BVA9406271 DOCKET NO. 91-42 008 ) DATE ) ) ) THE ISSUES 1. Whether new and material evidence has been submitted to reopen a claim of service connection for a left shoulder disability. 2. Entitlement to restoration of a 40 percent evaluation for service-connected defective hearing. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Mark F. Halsey INTRODUCTION The veteran served on active duty from June 1951 to October 1953, and from February 1961 to April 1968. This matter was before the Board of Veterans' Appeals (Board) in July 1992 when it was remanded to the Nashville, Tennessee Regional Office (RO) for further development. In its remand, the Board directed the originating agency to, among other things, adjudicate the issue of entitlement to service connection for tinnitus. This was done by a December 1992 rating decision--service connection for tinnitus was granted. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that the evidence of record shows that he injured his left shoulder in service and has had problems since, including difficulties that required surgery in 1986 and again in 1990. He also maintains that a 40 percent rating for his defective hearing should not have been reduced to 20 percent because there has been no improvement in his condition. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991), has reviewed and considered all of the evidence and material of record in the veteran's claims file. Based on its review of the relevant evidence in this matter, and for the following reasons and bases, it is the decision of the Board that new and material evidence to reopen a claim of service connection for a left shoulder disorder has not been presented. It is also the decision of the Board that an April 1989 rating decision which reduced the veteran's 40 percent evaluation for defective hearing to a 20 percent level was improper; entitlement to restoration of the 40 percent rating is warranted. FINDINGS OF FACT 1. The evidence that has been received since a July 1988 decision of the Board denying service connection for a left shoulder disorder does not raise a reasonable possibility of changing the outcome of the 1988 decision. 2. The rating criteria by which impaired hearing acuity is evaluated were changed effective December 18, 1987. 3. 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. 4. By an April 1989 rating action, a reduction of the veteran's 40 percent rating for defective hearing was made. This was done as a result of application of the new rating criteria. 5. Failure to apply the provisions of paragraph 50.13(b) of the Manual was improper. CONCLUSIONS OF LAW 1. New and material evidence warranting reopening of a claim of service connection for a left shoulder disorder has not been received. 38 U.S.C.A. §§ 1110, 1131, 5107, 5108, 7104 (West 1991); 38 C.F.R. §§ 3.156, 20.1100, 20.1105 (1993). 2. The reduction of a 40 percent rating for service-connected defective hearing was improper. 38 U.S.C.A. §§ 1155, 5107, 7104 (West 1991); 38 C.F.R. §§ 4.85, 4.87, Table VI, Table VII, 4.87a (1987); 38 C.F.R. §§ 4.85, 4.87, Table VI, Table VII (1988); Department of Veterans Affairs, Adjudication Procedure Manual, M21-1, Part 1, paragraph 50.13(b). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Left Shoulder Initially, the Board finds that the veteran's claim for service connection is well grounded within the meaning of 38 U.S.C.A. § 5107 (West 1991). That is, he has submitted a claim which is plausible-- capable of substantiation. Murphy v. Derwinski, 1 Vet.App. 78 (1990). This is particularly so in light of service medical records showing treatment for left shoulder pain in 1967, the veteran's testimony that he had had pain since leaving service, an August 1987 notation from a pharmacist that the veteran had been supplied with medication for a left shoulder condition from 1969 through 1975, and VA records dated in the mid-1980s showing surgery to repair a left shoulder rotator cuff tear. In short, this sort of evidence tends to support his claim, making it plausible. It should be noted at this point that a claim of service connection for a left shoulder disorder was denied previously by the Board--on two occasions--in September 1986 and again in July 1988. These denials are final. § 20.1100. Pursuant to § 5108, a previously and finally disallowed claim may be reopened only when "new and material evidence" is presented or secured with respect to that claim. See 38 U.S.C.A. § 7104(b) (West 1991). In determining whether new and material evidence has been presented, VA must review the new evidence "in the context of" the old. See Jones v. Derwinski, 1 Vet.App. 210, 215 (1991). "New" evidence is that which is not "merely cumulative" of other evidence in the record. Colvin v. Derwinski, 1 Vet.App. 171, 174 (1991). Additionally, evidence is "material" when it is relevant and probative of the issue at hand and there is "a reasonable possibility that the new evidence, when viewed in the context of all the evidence, both new and old, would change the outcome." Colvin v. Derwinski, 1 Vet.App. 171, 174 (1991). It should also be pointed out that, in determining whether evidence is new and material, "credibility of the evidence must be presumed." Justus v. Principi, 3 Vet.App. 510, 513 (1992). In the case at hand, evidence received after the July 1988 denial includes the veteran's testimony at an August 1991 hearing, a VA hospital report dated in January 1990, and VA treatment records dated April 11, 1990, and July 11, 1990. As for his testimony, the veteran indicated that he had had pain in his left shoulder since his separation from service, that he had sought treatment over the years, but that the records were unavailable because of the death of the physician who treated him. This is virtually identical to the information provided by the veteran in testimony given in July 1987. His testimony does not provide any new information regarding the time of onset of a chronic left shoulder disorder. Consequently, the testimony provided in August 1991 is not new. The new treatment reports, including the January 1990 report of left shoulder surgery, shows that the veteran had had surgery once before in 1986. These records also show that he was bothered by shoulder problems again and, as a result, underwent surgery in January 1990. No reference is made to the etiology or time of onset of the chronically disabling left shoulder difficulties. Consequently, this evidence cannot be said to be material. It merely confirms what was already established by the 1986 reports available to the Board in 1988--that the veteran currently has a chronic left shoulder disorder. Therefore, it does not raise a reasonable possibility of changing the outcome of the July 1988 decision of the Board. There being no new and material evidence, the claim of entitlement to service connection is not reopened. Defective Hearing 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 § 5107. That is, we find that he has presented a claim that is plausible. Moreover, the Board finds that the failure to take into account Manual provisions set forth in paragraph 50.13(b) renders the April 1989 reduction 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 April 1989 rating decision shows that the criteria for rating impaired hearing that were made effective December 18, 1987, were applied in the veteran's case. This resulted in a reduction from 40 percent to 20 percent. However, as noted above, the application of paragraph 50.13(b) 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. This memorandum rescinded the Manual provisions contained in paragraph 50.13(b). Nevertheless, the decision to rescind this paragraph has been held to be a 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 is improper. (The Board's review of audiometric test findings conducted both before and after the implementation of the new criteria does not result in a finding that there was improvement in hearing acuity that would warrant a decrease in the veteran's rating.) ORDER New and material evidence to reopen a claim of service connection for a left shoulder disorder has not been presented; the appeal in this regard is denied. Restoration of a 40 percent evaluation for the veteran's service- connected defective hearing is granted, subject to the laws and regulations governing the award of compensation benefits BOARD OF VETERANS' APPEALS WASHINGTON, D.C. 20420 * 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. 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.