequencies of 1,000, 2,000, 3,000 and 4,000 hertz. Speech recognition in the right ear was no (0) percent. It was concluded that he had profound sensorineural hearing loss in the right ear and a moderately severe loss in the left ear. 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 who were 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 VA Regional Office 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 hearing loss based solely upon revised schedular criteria, with no demonstrated clinical improvement in the veteran's service-connected hearing loss. The Court 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 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 observation of procedure required by law" and it was accordingly held "unlawful and set aside" pursuant to 38 U.S.C.A. § 7261(a)(3)(D). Fugere, 1 Vet.App. at 110. 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. In comparing the September 1984 VA audiometric examination with that performed in January 1990, it appears that no demonstrated clinical improvement in the veteran's service-connected hearing loss was shown. The results were essentially similar. Consequently, the reduction of the veteran's prior 40 percent evaluation for service-connected bilateral hearing to 30 percent was in error, and the 40 percent rating must be reinstated. Since the audiometric findings in and of themselves did not reflect a 40 percent disability rating, it is clear that entitlement to more than a 40 percent rating is not established. ORDER Restoration of a 40 percent disability rating for bilateral 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 *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. (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.