93 Decision Citation: BVA 93-13014 Y93 BOARD OF VETERANS' APPEALS WASHINGTON, D.C. 20420 DOCKET NO. 90-05 431 ) DATE ) ) ) THE ISSUES 1. Entitlement to restoration of a 40 percent disability evaluation for bilateral hearing loss. 2. Entitlement to an evaluation in excess of 40 percent for bilateral hearing loss. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The appellant ATTORNEY FOR THE BOARD L. Gottfried, Counse INTRODUCTION The appellant served on active duty from October 1944 to July 1946 and from January 1951 to October 1952. This case came before the Board of Veterans' Appeals (hereinafter the Board) on appeal from rating decisions from the Department of Veterans Affairs (hereinafter VA) Cleveland, Ohio, Regional Office (hereinafter RO). The RO, in a December 1988 rating decision, reduced the appellant's disability evaluation for his service-connected bilateral hearing loss from 40 percent to a noncompensable evaluation, effective from March 1, 1989. The noncompensable evaluation was continued in a rating decision of January 1989. The notice of disagreement was received in February 1989. The statement of the case was issued in April 1989. The veteran's substantive appeal was received in May 1989. The veteran testified at a personal hearing in the RO in September 1989. A VA hearing officer continued the noncompensable evaluation in November 1989. A supplemental statement of the case was issued in December 1989. The case was received at the Board in March 1990 and docketed in April 1990. It was then referred to the appellant's representative, Disabled American Veterans, who submitted a statement in support of the appellant's claim in July 1990. In a September 1990 decision, the Board denied the appellant's claim of entitlement to an increased (compensable) evaluation for bilateral hearing loss. He appealed that decision to the United States Court of Veterans Appeals (hereinafter the Court) in May 1991. In an order of June 1991, the Court reversed the September 1990 Board decision and remanded the case to the Board for the purpose of having the Board reinstate the prior 40 percent evaluation from the date of reduction, March 1, 1989. This action was consistent with the Court's decision in Fugere v. Derwinski, 1 Vet.App. 103 (1990). Subsequent to the Court's June 1991 decision, the case was stayed at the Board under authority recognized in Tobler v. Derwinski, 2 Vet.App. 8 (1991), pending the appeal of the Fugere decision by the United States Department of Justice to the United States Court of Appeals for the Federal Circuit. In August 1992, the United States Court of Appeals for the Federal Circuit affirmed the Court's decision. Fugere v. Derwinski, 972 F.2d 331 (Fed. Cir. 1992). In October 1992, the United States Court of Appeals for the Federal Circuit denied the request by the Secretary of the VA for a hearing en banc. In November 1992, the General Counsel for the VA decided not to pursue an appeal of the Fugere decision to the United States Supreme Court. CONTENTIONS OF APPELLANT ON APPEAL The appellant asserts that his bilateral hearing loss is of such a nature and severity as to support the assignment of a rating greater than 40 percent. He has stated that his bilateral hearing loss has followed a downward course and has necessitated his having to use amplification for telephone conversations and normal conversations when there is any form of background noise. It is requested that all applicable laws and regulations be considered, including the extraschedular criteria of 38 C.F.R. § 3.321(b)(1), and 38 C.F.R. § 4.7. DECISION OF THE BOARD In accordance with the decision of the Court in Fugere and its affirmance by the United States Court of Appeals for the Federal Circuit, it is the decision of the Board that the December 1988 rating decision erroneously reduced the appellant's disability evaluation for bilateral hearing loss. Therefore, the 40 percent evaluation is restored, effective from March 1, 1989. 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 appellant's claims file, and for the following reasons and bases, it is the decision of the Board that the evidence does not support entitlement to a disability evaluation in excess of 40 percent for bilateral hearing loss. FINDINGS OF FACT 1. The reduction of the appellant's 40 percent disability evaluation for bilateral hearing loss to a noncompensable evaluation, by a December 1988 rating decision, was improper. 2. Bilateral hearing loss is manifested by hearing acuity levels of III in both ears. CONCLUSIONS OF LAW 1. A 40 percent evaluation is warranted for bilateral hearing loss, effective March 1, 1989. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 4.85, 4.87, Diagnostic Code 6284 (effective prior to December 18, 1987); Fugere v. Derwinski, 1 Vet.App. 103 (1990). 2. The schedular criteria for a disability evaluation in excess of 40 percent for bilateral hearing loss are not met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 4.85, 4.87, Diagnostic Code 6100 (1992). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The provisions of 38 U.S.C.A. § 5107(a) (West 1991) have been met, in that the appellant's claim is well grounded and adequately developed. I. Restoration of a 40 Percent Evaluation For Bilateral Hearing Loss Prior to the December 1988 rating decision, the appellant's bilateral hearing loss was rated 40 percent disabling, based on the criteria in 38 C.F.R. §§ 4.85, 4.87, Diagnostic Code 6284, which was in effect at the time of a February 1973 rating decision that granted an increased disability evaluation of 40 percent for bilateral hearing loss. The December 1988 rating decision, which reduced the evaluation to a noncompensable evaluation, was based on the findings on a VA audiometric evaluation conducted in October 1988 using new rating criteria and testing methods for bilateral defective hearing which became effective December 18, 1987. This was also true with respect to the rating decision in January 1989 that continued the noncompensable evaluation based on a review of VA and other examination reports and statements pertaining to hearing loss. Evaluations of bilateral hearing loss under the old rating criteria ranged from noncompensable to 80 percent based on organic impairment of hearing acuity within the conversational voice range (500 to 2,000 cycles per second) as measured by the results of controlled speech reception tests or pure tone audiometry reported as a result of VA or authorized audiology clinic examinations. 38 C.F.R. § 4.85 and Part 4, Codes 6277 to 6297; effective prior to December 18, 1987. As the facts of this case show that the reduction of the evaluation for the appellant's bilateral hearing loss by the December 1988 rating decision, subsequently confirmed in the January 1989 rating decision, was based on an application of audiometric findings resulting from new testing methods, such reduction was in contradiction of VA Adjudication Procedure Manual M21-1, Part 1, Paragraph 50.13(b), and, not in accord with the Fugere decision. Hence, in accordance with the decision in Fugere, the Board finds that the appellant's evaluation for his bilateral hearing loss is restored to 40 percent, as of the date of reduction, which was March 1, 1989. II. A Disability Evaluation in Excess of 40 percent For Bilateral Hearing Loss Disability evaluations are determined by the application of the VA's Schedule for Rating Disabilities, which is based on average impairment of earning capacity. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. Part 4 (1992). Separate diagnostic codes identify the various disabilities. Evaluations of bilateral defective hearing under the new rating criteria range from noncompensable to 100 percent based on organic impairment of hearing acuity as measured by the results of controlled speech discrimination tests together with the average hearing threshold as measured by pure tone audiometric tests at the frequencies of 1,000, 2,000, 3,000, and 4,000 cycles per second. To evaluate the degree of disability for bilateral defective hearing, the revised rating schedule establishes 11 auditory acuity levels designated from level I, for essentially normal acuity, through level XI for profound deafness. 38 C.F.R. §§ 4.85, 4.87, Diagnostic Codes 6100 to 6110, effective December 18, 1987 (1992). A 50 percent evaluation for bilateral hearing loss is assigned when the combination of hearing acuity levels in both ears is at levels X and VI, XI and VI, IX and VII, VIII and VIII, or IX and VIII. Review of the history of the appellant's bilateral hearing loss shows that it was initially manifested in service. The record includes reports of hearing testing dated well into the 1980's, including VA testing in September and October 1988. The veteran has referred to hearing problems over the years, to include his hearing testimony in September 1989. This will be addressed later in this discussion. The record shows that results reported on the VA audiological evaluation conducted in October 1988 were reviewed and certified in November 1988 as adequate for rating purposes. That evaluation revealed average pure tone thresholds of 55 and 61 decibels in the right and left ears, respectively, for the frequencies of 1,000, 2,000, 3,000 and 4,000 cycles per second. Speech recognition ability at that time was 96 percent correct in the right ear and 88 percent correct in the left ear. These findings indicate hearing acuity at level I in the right ear and level III in the left ear. This combination of hearing acuity levels is evaluated as noncompensable under 38 C.F.R. § 4.87, Diagnostic Code 6100 (1992). A VA audiological evaluation was conducted in October 1989. The results were certified as adequate for rating purposes. That evaluation revealed average pure tone thresholds of 65 and 59 decibels in the right and left ears, respectively, for the frequencies of 1,000, 2,000, 3,000 and 4,000 cycles per second. Speech recognition ability at that time was 84 percent correct in both ears. These findings indicate hearing acuity at level III in both ears. This combination of hearing acuity levels is evaluated as noncompensable under 38 C.F.R. § 4.87, Diagnostic Code 6100 (1992). The Board realizes that a longstanding hearing loss has been reported in the record. After reviewing the evidence, it is clear from the audiometric test results that an evaluation greater than 40 percent is not warranted under the schedular criteria. There is no basis to assign a higher rating under the provisions of 38 C.F.R. § 4.7 which states that, where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. The Board is unable to identify a reasonable basis for a grant of an evaluation in excess of 40 percent for bilateral hearing loss. The disability picture presented in this case is not so unusual as to render impractical the schedular rating criteria. For example, it is not shown that frequent hospitalizations or treatment has been required. The veteran, at his hearing and elsewhere, has referred to the use of hearing aids over the years, to include the use of hearing aids in both ears since 1988, and has reported that they have not been of much help when he has to talk on the phone at work, and that his income has been significantly reduced over the years as a result of his hearing loss. The record, however, shows that the veteran has been able to maintain full-time employment over the years since his discharge from service. The degree of compensation provided by the rating schedule adequately compensates the veteran for his hearing loss based on average impairment of earning capacity. Marked interference with employment as a result of hearing loss is not demonstrated. Thus, a higher rating on an extraschedular basis is not warranted. 38 C.F.R. § 3.321(b)(1) (1992). ORDER Restoration of a 40 percent disability evaluation for bilateral hearing loss is granted, effective from March 1989, subject to the laws and regulations governing the payment of monetary awards. An evaluation in excess of 40 percent for bilateral hearing loss is denied. BOARD OF VETERANS' APPEALS WASHINGTON, D.C. 20420 M. SABULSKY HARRY M. McALLISTER, M.D. J. U. JOHNSON 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.