93 Decision Citation: BVA 93-07107 Y93 BOARD OF VETERANS' APPEALS WASHINGTON, D.C. 20420 DOCKET NO. 92-06 879 ) DATE ) ) ) THE ISSUE Entitlement to restoration of a 20 percent rating for defective hearing. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD W. Pope, Counsel INTRODUCTION The veteran had active service from June 1944 to May 1946. This matter came before the Board of Veterans' Appeals (Board) on appeal from a February 1990 rating decision by the Salt Lake City, Utah, Regional Office (RO) of the Department of Veterans Affairs (VA), which effectuated a reduction of rating from 20 percent to noncompensable for the veteran's service-connected bilateral defective hearing effective from May 1, 1990. A notice of disagreement was received on May 31, 1990. The statement of the case was issued on August 9, 1990. A substantive appeal was received on August 24, 1990. The veteran was present for a hearing before a hearing officer at the RO in December 1990. The hearing officer's decision was signed in January 1991. Supplemental statements of the case were issued in February and July 1991. The veteran is represented by the Disabled American Veterans, and that organization submitted a written argument on his behalf in November 1991. The appeal was received at the Board on May 11, 1992, and docketed on May 12, 1992. On May 13, 1992, the claims file was charged to the veteran's representative, and the Disabled American Veterans submitted a written brief on appeal in July 1992. CONTENTIONS OF APPELLANT ON APPEAL In essence, the veteran and his representative contend that the reduction of the rating for defective hearing from 20 percent to noncompensable was erroneous because there has been no improvement in his disability. In a March 1992 writ- ten argument the veteran's representative asserted that the reduction was improper because it was based upon a change in the rating criteria or testing methods, which is not permit- ted under the rating instructions published in the VA's Adjudication Procedural Manual (M21-1) in paragraph 50.13(b), and that the Court of Veterans Appeals (Court) upheld this reasoning in the case of Fugere v. Derwinski, dated December 27, 1990. DECISION OF THE BOARD In accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991), following review of all evidence and material of record in the claims file, and for the reasons and bases hereinafter set forth, it is the decision of the Board that the reduction of the veteran's 20 percent rating was void ab initio and that restoration of a 20 percent rating for defec- tive hearing is warranted. FINDINGS OF FACT 1. By a rating decision of July 1985, a 20 percent rating was assigned for the veteran's service-connected defective hearing effective from April 1, 1985. 2. There has been no improvement in the veteran's service- connected defective hearing since July 1985. 3. A rating decision in February 1990 reducing the 20 per- cent rating for defective hearing from May 1, 1990, was based solely on a change in rating criteria and was not consistent with established adjudication standards. 4. In August 1992 the United States Court of Appeals for the Federal Circuit affirmed a December 1990 decision of the United States Court of Veterans Appeals which upheld the validity of a paragraph in the Adjudication Procedure Manual of the VA which protected veterans against a decrease in benefits due to a changed rating criteria or testing methods, if there had not been any change in the veteran's condition or disability. CONCLUSION OF LAW Restoration of a 20 percent rating for defective hearing from May 1, 1990, is warranted inasmuch as the reduction of the rating was improper. 38 U.S.C.A. §§ 1155, 5107, 7104 (West 1991); VA M21-1, Part I, paragraph 50.13(b). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS A rating decision in September 1948 established entitlement to service connection for defective hearing. A noncompensa- ble disability rating was assigned effective from the day following the veteran's separation from service. A rating decision in July 1985 established a 20 percent disability rating effective from April 1, 1985, based on a VA audio- metric examination in June 1985 which disclosed pure tone thresholds of 20, 60, 75 and 80 decibels in the right ear and 20, 60, 95, and 90 decibels in the left ear at 1,000, 2,000, 3,000, and 4,000 hertz, respectively. The 20 percent rating was effective from April 1, 1985, the date of a VA outpatient treatment record disclosing moderate to severe sensorineural hearing loss bilaterally at 1,500 hertz. The veteran filed a claim for an increased rating for defect- ive hearing in December 1989. During a January 1990 VA exam- ination the veteran signed a document informing him that the VA began using a new rating schedule for determination of percentage disability rating for hearing loss in December 1987, and that the regulations did not allow protection of his current evaluation. The document further stated that "[a]s a result of any evaluation which results in a decrease in percentage disability will result in a decrease in the amount of compensation you will receive." The veteran signed the document on January 19, 1990. A VA audiological examina- tion on that date disclosed pure tone thresholds of 20, 60, 70 and 65 decibels in the right ear and 20, 60, 75 and 100 decibels in the left ear at 1,000, 2,000, 3,000, and 4,000 hertz, respectively. Speech recognition was reported as 92 percent in the right ear and 84 percent in the left ear. Based on the results of the January 1990 examination, and utilization of the "new" rating schedule which took effect in December 1987, a rating decision in February 1990 reduced the veteran's disability rating from 20 percent to noncompensable, effective from May 1, 1990. The veteran appealed this reduction, and received another VA audiological evaluation in November 1990, which disclosed pure tone thresholds of 20, 60, 75 and 90 decibels in the right ear and 20, 60, 95 and 100 decibels in the left ear at 1,000, 2,000, 3,000 and 4,000 hertz, respectively. Speech recognition ability was reported as 90 percent in the right ear and 72 percent in the left ear. Based on the results of the November 1990 examination, and the "new" rating schedule effective in December 1987, a December 1990 rating decision increased the veteran's disability rating for defective hearing to 10 percent, effective from May 1, 1990. During the course of the veteran's appeal, the United States Court of Veterans Appeals held that the VA failed to comply with the provisions of the Administrative Procedures Act, and its own policies and regulations, in deleting para- graph 50.13(b) of the VA Adjudication Procedure Manual (M21-1). The paragraph which was deleted had protected, without exception, veterans against decreases in benefits, due to changed rating criteria or testing methods, if there had not been any change in the veteran's hearing loss. Fugere v. Derwinski, 1 Vet.App. 103 (1990). This decision was appealed, and in August 1992 the United States Court of Appeals for the Federal Circuit affirmed the decision. Fugere v. Derwinski, 972 F.2d. 331 (Fed. Cir. 1992). In light of the August 1992 Court decision, M21-1, Part I, para- graph 50.13(b) must be considered to be a valid substantive rule. A review of the evidence discloses that the reduction of the veteran's 20 percent disability rating for defective hearing in the February 1990 rating decision was contrary to the aforementioned valid substantive rule. Accordingly, the prior (20 percent) rating must be restored, effective from the date of reduction on May 1, 1990. ORDER Restoration of a 20 percent rating for defective hearing from May 1, 1990, is granted. BOARD OF VETERANS' APPEALS WASHINGTON, D.C. 20420 STEPHEN L. WILKINS U. H. ANG, M.D. DANIEL J. STEIN 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.