Decision Date: 10/04/95 Archive Date: 04/15/96 BOARD OF VETERANS' APPEALS DEPARTMENT OF VETERANS AFFAIRS WASHINGTON, DC 20420 DOCKET NO. 93-21 370 DATE OCT 04 1995 On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUES 1. Restoration of a 10 percent rating for bilateral hearing loss disability. 2. Increased (compensable) rating for bilateral hearing loss disability from July 13, 1992. 3. Effective date earlier than January 8, 1991, for a 10 percent rating for hearing loss disability. 4. Increased rating in excess of 10 percent for hearing loss disability for the period January 8, 1991, to July 13, 1992. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Appellant and spouse ATTORNEY FOR THE BOARD William L. Pine, Counsel INTRODUCTION The appellant served on active duty from June 1951 to October 1952. This appeal is from the August 1991 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO), which, in pertinent part, granted a 10 percent rating for bilateral hearing loss disability, effective January 8, 1991, and from the February 1993 rating decision, which reduced the rating for bilateral hearing loss disability to zero percent (noncompensable), effective July 13, 1992. The appellant initiated the claim from which the instant appeal arises by filing a VA Form 21-526 (Application for Compensation or Pension). He was at that time service connected for bilateral hearing loss disability, rated noncompensably disabling, and for a fracture of the left lateral malleolus, rated the same. The disabilities he noted on the form were hearing loss, "ringing in ears," and "broken leg." Although the claim was construed as an application for increased rating for hearing loss and for service connection for tinnitus, no action was taken regarding the "broken leg." It appears that claim must be either for a compensable rating for the service-connected residuals of a broken malleolus, or an original claim for service connection for some other injury. The matter should be clarified and appropriate action taken. CONTENTIONS OF APPELLANT ON APPEAL The appellant contends that the August 1991 rating decision should have assigned a rating higher than 10 percent for his bilateral hearing loss disability; that the effective date of the increase should have been in 1977; and that the rating was subsequently wrongly reduced to zero percent. 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(s). 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 the 10 percent disability rating for bilateral hearing loss disability should be restored; that an effective date earlier than January 8, 1991, for a compensable rating for bilateral hearing loss disability is not warranted; and that the claim for a compensable rating for bilateral hearing loss disability for the period commencing July 13, 1992, is moot. The facts in support of the appeal from the rating decision of August 1991, seeking a rating in excess of 10 percent, require further development prior to appellate review; a REMAND is appended to this decision for that purpose; appellate review of the merits of that claim is deferred. FINDINGS OF FACT 1. The VA audiology examinations of July and October 1992 were reported improperly. 2. The date of the appellant's claim for increased rating for bilateral hearing loss disability was January 8, 1991. 3. Evidence revealing an increase in hearing loss disability does not predate January 8, 1991; the evidence of record most recently prior to January 8, 1991, is dated in December 1977. CONCLUSIONS OF LAW 1. The reduction in disability rating for bilateral hearing loss disability implemented in the rating decision of February 1993 was based on examination reports inadequate to support the reduction, and restoration of the 10 percent rating is warranted. 38 U.S.C.A. 1155, 5107(b) (West 1991); 38 C.F.R. 4.1, 4.2, 4.85 (1994); VA Manual M21-1, Part VI, 7.11 (b) (change 16 Sep. 20, 1993). 2. The criteria for an effective date earlier than January 8, 1991, for a 10 percent rating for bilateral hearing loss disability are not met. 38 U.S.C.A. 5110(a), (b)(2) (West 1991); 38 C.F.R. 3.157(b)(1), 3.400(o)(2) (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSION The appellant filed a request for increased (compensable) rating for his service-connected bilateral hearing loss disability in April 1991. Based on VA outpatient records of January 1991 and a VA audiology examination in July 1991, a rating decision of August 1991 granted a compensable rating. He filed a timely notice of disagreement, seeking a rating greater than 10 percent. The appellant had a hearing before a VA hearing officer in May 1992. After two more VA audiology examinations, July and October 1992, the hearing officer in a December 1992 decision, ordered the reduction of the 10 percent rating for hearing loss to zero percent. He speculated that a notation of speech discrimination in the July 1991 examination report was probably a typographical error, and found the latter two reports accurate and sufficient evidence to reduce the rating. Disability ratings must be based on adequate examination reports. 38 C.F.R. 4. 1, 4.2 (1994). VA Audiometry examinations must be reported on prescribed forms, VA Manual M21-1, Part VI, 7.11(b) (change 16 Sep. 20, 1993), as was the examination of July 1991 on which the 10 percent rating was based. The subsequent examination reports were furnished to the RO in an unauthorized form, clearly defective on its face. They reported puretone sensitivity thresholds in decibels for some points of measurement labeled "a" through "e," and the average of sensitivities "b" through "e." By memorandum of August 25, 1992, the RO so informed the VA Medical Center that performed the examination of July 1992. The RO even attached a copy of the provisions of the VA manual to the memorandum. When another examination was performed in October 1992 and the report provided in the same defective form, it was accepted, and the rating was reduced. The defect in the audiology reports of July and October 1992 are only apparent when the defective reports are seen in juxtaposition with the examination correctly reported on VA Forms 10-2364 and 10-2464 in July 1991. The criteria for hearing loss ratings set forth in the VA Schedule for Rating Disabilities, 38 C.F.R. 4.85, Tables VI, VII (1994), include the average puretone decibel loss as one criterion. Table VI. Neither the rating schedule nor the VA Adjudication Manual, M21-1, specifies which frequencies are averaged. Reference to VA Form 10-2464 reveals that the 1000, 2000, 3000, and 4000 Hertz frequency responses are averaged for the application of Table VI. The raw data reported on VA Form 10-2364 (Audiological Evaluation) comprises air conduction responses at 250, 500, 1000, 1500, 2000, 3000, 4000, 6000 and 8000 Hertz. When the July 1992 examination report stated the air conduction puretone decibel sensitivities as data "a" through "e," it was impossible to know which five of the nine frequencies were referenced. The reported average of four of the undefined five frequencies was meaningless. The August 25, 1992, memorandum specifically requested the VAMC to provide the frequencies at which the reported measurements were taken. Instead, the VAMC repeated the process of reporting undefined data in October 1992, and the VA Hearing Officer speculated as to the probability of typographical errors in the correctly formatted audiometry report of July 1991 to justify accepting the improperly reported data and reduce the appellant's disability compensation. The July and October examination reports should both have been rejected as inadequate for rating purposes, 38 C.F.R. 4.1, 4.2 (1994), as the RO attempted to do regarding the July 1992 report. Whereas the reports were defective for rating purposes in the context of the appellant's quest for a rating higher than 10 percent, they were likewise inadequate to reduce a disability rating. The undersigned finds that the reduction in rating must be reversed and the 10 percent rating restored. Whereas the 10 percent rating is restored, there is not a noncompensable rating from which to appeal for an increase. The issue of entitlement to a compensable rating is moot, and the Board takes no further cognizance of it. The appellant seeks an earlier effective date for the 10 percent rating established as effective from January 8, 1991. The effective date of a disability rating is the date of receipt of the claim or the date entitlement arose, whichever is later, 38 C.F.R. 3.400 (1994), except, in a claim for increase in disability compensation, the effective date is the "earliest date as of which it is factually ascertainable that an increase in disability had occurred if claim is received within 1 year from such date otherwise, date of receipt of claim." 38 C.F.R. 3.400(o)(2) (1994). The appellant filed a claim for increased rating in April 1991 and the RO subsequently obtained VA outpatient treatment records of January 8, 1991, evidencing examination for impaired hearing. By regulation, those records constitute the date of the claim in this case. 38 C.F.R. 3.157(b)(1) (1994). There is a hiatus in the medical record from December 1977 to January 8, 1991. The appellant and his wife testified in May 1992 about the long period of tune during which the appellant's hearing had deteriorated. The criteria for rating hearing loss disability prescribe measurement in increments, of loss of puretone sensitivity and of speech recognition measured by specified method. 38 C.F.R. 4.85 (1994). Consequently, the hearing testimony does not render it factually ascertainable that the claim was received within one year of an increase in disability. The testimony, if anything, tends to suggest that the increase occurred several years before the claim, i.e., the claim was not filed within one year of the increase in disability. Thus, January 8, 1991, is the correct effective date for the 10 percent rating granted in August 1991, whether deemed the date of receipt of the claim, 38 C.F.R. 3.157(b)(1) (1994), or the earliest date as of which the increase in disability can be factually ascertained. 38 C.F.R. 3.400(o)(2) (1994). The appellant specifically argues for an effective date in 1977, alleging error in a rating decision of February 1978. That allegation is not amenable to appellate review. The Board of Veterans' Appeals decision of November 1978 denied an appeal from the noncompensable rating for bilateral hearing loss disability assigned in the rating decision of February 1978. The Board decision is final, 38 U.S.C.A. 7103(a), 7104(b) (West 1991), and the rating decision it affirmed is subsumed within Board decision. 38 C.F.R. 20.1104 (1994). Thus, even if the appellant alleges a clear and unmistakable error in the February 1978 rating decision, the Board decision bars review of the subsumed rating decision. Nor is the Board decision susceptible to collateral attack for such error by means of a claim now raised with the RO. See Smith v. Brown, 3 F.3d 1516 (Fed. Cir. 1994). The only means of obtaining an effective date in 1977 for a compensable rating for hearing loss disability is to file a motion for reconsideration with the chairman of the Board of Veterans' Appeals, 38 U.S.C.A. 7103(a) (West 1991), in the manner prescribed by regulation, see 38 C.F.R. 20.1000, 1001 (1994), and prevail. No such motion is of record. ORDER Restoration of a 10 percent raring for bilateral hearing loss disability is granted. Consequent to the restoration of a 10 percent rating for bilateral hearing loss disability, the claim for a compensable rating for that disability is moot. An effective date earlier than January 8, 1991, for a 10 percent rating for bilateral hearing loss disability is denied. REMAND The result of the above decision is to return the appellant's disability rating for hearing loss to the status quo ante the February 1993 rating decision. That is, his rating for bilateral hearing loss disability is as it was pursuant to the August 1991 rating decision, 10 percent. His appeal is in the status it was in as a result of his notice of disagreement; he appeals from the 10 percent rating, seeing a rating greater than 10 percent. Consequently, the issue styled "Increased rating in excess of 10 percent for hearing loss disability for the period January 8, 1991, to July 13, 1992," supra p. 1, is inapposite to the current status of his claim. The issue should be restyled as entitlement to an increased rating for bilateral hearing loss disability, currently rated as 10 percent disabling. Whereas the rating decision that reduced the now restored rating was based on defective examination reports, the RO should have the appellant re-examined, and refuse to accept any examination report that is not correctly reported. When that is accomplished, the claim may be readjudicated, with such results as the facts dictate. The RO should be mindful, however, that the effective date of the 10 percent rating is January 8, 1991. Any rating action after January 8, 1996, that contemplates reduction in rating will be subject to the requirements of the regulation on stabilization of disability ratings. 38 C.F.R. 3.344(a) (1994). Accordingly, the case is REMANDED for the following action: 1. Afford the appellant a VA audiology examination, with the results reported on VA Forms 10-2364 and 102464, as per VA Manual M21-1, Part VI, 7.11 (b), accepting no other form of report as adequate for rating purposes. 2. Readjudicate the appellant's claim as entitlement to an increased rating for bilateral hearing loss disability, currently rated as 10 percent disabling. If readjudication occurs after January 8, 1996, consider 38 C.F.R. 3.344(a) if reduction is contemplated. Provide the appellant and his representative with a supplemental statement of the case. Following completion of the above actions, the case should be returned to the Board for further appellate consideration, as appropriate. No action is required of the appellant until he receives further notice. This REMAND is to develop evidence. Further appellate review is deferred pending completion of the dictates of this order. The Board intimates no opinion as to the final outcome warranted in this case. C. P. RUSSELL 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. 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. Appellate rights do not attach to those issues addressed in the remand portion of the Board's decision, because a 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) (1994).