93 Decision Citation: BVA 93-11812 Y93 BOARD OF VETERANS' APPEALS WASHINGTON, D.C. 20420 DOCKET NO. 91-44 305 ) DATE ) ) ) THE ISSUES 1. Entitlement to service connection for Meniere's disease. 2. Entitlement to restoration of a 10 percent evaluation for the veteran's service-connected defective hearing. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The veteran ATTORNEY FOR THE BOARD M. F. Halsey, Counsel INTRODUCTION The veteran served on active duty from November 1967 to February 1973. This matter initially came before the Board of Veterans' Appeals (Board) on appeal from a May 1, 1990, rating decision of the Montgomery, Alabama, Regional Office. This rating action denied a claim for an increased evaluation for defective hearing, a service-connected disability which was rated as 10 percent disabling at the time. A notice of disagreement was received on September 11, 1990, and a statement of the case was issued on November 5, 1990. The veteran's substantive appeal was received on November 15, 1990. In his appeal, he requested that consideration be given to a claim of entitlement to service connection for Meniere's disease. By rating actions taken on March 15, 1991, service connection for Meniere's disease was denied and a reduction from 10 percent to a noncompensable level was proposed for the veteran's service-connected defective hearing. A VA Form 1-9, in which the veteran expressed disagreement with the March 1991 rating actions, was received on April 3, 1991. A supplemental statement of the case addressing both issues was issued on April 18, 1991. The veteran testified at a hearing held at the regional office on May 21, 1991. By a June 3, 1991, decision, the hearing officer confirmed the denial of service connection and found that the veteran's hearing loss did not meet the criteria for the assignment of a compensable evaluation. By a June 6, 1991, rating action, a noncompensable evaluation was assigned for the veteran's service-connected hearing loss. A supplemental statement of the case was issued on June 14, 1991. Written argument was received from the veteran's representative, Disabled American Veterans, on a VA Form 1-646 received on August 6, 1991. The case file was received at the Board on October 1, 1991, and was docketed on October 10, 1991. It was referred to the veteran's representative on October 24, 1991, so that additional argument could be made. A written presentation was received from the representative on March 12, 1992. By an April 11, 1992 letter, the Board remanded the case because of a Department of Veterans Affairs (VA) stay of adjudication of claims regarding defective hearing. Per instructions contained in the Board's April 1992 letter, the originating agency prepared the case for return to the Board for further consideration of the service connection issue. A VA Form 1-646 was received from the veteran's representa- tive on April 23, 1992. The case file was received at the Board on May 15, 1992, and was docketed on May 20, 1992. Additional written argument was received from the veteran's representative on September 4, 1992. As noted above, this appeal began as a result of the veter- an's claim that an evaluation greater than 10 percent should be assigned for his service-connected defective hearing. This question, as well as the issue of entitlement to service connection for Meniere's disease is addressed in the remand section of this decision, following the Board's order regarding the restoration of a 10 percent evaluation for defective hearing. CONTENTIONS OF APPELLANT ON APPEAL The veteran and his representative contend that the reduction from the 10 percent evaluation to a noncompensable level was improper. Specifically, it is maintained that the case of Fugere v. Derwinski, 1 Vet.App. 103 (1990) requires that a reduction such as that taken in the veteran's case be found to be violative of VA rules and regulations. 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 June 1991 rating action reducing the veteran's 10 percent evaluation to a noncompensable level is void; entitlement to restoration of the 10 percent evaluation is warranted. FINDINGS OF FACT 1. The rating criteria by which impaired hearing acuity is evaluated were changed effective December 18, 1987. 2. A November 23, 1988 memorandum was issued by the Department of Veterans Affairs (VA) Chief Benefits Director which rescinded paragraph 50.13(b) of Part I of the Department of Veterans Affairs Adjudication and Procedure Manual, M21-1 (hereinafter Manual); this decision allowed for a rating reduction to occur on the basis of changed criteria or testing methods. 3. By a March 15, 1991, rating action, a reduction of the veteran's 10 percent evaluation was proposed as the result of application of the new rating criteria. 4. The veteran's 10 percent evaluation for defective hearing was reduced to a noncompensable level by a rating action taken on June 6, 1991. The basis for this reduction was the changed rating criteria and the November 1988 memorandum allowing for such reductions to occur. 5. Failure to apply the provisions of paragraph 50.13(b) of the Manual was improper. CONCLUSION OF LAW The reduction of a 10 percent rating for service-connected defective hearing was improper. 38 U.S.C.A. §§ 1155, 5107, l7104 (West 1991); 38 C.F.R. Part 4 (1991); Department of Veterans Affairs, Adjudication Procedure Manual, M21-1, Part 1, paragraph 50.13(b). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Board finds that the veteran's claim regarding the propriety of the reduction action taken by the originating agency is well grounded within the meaning of 38 U.S.C.A. § 5107 (West 1991). That is, we find that he has presented a claim which is plausible. We are also satisfied that all relevant facts have been properly developed. Moreover, we find that the failure to take into account Manual provisions set forth in paragraph 50.13(b) renders a June 1991 rating action void. Paragraph 50.13 (b) of the Manual specifically states that "[i]f the decrease in evaluation is due to changed criteria or testing methods, rather than a change in disability, ...the old criteria [are to be applied]." The March 15, 1991, proposal to reduce the veteran's rating and the June 6, 1991, action making the reduction effective show that criteria for rating defective hearing which were made effective on December 18, 1987, were applied to the veteran's case. The application of these new criteria resulted in a previously assigned 10 percent evaluation being reduced to a noncompensable level. However, as noted above, the application of certain provisions of the Manual would have resulted in no change to the veteran's rating so long as there had been no improvement in hearing acuity. The Board recognizes that the originating agency's action was likely taken pursuant to instructions contained in an internal memorandum dated November 23, 1988, from the VA Chief Benefits Director which rescinded paragraph 50.13(b). Nevertheless, the decision to rescind this paragraph was held to be in violation of proper rule-making procedures by the United States Court of Veterans Appeals. Fugere v. Derwinski, 1 Vet.App. 103 (1990). Since paragraph 50.13(b) of the Manual must be considered a valid rule, a reduction based solely on the application of the new criteria, as was apparently done in this case, is improper. ORDER Restoration of a 10 percent evaluation for service-connected defective hearing is granted. REMAND In light of the veteran's original contention that an evaluation greater than 10 percent should be assigned for his loss of hearing acuity, the Board finds that additional development is required. It should also be pointed out that the Board finds that the veteran's claim of entitlement to service connection for Meniere's disease is well grounded within the meaning of § 5107. Consequently, further action on this issue should also be taken. The Board notes that the veteran claims that the noise exposure experienced in service which resulted in his loss of hearing acuity can also be considered the cause of his having developed Meniere's disease. He points out that, in at least one variant of Meniere's disease, hearing loss and tinnitus can precede the first attacks of vertigo by years. He has also submitted a July 1991 letter from The EAR Foundation in Nashville, Tennessee, in which it was pointed out that "...severe noise exposure causing damage to the inner ear can cause a person to be susceptible to Meniere's disease." Additionally, although evidence has been received showing that some examiners believe that the veteran likely has Meniere's disease, a more definitive diagnosis would be helpful. Therefore, the case is REMANDED for the following actions: 1. The veteran should be afforded audio- metric testing in order to determine the severity of his service-connected hearing loss. Additionally, a board-qualified otologist should be asked to review the claims folder, examine the veteran and provide an opinion as to whether the veteran has Meniere's disease which can be attributed to his period of military service, events coincident with service such as noise exposure, or his service connected hearing loss. The examiner's findings, opinions and bases therefor should be set forth in detail. 2. The originating agency should take adjudicatory action with respect to the evidence obtained pursuant to the development sought above. If the benefits sought by the veteran are not granted, a supplemental statement of the case should be issued. After the veteran and his representative have been given an opportunity to respond to the supplemental statement of the case, the claims file should be returned to this Board for further appellate review. The purpose of this REMAND is to obtain additional evidence and comply with governing adjudicative procedures. The veteran need take no action until notified by the originating agency. The Board intimates no opinion, either legal or factual, as to the ultimate disposition of this appeal. BOARD OF VETERANS' APPEALS WASHINGTON, D.C. 20420 * (Member temporarily absent) U. H. ANG, M.D. DANIEL J. STEIN *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).