BVA9503639 DOCKET NO. 89-13 111 ) DATE ) RECONSIDERATION ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to service connection for vertigo. 2. Entitlement to restoration of a 30 percent evaluation for bilateral defective hearing. 3. Entitlement to a disability evaluation in excess of 30 percent for bilateral defective hearing. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Christopher B. Moran, Counsel INTRODUCTION The veteran served on active duty from February 1943, to April 1946; from November 24, 1950, to October 3, 1952; and from October 6, 1952, to May 31, 1975. A Department of Veterans Affairs (VA) Regional Office (RO) decision in January 1988 assigned an increased 30 percent rating for the veteran's bilateral defective hearing, effective from July 1987, utilizing the VA rating criteria in effect prior to December 18, 1987. A rating decision in February 1989 denied service connection for vertigo and reduced the veteran's 30 percent rating for defective hearing to 10 percent. In a January 1990 decision, the Board of Veterans' Appeals (Board) denied service connection for vertigo and for a disability evaluation in excess of 10 percent for bilateral hearing loss. A rating determination dated in April 1992 assigned an increased 20 percent evaluation for hearing loss effective from December 23, 1991. The veteran appealed that decision to the Board. In October 1994, the Board, on its own motion, ordered reconsideration of its January 1990 decision that denied service connection for vertigo and a disability evaluation in excess of 10 percent for defective hearing, in accordance with the provisions of 38 U.S.C.A. § 7103 (West 1991). The case is now before an expanded reconsideration panel of the Board and the final decision will replace the Board's January 1990 decision regarding service connection for vertigo and an increased evaluation for bilateral hearing loss and subsumes the current issue of entitlement to an increased evaluation for hearing loss. CONTENTIONS OF APPELLANT ON APPEAL The veteran seeks review of the February 1989 rating determination that reduced the 30 percent evaluation for bilateral hearing loss to 10 percent, based on new rating criteria that went into effect in December 1987. In effect, it is argued that paragraph 50.13(b) of the VA Adjudication Procedure Manual (M21-1) was changed to his detriment in violation of the Administrative Procedure Act and that he was not given notice and opportunity to comment. Moreover, it is argued that the record lacks any evidence of improvement in hearing acuity when audiometric scores are measured under the old rating criteria for hearing loss. 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 February 1989 rating decision erroneously reduced the disability evaluation for bilateral hearing loss, and a 30 percent evaluation is restored. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of this appeal has been obtained by the RO. 2. The reduction of the 30 percent evaluation for bilateral hearing loss to a 10 percent evaluation by a rating determination in February 1989 was improper. CONCLUSION OF LAW A 30 percent evaluation is restored for bilateral hearing loss. 38 U.S.C.A. §§ 1155, 5107 (West 1991); Fugere v. Derwinski, 1 Vet.App. 103 (1990); 38 C.F.R. §§ 4.85, 4.87, Diagnostic Code 6280 (effective prior to December 18, 1987). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duty to Assist We note that we have found that the veteran's claims are "well grounded" within the meaning of statute and judicial construction. 38 U.S.C.A. § 5107(a) (West 1991); Murphy v. Derwinski, 1 Vet.App. 78, 81 (1990). The VA, therefore, has a duty to assist the veteran in the development of facts pertinent to his claims. II. Increased Rating The veteran seeks review of the February 1989 decision of the RO that reduced the 30 percent evaluation for service-connected bilateral hearing loss to 10 percent. It is argued that paragraph 50.13(b) of M21-1 was changed to his detriment in violation of pertinent provisions of the Administrative Procedure Act in that he was not given notice and an opportunity to comment. Disability evaluations are based, as far as practicable, upon the average impairment of earning capacity resulting from the disability. 38 U.S.C.A. § 1155 (West 1991). Evaluations for bilateral hearing loss under the criteria in effect prior to December 18, 1987, 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 regional office or authorized audiology clinic examinations. 38 C.F.R. § 4.85 and Part 4, Diagnostic Codes 6277 to 6297, effective prior to December 18, 1987. Prior to the February 1989 rating decision, the bilateral hearing loss was rated 30 percent disabling, based on the criteria in 38 C.F.R. §§ 4.85, 4.87, 4.87a, Diagnostic Code 6280, which were in effect at the time of a January 1988 rating decision that granted an increased rating of 30 percent for hearing loss. A historical review of the record shows a rating determination of August 1979 initially established service connection for bilateral hearing loss based upon aggravation in service, with an evaluation of 20 percent. On December 15, 1987, the veteran was afforded a VA audiometric examination. Speech reception threshold in the right ear was 100-plus decibels and 46 decibels in the left ear. Discrimination ability was 0 percent in the right ear and 84 percent in the left ear. Based upon the rating criteria in effect prior to December 18, 1987, a rating determination dated in early January 1988 correctly awarded an increased 30 percent evaluation for bilateral hearing loss under 38 C.F.R. Part 4, Diagnostic Code 6280, effective from July 16, 1987. On VA audiological evaluation in June 1988, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 100 100 95 110 no response LEFT 40 45 55 70 85 Speech audiometry revealed speech recognition ability of 0 percent in the right ear and of 90 in the left ear. The hearing loss remained consistent with the criteria for a 30 percent evaluation under the old criteria in effect prior to December 18, 1987; however, under the new criteria in effect since December 18, 1987, the hearing loss was consistent with level III, hearing in the left ear, and XI level hearing in the right ear with corresponding rating of 20 percent under 38 C.F.R. Part 4, Diagnostic Code 6102. On VA audiological evaluation on December 29, 1988 pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 105-plus 105-plus 105-plus 105-plus 105-plus LEFT 35 45 50 85 90 Speech audiometry revealed speech recognition ability of 0 percent in the right ear and of 96 in the left ear. The examination findings under the new schedular criteria resulted in pure tone threshold average in the right ear of 105-plus with speech recognition ability of 0 percent (XI) and pure tone threshold average of 68 decibels in the left ear with speech recognition ability of 96 percent (level II) converting to a 10 percent evaluation in accordance with 38 C.F.R. Part 4, Diagnostic Code 6101. Under the old criteria in effect prior to December 18, 1987, the hearing acuity findings converted to 20 percent . A private audiology examination of June 1989 revealed the following: HERTZ 500 1000 2000 3000 4000 RIGHT 100 105 110 not shown 110 LEFT 50 50 65 not shown 95 Speech audiometry revealed speech recognition ability of 86 percent in the left ear. On VA audiological evaluation in July 1989, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT NR NR NR NR NR LEFT 50 55 60 95 Speech audiometry revealed speech recognition ability of 76 percent in the left ear. (We note that the right ear was not tested, but the veteran had been and continues to be deaf in the right for years. Therefore, right ear findings would not have any effect on the evaluation of the veteran's hearing loss.) The February 1989 rating decision subsequently reduced the rating for hearing loss on the basis of the rating criteria that became effective on December 18, 1987. As it stands, this matter must be considered in view of the United States Court of Veterans Appeals' (Court) decision in Fugere v. Derwinski, 1 Vet.App. 103 (1990). Although paragraph 50.13(b) of Part I of M21-1 provides instruction to the effect that no change in the rating should be made on the basis of a change in the rating criteria or testing methods, the originating agency apparently relied on a November 23, 1988, internal memorandum from VA Chief Benefits Director which rescinded paragraph 50.13(b). Consequently, the new criteria were used to evaluate the veteran's hearing loss and his rating was reduced. In Fugere, the Court held that deletion of paragraph 50.13(b), without giving notice or an opportunity to comment as required by the Administrative Procedure Act, was inappropriate; in other words the provisions of paragraph 50.13(b) should still be given full force and effect. M21-1 provides that the old criteria are to be used in instances where a "...decrease in evaluation is due to changed criteria or testing methods, rather than a change in disability...."Paragraph 50.13(b). While application of paragraph 50.13(b) would seemingly lead to a restoration of the veteran's 30 percent, such a restoration would, as noted in paragraph 50.13(b), be appropriate only when there has been no change in the veteran's disability. In short, if the evidence shows that the veteran's hearing acuity had improved under the older criteria, a reduction might still be appropriate. Otherwise, the previously assigned 30 percent evaluation should be restored. A comprehensive analysis of the record shows that the reduction of the prior 30 percent evaluation for service-connected bilateral hearing loss to 10 percent was in error and that the 30 percent rating must be reinstated as there was no improvement demonstrated under the old criteria. For example, consistent with the December 1987 VA examination that provided the basis for a grant to 30 percent for hearing loss, the next VA examination in June 1988 clearly indicated that a 30 percent rating under the old criteria was appropriate. A subsequent VA examination in December 1988 was borderline as to whether improvement was shown; however, the following private examination revealed findings of decibel loss that were not indicative of improvement. VA examination in July 1989 also showed no improvement in the veteran's hearing acuity, and all examinations since that time have shown no improvement. In sum, the Board cannot conclude that improvement was shown. Since the reduction of the evaluation for the bilateral hearing loss in the February 1989 rating decision was based on changed criteria or testing methods, rather than a change in disability, the reduction was in contradiction of paragraph 50.13(b), and, therefore, improper. Hence, in accordance with the decision in Fugere, the Board finds that the evaluation for bilateral hearing loss is restored to 30 percent, as of the date of the reduction, June 1, 1989. ORDER Restoration of a 30 percent disability rating for bilateral hearing loss is granted subject to the law and regulations governing the criteria for an award of monetary benefits. REMAND With regard to the veteran's claim for service connection for vertigo, a VA examination of May 1990 indicates that residuals of a right stapedectomy could be the reason for the veteran's vertigo. The examiner pointed to various considerations in pinpointing the etiology of vertigo, including injury to the saccule of the inner ear, perilymphatic fistula, a prosthesis that was too long, or Meniere's disease. On VA examination of February 1992, the pertinent assessment was episodic vertigo, possibly benign positional. The examiner recommended an electronystagmogram to further evaluate the vertigo. The record does not contain any indication that special testing was subsequently performed. The veteran has also reported that he has taken medication for control of vertigo since service discharge. In order to provide the veteran with every opportunity to support his claim for service connection for vertigo and for a rating in excess of 30 percent for hearing loss, the Board finds it necessary to REMAND for the following: 1. The veteran should be contacted for the names and addresses of all medical sources who have treated him for vertigo or who have provided him with prescriptions for medication for vertigo since service discharge. After obtaining any necessary releases, the RO should attempt to obtain medical records from the named sources. 2. The veteran should be afforded an examination by an otolaryngologist or other specialist in order to determine the etiology of the veteran's vertigo. All indicated studies must be completed, including electronystagmography or x-rays of the internal auditory canals. Once the etiology of the vertigo is identified, the examiner should provide an opinion as to whether it is at least as likely as not that the disorder is causally related to the symptoms shown during service or to the service-connected sensorineural hearing loss or tinnitus. Audiologic testing for rating purposes should also be completed. The claims folder must be made available to the examiner for review. 3. After the development requested above has been completed to the extent possible, the RO should again review the record. If any benefit sought on appeal remains denied, the appellant and his representative should be furnished a supplemental statement of the case and given the opportunity to respond thereto. Thereafter, the case should be returned to the Board, if in order. The Board intimates no opinion as to the ultimate outcome of this case. The appellant need take no action unless otherwise notified. GARY L. GICK WILLIAM J. REDDY M. SABULSKY GEORGE R. SENYK SHANE A. DURKIN DEREK R. BROWN 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) (1993).