93 Decision Citation: BVA 93-11405 Y93 BOARD OF VETERANS' APPEALS WASHINGTON, D.C. 20420 DOCKET NO. 91-19 914 ) DATE ) ) ) THE ISSUES Entitlement to service connection for tinnitus. Entitlement to an increased rating for anxiety reaction, rated 70 percent disabling. Entitlement to restoration of a 30 percent rating for bilateral hearing loss. Entitlement to a total rating based on individual unemployability due to service-connected disability. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD James J. Dunphy, Counsel INTRODUCTION This matter comes before the Board on appeal from a rating decision of May 1990 of the Houston, Texas, Regional Office (hereinafter RO). The veteran served on active duty from February 1944 to April 1945. The notice of disagreement was received in July 1990, and a statement of the case was issued in October 1990. The substantive appeal was received in October 1990, and a supplemental statement of the case was issued in January 1991. The case was received and docketed at the Board of Veterans' Appeals in May 1991. The Veterans of Foreign Wars of the United States has served as the veteran's representative throughout the appellate process. The veteran's claim was administratively remanded by the Board of Veterans' Appeals in March 1992 in light of the decision of the Court of Veterans Appeals in Fugere v. Derwinski, 1 Vet.App. 103 (1990). The Court, in this case, held that the Department of Veterans Affairs (VA) attempted recision of M21-1 (that is, the VA Adjudication Procedure Manual), Part I, para. 50.13(b), which instructed VA rating boards not to reduce benefits for hearing loss where the reduction is due to changed criteria, without complying with the requirements of 5 U.S.C.A. §§ 552(a)(1) and 553 (West 1991) was "without observance of procedure required by law." The Court then remanded the case to the Board with directions to reinstate the veteran's disability rating in accordance with paragraph 50.13(b), M21-1. In August 1992, the United States Court of Appeals for the Federal Circuit affirmed the Court of Veterans Appeals decision in Fugere v. Derwinski, 972 Fed.2d 331 (Fed. Cir. 1992). In October 1992, the United States Court of Appeals for the Federal Circuit denied the Secretary of Veterans Affairs request for an En Banc rehearing of the August 1992 decision. Subsequently, in November 1992, the Office of the General Counsel, VA, advised the Under Secretary for Benefits, Department of Veterans Affairs, that further review of the case would not be sought. Consequently, this case is now before the Board for implementation of the Fugere guidelines. In a November 1990 rating action, service connection was denied for tinnitus. The veteran submitted a notice of disagreement, and a statement of the case was issued. The veteran submitted an appeal in May 1991. While she did not specifically make reference to tinnitus, she did make notations on the statement of the case with regard to this issue. We therefore conclude that the veteran's May 1991 communication served as a substantive appeal on the issue of entitlement to service connection for tinnitus. We further note that the veteran's representative at the Board of Veterans' Appeals considered this issue in his informal hearing presentation. In light of the Board's action with regard to the issues of entitlement to service connection for tinnitus and entitlement to an increased rating for bilateral defective hearing, the issue of entitlement to a total rating based on individual unemployability will be the subject of the section entitled REMAND, below. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that the anxiety reaction and defective hearing are more disabling than currently evaluated. The accredited representative has requested that the case be remanded for a current psychiatric examination. She further argues that as a result of these disorders, she is unable to obtain or retain employment. Finally, she argues that service connection is warranted for tinnitus. DECISION OF THE BOARD In accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991), after 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 grant of an increased rating for anxiety reaction. It is our decision, further, that the record supports restoration of a 30 percent rating for bilateral defective hearing and a grant of service connection for tinnitus. FINDINGS OF FACT 1. An etiological relationship between the veteran's service connected hearing loss and tinnitus is shown. 2. The veteran's anxiety reaction is productive of no more than severe social and industrial impairment. 3. The RO reduced the evaluation of the veteran's service- connected bilateral defective hearing from 30 percent to a protected 20 percent rating based solely on a change in rating criteria and not on a showing of any auditory improvement. CONCLUSIONS OF LAW 1. Tinnitus is proximately due to service connected bilateral defective hearing. 38 U.S.C.A. § 5107 (West 1991); 38 C.F.R. § 3.310 (1992). 2. A rating in excess of 70 percent for anxiety reaction is not warranted. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. Part 4, Code 9400. 3. Restoration of a 30 percent evaluation for service- connected bilateral defective hearing 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), VA Adjudication Procedure Manual, M21-1 para. 50.13(b); Fugere v. Derwinski, 1 Vet.App. 103 (1990), aff'd. 972 Fed.2d 331 (Fed. Cir. 1992). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Initially, we note that the veteran's claims are well grounded. By this, we mean that she has submitted claims which are plausible. We further conclude that VA has met its statutory duty to assist the veteran in the development of her claim, and that no further development is required to meet the provisions of 38 U.S.C.A. § 5107 (West 1991). I. Entitlement to Service Connection for Tinnitus We note that there was no report of tinnitus during the veteran's period of active duty. The veteran reported tinnitus when she was examined for compensation purposes by the VA in March 1978, and indicated that tinnitus had been present since service. However, we have no contemporaneous medical evidence to support this history. Therefore, service connection for tinnitus on a direct basis is not warranted. 38 U.S.C.A. §§ 1110, 5107 (West 1991) Service connection for tinnitus may be granted, however, if it is shown that the tinnitus is proximately due to or the result of a disorder of service origin. In this case, we note that service connection is in effect for bilateral hearing loss, sensorineural in nature. Sound medical principles support the relationship between this type of hearing loss and tinnitus. Therefore, resolving reasonable doubt in the veteran's favor, we conclude that service connection for tinnitus on a secondary basis is warranted. 38 U.S.C.A. § 5107 (West 1991); 38 C.F.R. § 3.310 (1992) II. Entitlement to an Increased Rating for Anxiety Reaction The veteran was treated in service beginning in October 1944, at which time she noted, among other problems, memory loss, anorexia, and weakness. Regular psychiatric treatment was begun, and the veteran required hospitalization in February 1945. The diagnosis upon discharge from hospitalization was psychoneurosis, neurasthenia, severe. The veteran's current 70 percent evaluation reflects severe social and industrial impairment. For a 100 percent rating to be granted, it must be shown that there are totally incapacitating psychoneurotic symptoms bordering on gross repudiation of reality. 38 C.F.R. Part 4, Code 9400 (1992). We conclude that the objectively demonstrated symptomatology is not of sufficient severity to warrant such a rating. When the veteran was examined for compensation purposes by VA in February 1990, she stated she was very depressed and had difficulty sleeping. On mental status examination, she was alert and cooperative and had a pleasant manner. Her anxiety level increased noticeably during tests of memory and calculation, and, while her affect was also labile, she often smiled and showed a sense of humor. She was oriented to time, place and person, and no hallucinations or delusions were detected. The diagnostic impression was anxiety disorder, not otherwise specified. The examiner concluded that the veteran's anxiety level had considerably increased secondary to the development of disabling physical problems. We note that this symptomatology is of sufficient severity to have warranted an increase in the veteran's disability rating from 50 percent to 70 percent. However, given that the veteran was alert and oriented, and that the increase in anxiety level was considered largely the result of the veteran's physical disabilities, we conclude that the anxiety disorder is not productive of total social and industrial impairment. Therefore, a rating in excess of 70 percent may not be granted. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. Part 4, Code 9400 (1991). III. Entitlement to Restoration of a 30 percent Rating for Bilateral Defective Hearing Effective in December 1987, new criteria for the evaluation of service connection for 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 veteran's condition or disability. 50.13(b) of M21-1 specifically provided the following direction to the 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 internal memorandum to the RO directors, dated November 23, 1988, rescinded the protective manual paragraph. Such recision had the effect of legitimizing a reduction in benefits for service-connected bilateral defective hearing based solely upon revised schedular criteria, with no demonstrated clinical improvement in the veteran's service-connected hearing loss. The Court of Veterans Appeals, in Fugere v. Derwinski, 1 Vet.App. 103 (1990) aff'd. 972 Fed.2d 331 (Fed. Cir. 1992), found that, in deleting paragraph 50.13(b) of M21-1 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 of Veterans Appeals therefore held that the attempted recision of M21-1 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(a)(3)(D) (West 1991). In light of such holdings, the provisions of paragraph 50.13(b) of M21-1 must be considered to be a valid rule. Consequently, the 30 percent evaluation previously assigned for the veteran's bilateral defective hearing must be reinstated. ORDER Service connection for tinnitus is granted. An increased rating for anxiety reaction is denied. Restoration of a 30 percent rating for service-connected bilateral defective hearing is granted, subject to the provisions governing the payment of monetary benefits. REMAND The Board, in this decision, has granted service connection for tinnitus, and restored a 30 percent evaluation for bilateral defective hearing. Also before us is the issue of entitlement to a total rating based on individual unemployability. The RO has not had the opportunity to consider this issue in light of the actions taken by the Board with regard to tinnitus and bilateral defective hearing. For the Board to consider the issue of entitlement to a total rating based on individual unemployability due to service connected disabilities prior to RO review would be a violation of due process. Therefore, the case is remanded to the RO For the following action: The RO should again consider the issue of entitlement to a total rating based on individual unemployability due to service connected disabilities, taking into consideration the decision of the Board granting service connection for tinnitus and an increased rating for bilateral defective hearing. When the requested development has been completed, if the determination is adverse to the veteran, she and her representative should be provided with a supplemental statement of the case with regard to the additional development. They should also be given a reasonable period in which to respond. The case should then be returned to the Board for further appellate action. The purpose of this remand is to insure that the veteran receives all appropriate due process. No inference should be drawn regarding the merits of the claim, and no action is required of the veteran unless she is further notified. BOARD OF VETERANS' APPEALS WASHINGTON, D.C. 20420 * JAN DONSBACH 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. Under 38 U.S.C.A. § 7252 (West 1991), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Veterans Appeals. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (1992).