BVA9414971 DOCKET NO. 92-19 791 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to an increased rating for bilateral hearing loss, to include the propriety of a prior reduction from 10 percent to noncompensable. REPRESENTATION Appellant represented by: Alabama Department of Veterans Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Christopher P. Kissel, Associate Counsel INTRODUCTION The appellant served on active duty from August 1975 to July 1983. This case comes to the Board of Veterans' Appeals (the Board) on appeal from a July 1992 rating decision of the Montgomery, Alabama, Department of Veterans Affairs Regional Office (VARO), which denied a claim for an increased rating for bilateral hearing loss, currently evaluated as noncompensable. A thorough review of the claims file reveals that restoration of the previously assigned 10 percent disability rating for the appellant's bilateral hearing loss is in order. Although the Board does not ordinarily consider issues which were not developed for appellate review, the Board is required to conduct a de novo review of the VARO's underlying benefit decision. Hence, the Board may consider arguments, statutes, regulations, and claims which have not been considered by the VARO, if the appellant will not be prejudiced by such action. Smith v. Derwinski, 2 Vet.App. 137, 140 (1992). In the instant case, the record is sufficiently developed so that the Board may reach a decision regarding the restoration issue without prejudice to the appellant. CONTENTIONS The appellant contends that her bilateral hearing loss has not improved and that, in fact, it has increased in severity. She believes it "inconceivable" that she is required to wear two VA- provided hearing aids, and the rating for her service-connected bilateral hearing loss was reduced to noncompensable in July 1990. She reports that she wears her hair over her ears because she is self-conscious of her hearing aids, and even though they are "state of the art" equipment, her hearing is distorted and not as clear as normal hearing. 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. In accordance with the decision of the United States Court of Veterans Appeals in Fugere v. Derwinski, 1 Vet.App. 103 (1990), aff'd, 972 F.2d 331 (Fed. Cir. 1992), and for the reasons and bases hereinafter set forth, it is the decision of the Board that the appellant's prior rating of 10 percent for bilateral defective hearing should be reinstated, but that the preponderance of the evidence is against the assignment of an evaluation in excess of 10 percent. FINDINGS OF FACT 1. The reduction of the appellant's 10 percent disability evaluation for bilateral hearing loss to noncompensable by an April 1990 rating decision was improper, as the reduction was based solely on a change in rating criteria absent any showing of auditory improvement. 2. Bilateral hearing loss is currently manifested by numeric designations of II in the right ear and II in the left ear. CONCLUSIONS OF LAW 1. Restoration of a 10 percent rating for bilateral hearing loss from July 1, 1990, is warranted inasmuch as the reduction of the rating was improper. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. Part 4, Diagnostic Code 6293, as in effect on December 17, 1987; VA Adjudication Procedure Manual, M21-1, Part I, paragraph 50.13(b). 2. Bilateral hearing loss is not more than 10 percent disabling. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. § 4.85 (1993) and Part 4, Diagnostic Code 6100, effective December 18, 1987. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Initially, the Board finds that the appellant has submitted evidence which is sufficient to justify a belief that her claim is well grounded. 38 U.S.C.A. § 5107(a) (West 1991) and Murphy v. Derwinski, 1 Vet.App. 78 (1990). Furthermore, the undersigned believes that this case has been adequately developed for appellate purposes by VARO and that a disposition on the merits is in order. A rating decision in September 1986 established entitlement to service connection for bilateral defective hearing. Pursuant to the schedular criteria in effect at that time, a 10 percent evaluation was assigned on the basis of a July 1986 VA audiogram which revealed average speech reception thresholds, based on acuity at 500, 1000 and 2000 hertz, of 40 and 44 decibels in the right and left ears, respectively, and discrimination ability of 96 and 92 percent correct in the right and left ears, respectively. A rating decision in April 1990 reduced the appellant's disability rating from 10 percent to noncompensable, effective July 1, 1990. The average speech reception thresholds reflected on VA audiogram in March 1990, on which the April 1990 rating reduction was based, were 50 and 55 decibels in all tested frequencies for the right and left ears, respectively. A comparison of the results of this latter audiogram with the results reflected on the July 1986 audiogram clearly demonstrates that the appellant's hearing had not improved since 1986. The April 1990 rating reduction to a noncompensable evaluation was made pursuant to revised regulatory criteria, as contained in Diagnostic Code 6100, which became effective December 18, 1987. However, despite the adoption of revised criteria, veterans were to be protected against a reduction in benefits if there had not been improvement in the condition or disability. Paragraph 50.13(b) of the VA's Adjudication Procedure Manual, Part I, M21- 1, specifically provided the following direction to 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 an internal memorandum dated November 23, 1988, rescinded paragraph 50.13(b) of the M21-1. Such rescission had the effect of legitimizing a reduction in benefits for service- connected defective hearing based solely upon revised schedular criteria, with no demonstrated clinical improvement in the hearing loss. The United States Court of Veterans Appeals (the Court), in Fugere v. Derwinski, 1 Vet.App. 103 (1990), aff'd. 972 F.2d 331 (Fed. Cir. 1992), found that in deleting paragraph. 50.13(b) 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 in accordance with 38 C.F.R. §§ 1.12 and 1.551(c). The Court therefore held that the attempted rescission of paragraph 50.13(b) of the M21-1 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). In light of the Court's holding in Fugere, paragraph 50.13(b) of the M21-1 must be considered a valid substantive rule. As the facts of this case show that the reduction of the evaluation for the appellant's bilateral hearing loss by the April 1990 rating decision was based solely on an application of the revised criteria without demonstrated improvement shown in the severity of the disability, such reduction was in contradiction of paragraph 50.13(b) of the M21-1, and was therefore improper. Hence, in accordance with the Court's holding in Fugere, the Board holds that the appellant's evaluation for her bilateral hearing loss is restored to 10 percent, as of the date of reduction: July 1, 1990. In deciding whether a rating in excess of 10 percent is warranted currently, the Board must apply the revised criteria made effective from December 18, 1987. According to the VA's Schedule for Rating Disabilities, evaluations for bilateral hearing loss range from noncompensable to 100 percent based on organic impairment of hearing acuity. Hearing loss is measured by the results of controlled speech discrimination tests together with the average hearing threshold level as measured by pure tone audiometry tests in the frequencies of 1,000, 2,000, 3,000 and 4,000 cycles per second. 38 C.F.R. § 4.85, Part 4, Codes 6100- 6110 (1993). To evaluate the degree of disability from the service-connected bilateral defective hearing, the rating schedule provides 11 numeric designations from level I for essentially normal acuity through XI for profound deafness. Id. Current medical evidence regarding the appellant's bilateral hearing loss includes the report of VA audiology examination conducted in June 1992. Based on the specific results found during the course of that examination, the numeric designation of hearing impairment for an average puretone decibel loss of 56 with 88 percent correct speech discrimination in the left ear is II. The numeric designation for the right ear (57 average puretone decibel loss with 88 percent correct speech discrimination) is also II. With the application of the schedular criteria, Table VII of 38 C.F.R. § 4.85 (1993), these test results warrant a noncompensable evaluation under diagnostic code 6100. Although such scores would require the assignment of a noncompensable evaluation, which is clearly a reduction from the previously assigned 10 percent rating, as indicated above, the provisions of paragraph 50.13(b) of the M21-1 preclude such a reduction. The evaluations derived from the rating schedule are intended to make proper allowance for improvement by hearing aids, and examinations to determine such improvement are, therefore, unnecessary. See 38 C.F.R. § 4.86 (1993). As such, the payment of additional compensation based solely upon the fact that the appellant requires the use of assistive devices such as hearing aids is inconsistent with the the purpose of VA compensation. See 52 Fed. Reg. 44,118 (1987). In summary, the degree of hearing impairment shown by the recent medical findings does not establish a level of severity for which an evaluation higher than 10 percent is warranted under the applicable law and regulations effective on and after December 18, 1987. While the Board is sympathetic to the appellant's complaints concerning the practical difficulties she may experience in everyday life secondary to her bilateral hearing loss, we are constrained by a mechanical application of the facts in this case to the applicable law and regulations. See Lendenmann v. Principi, 3 Vet.App. 345, 349 (1992). Accordingly, although an evaluation less than the previously assigned 10 percent may not be assigned on account of the provisions of paragraph 50.13(b), neither does the rating schedule permit an evaluation greater than 10 percent at this time. 38 C.F.R. § 4.85 and Part 4, Code 6100 (1993). Application of extraschedular provisions is not warranted in this case. 38 C.F.R. § 3.321(b) (1993). There is no evidence that the disability presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards. The evidence in this case is not so evenly balanced so as to allow consideration of the benefit of the doubt rule as required under the provisions of 38 U.S.C.A. § 5107(b) (West 1991). ORDER Restoration of a 10 percent evaluation for bilateral hearing loss is granted, subject to the laws and regulations governing the payment of monetary benefits. A disability evaluation in excess of 10 percent for bilateral hearing loss is denied. J. F. GOUGH Member, Board of Veterans' Appeals The Board of Veterans' Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___ (1994), permits a proceeding instituted before the Board to be assigned to an individual member of the Board for a determination. This proceeding has been assigned to an individual member of the Board. (CONTINUED ON NEXT PAGE) 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.