93 Decision Citation: BVA 93-06658 Y93 BOARD OF VETERANS' APPEALS WASHINGTON, D.C. 20420 DOCKET NO. 89-22 260 ) DATE ) ) ) THE ISSUES 1. Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for right ear hearing loss. 2. Entitlement to restoration of a compensable rating for left ear hearing loss. 3. Entitlement to an increased rating for post-traumatic stress disorder, currently evaluated as 30 percent disabling. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARINGS ON APPEAL Appellant ATTORNEY FOR THE BOARD E. J. McCafferty, Counsel INTRODUCTION This matter came before the Board on appeal from rating decisions of August 1988 and February 1989 from the Manchester, New Hampshire, Regional Office (RO). The veteran served on active duty from December 1944 to April 1946. The initial notice of disagreement was filed in January 1989. The statement of the case was furnished in February 1989 and the substantive appeal was received in February 1989. A hearing on appeal was conducted by the RO in April 1989. The appeal was initially docketed at the Board in August 1989. The case was remanded by Board decision in June 1990. A supplemental statement of the case was furnished in June 1990. While the case was in appellate status, the veteran filed a claim for service connection for post-traumatic stress disorder (PTSD) and service connection was granted by a rating decision in November 1990. At that time a 10 percent rating was assigned for PTSD. The veteran filed a notice of disagreement with respect to the rating assigned in November 1990. A statement of the case was furnished in December 1990 and a substantive appeal was received in January 1991. A hearing was conducted at the RO in April 1991 and the hearing officer determined that a 30 percent rating was warranted for the veteran's PTSD. The veteran's representative disagreed with the assignment of a 30 percent rating for PTSD and the case was recertified to the Board on all the issues shown on the title page in June 1991. The case was remanded to the RO by letter in March 1992 since the issue of entitlement to restoration of a compensable rating for hearing loss of the left ear fell within the guidelines set out in Fugere v. Derwinski, 1 Vet.App. 103 (1990), and such issues were to be held in abeyance until the appeal process with respect to Fugere was completed. A supplemental statement of the case was issued in September 1992. In January 1993, the case was returned to the Board. The appellant's current representative, Disabled American Veterans, furnished additional written argument in January 1993. In Fugere, the United States Court of Veterans Appeals (Court) held that the Department of Veterans Affairs (VA) attempted rescission of M21-1 (the Department of Veterans Affairs Adjudication Procedural Manual) part I, para. 5013(b), which instructed VA rating boards not to reduce benefits for a hearing loss where the reduction is due solely 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 remanded Fugere to the Board with a 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 found the Court's decision in Fugere v. Derwinski, 1 Vet.App. 103 (1990), was proper. 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. Conse- quently, 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 not granting service connection for hearing loss of the right ear as requested by the veteran. It is also argued that the decision of the Court in Fugere mandates restoration of a 10 percent rating for left ear hearing loss. It is also argued that the evidence supports a rating in excess of 30 percent for his PTSD. 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 is against the claims for service connection for hearing loss of the right ear and for an increased evaluation for PTSD. However, the record supports the restoration of a 10 percent rating for left ear hearing loss. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the issues on appeal has been obtained by the RO. 2. Service connection for right ear hearing loss was last denied by a Board decision in November 1979. 3. Evidence submitted since the November 1979 Board decision is essentially cumulative to the evidence of record in November 1979. 4. The RO reduced the evaluation of the veteran's service- connected left ear 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. 5. The symptoms of the veteran's service-connected PTSD are productive of no more than definite social and industrial impairment. CONCLUSIONS OF LAW 1. The prior decision of the Board denying service connection for a hearing loss of the right ear is final; new and material evidence not having been submitted, the veteran's claim for service connection for hearing loss of the right ear is not reopened. 38 U.S.C.A. §§ 5108, 7104 (West 1991). 2. Restoration of a 10 percent evaluation for service- connected hearing loss of the left ear is warranted. 5 U.S.C.A. §§ 552(a)(1), 553; 38 U.S.C.A. § 7261(a)(3)(d) (West 1991); 38 C.F.R. §§ 1.12, 1.551(c), Department of Veterans Affairs Adjudication Procedure Manual, M21-1, para. 50.13(b); Fugere v. Derwinski, 1 Vet.App. 103, aff'd. 972 F.2d. 331 (Fed. Cir. 1992). 3. An evaluation in excess of 30 percent for PTSD is not warranted. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. Part 4, Code 9411 (1992). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The veteran's claims are not inherently implausible and, therefore, are "well grounded" within the meaning of 38 U.S.C.A. 5107(a) (West 1991). We also find that all available evidence pertinent to the claims has been obtained. Hence, there is no further "duty to assist" the claimant which is also mandated by § 5107(a). I. Whether New and Material Evidence has been Submitted to Reopen a Claim of Entitlement to Service Connection for Right Ear Hearing Loss The prior decision of the Board denying service connection for hearing loss of the right ear is final. 38 U.S.C.A. § 7104 (West 1991). The question for consideration now is whether new and material evidence has been submitted which would warrant a reopening of the claim for service connection for a right ear hearing loss. 38 U.S.C.A. § 5108 (West 1991). We note that the evidence submitted since the prior Board decision includes the veteran's reiteration of his contentions, which were previously considered. Additional audiometric studies and clinical findings with respect to the veteran's hearing subsequent to the last Board decision are also of record; but these findings are of relatively recent origin. The veteran also furnished a February 1988 statement from a private physician, who opined that the veteran could have sustained damage to his right ear at the same time he sustained the hearing loss of his left ear for which service connection has been granted. In considering this statement, we note that the physician had no access to the veteran's service medical records or early post service medical records. Also, his opinion was based on a history furnished by the veteran and not based on personal observa- tion or findings. We also note that the physician indicated that the veteran had worked over the years in construction, which he classified as an environment with a moderate noise exposure. Thus, the opinion expressed by the private physician is of little probative value as he first saw the veteran in 1988 and based his opinion on a history furnished by the veteran which is not supported by the clinical or other data of record. While this evidence is new, it is not material, in that it fails to show that a right ear hearing loss was present any earlier than was previously shown. While we have considered the veteran's arguments with respect to the onset of his right ear hearing loss, there was and still is nothing in the record to establish the presence of a right ear hearing loss during service or a right sensorineural hearing loss within one year of service discharge. The first indication of a right ear hearing loss was many years after service discharge. For this reason, the new evidence has no significant probative value. Since new and material evidence has not been submitted this claim may not be reopened. 3 U.S.C.A. § 5108 (West 1991). II. Entitlement to Restoration of a Compensable Rating for Left Ear Hearing Loss The veteran also seeks restoration of a 10 percent rating for left ear hearing loss. By rating decision in February l989, the RO reduced the evaluation of the veteran's left ear hearing loss from 10 percent to a noncompensable rating based solely on new criteria for rating this disability. The hearing loss rating was previously reduced from 40 percent to 10 percent, but this reduction was based on clear and unmistakable error in the rating which had assigned 40 percent, as that rating had considered the veteran's service-connected hearing loss to be a bilateral disorder, while in reality only left ear hearing loss was service connected. It is argued, in effect, 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, 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 veterans' 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 legitimatizing a reduction in benefits for service- connected defective hearing based solely upon revised schedular criteria, with no demonstrated clinical improvement in the veterans' 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 38 U.S.C.A. § 7261 (1)(3)(D) (West 1991). In light of such holding, the provisions of para. 50.13(b) of the VA's adjudication procedural manual (M21-1) must be considered a valid rule. Consequently, the 10 percent evaluation previously assigned for the veteran's bilateral defective hearing must be restored. III. Entitlement to an Increased Rating for Post-traumatic Stress Disorder, Currently Evaluated as 30 Percent Disabling The veteran also seeks an increased rating for his PTSD. In his substantive appeal, he indicated that he felt that he was entitled to a benefit between 30 percent and 50 percent because the examiner had not reported all of his traumatic experiences during his combat service. In this regard, we would note that, while a history of the veteran's condition is beneficial in assessing his overall disability picture, his current rating is based primarily on currently demon- strated symptomatology and the associated functional impair- ment. The fact that the examiner failed to include all of the veteran's traumatic experiences would have no adverse affect on the examiner's current psychiatric evaluation of the veteran's condition. In this regard, the veteran complained of sleep disturbances, including nightmares and dreams of his World War II experiences. He also reported having guilt feelings. On examination, the veteran was noted to be pleasant and cooperative, with a worried and anxious look. His speech was monotonous and he had difficulty maintaining eye contact. He was preoccupied with his nightmares and dreams. He denied being acutely suicidal and reported that his self-esteem was still good. He reported losing interest in hunting and fishing. The examiner found no evidence of hallucinations or delusions, and the veteran's thought process was found to be coherent. He was able to verbalize his feelings of sadness. His affect was constricted, but his insight and judgment were intact and his memory was not impaired. The examiner felt that the veteran's symptomatology was productive of mild impairment. At a hearing on appeal in April 1991, the veteran described his symptomatology in detail. He submitted a copy of his VA treatment plan. Also submitted was a statement from a VA psychiatrist, dated in September 1990, prior to the date of the VA psychiatric examination conducted that same month. This physician reported a history of the veteran's condition. He noted that recently the veteran suffered from weight loss and that a reduction in his compensation for his service- connected hearing loss had caused him emotional difficulties. The veteran reported avoiding people, gatherings and social activities and felt he was much less social than previously. The doctor felt that stresses, such as the recent loss of his compensable rating for hearing loss, had caused a worsening of his PTSD. On review of the above and in light of the veteran's specific contentions with respect to the level of severity of his psychiatric disorder, we are unable to conclude that he is entitled to a rating in excess of the 30 percent now assigned for definite impairment under Code 9411. 38 C.F.R. Part 4 (1992). We note that on VA examination in September 1990 the examiner reported findings which he felt represented a mild degree of impairment. His reported findings would support this assessment; however, at the hearing on appeal the veteran reiterated his problems and furnished other material from the VA, which indicated that his condition resulted in more than mild social and industrial impairment. The record shows that the veteran is retired and, thus, it is difficult to assess the industrial impairment resulting from his service-connected psychiatric disorder. However, based on the demonstrated symptoms and complaints, we cannot find that the disorder is productive of more than considera- able industrial impairment. With respect to social impair- ment, the veteran has complaints that he is less social and is having trouble getting along with his wife; however, the record shows that the veteran has been married for in excess of 50 years, which would indicate that the veteran is capable of functioning in a marital environment. While we have considered the veteran's complaints, the reported findings on mental status examination, as well as the veteran's complaints then recorded, do not represent symptoms productive of more than definite social impairment. Accord- ingly, the criteria for the next higher rating of 50 percent under Code 9411 are neither met nor approximated. ORDER Service connection for right ear hearing loss and an increased rating for post-traumatic stress disorder are denied. Restoration of a rating of 10 percent for a left ear hearing loss is granted, subject to the criteria governing the payment of monetary benefits. BOARD OF VETERANS' APPEALS WASHINGTON, D.C. 20420 * STEPHEN L. WILKINS GEORGE R. SENYK *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.