Citation NR: 9610743 Decision Date: 04/19/96 Archive Date: 04/25/96 DOCKET NO. 94-17 302 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUE Entitlement to a compensable rating, including restoration of a 10 percent rating, for the veteran’s bilateral neurosensory hearing loss. REPRESENTATION Appellant represented by: Military Order of the Purple Heart ATTORNEY FOR THE BOARD Thomas H. Tousley, Counsel INTRODUCTION The veteran had active military service from August 1966 to August 1968. This matter comes before the Board of Veterans’ Appeals (Board) on appeal of an August 1993 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. As previously noted in a decision of the Board dated in August 1990, the veteran’s representative during the course of that appeal had raised the issue of service connection for tinnitus. In as much as that issue had not been developed for appellate review, the Board referred the matter to the RO for appropriate consideration. However, it appears that the RO has taken no action regarding this claim. This claim is not inextricably intertwined with the claim currently before the Board, see Harris v. Derwinski, 1 Vet.App. 180, 183 (1991), and it is again referred to the RO for appropriate action. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that the rating for his service- connected hearing loss should be increased, not reduced, due to the increase in severity of the disorder as evidenced by the issuance of bilateral hearing aids to him by the VA. The veteran asserts that he cannot hear normal conversation. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991 & Supp. 1995), 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 the evidence supports a rating of 20 percent for the veteran’s bilateral neurosensory hearing loss, but that the preponderance of the evidence is against a rating in excess of 20 percent. FINDINGS OF FACT 1. The veteran has submitted a well grounded claim for a compensable rating, including restoration of a 10 percent rating, for bilateral neurosensory hearing loss, and the evidence is sufficient to equitably decide his appeal. 2. By a rating decision in June 1982, the RO assigned a 20 percent evaluation for the veteran’s bilateral neurosensory hearing loss under the rating criteria for hearing loss then in effect. 3. In January 1986, the VA added paragraph 50.13b to the VA Adjudication Procedure Manual, M21-1, which specifically directed that VA adjudicators were not to reduce a disability rating due to a change in rating criteria or testing methods, and that the old rating criteria were to be applied in rating actions, rather than the new criteria, if there was no improvement in the disability sufficient to warrant a reduction under the old rating criteria. 4. In December 1987, new rating criteria for evaluating hearing loss became effective. 5. In January 1988, the Chief Benefits Director of the VA rescinded paragraph 50.13b of M21-1. 6. By a rating decision in November 1989, the RO reduced the rating for the veteran’s bilateral neurosensory hearing loss from 20 to 10 percent under the new rating criteria. 7. In December 1990, the United States Court of Veterans Appeals held that paragraph 50.13b of M21-1 was a substantive rule, and that the attempted rescission of that paragraph by the VA was invalid. 8. The results of VA audiometric testing of the veteran’s hearing in October 1989 and June 1993 revealed no improvement in the veteran’s bilateral neurosensory hearing loss under the old rating criteria during the period between those examinations. 9. Paragraph 50.13b of M21-1 was in effect and applicable to the rating of the veteran’s bilateral neurosensory hearing loss at the time of the RO’s rating decision in January 1994. 10. Pursuant to the old rating criteria for evaluating hearing loss, the veteran’s average decibel loss of both ears at the frequencies of 500, 1000, and 2000, warrants a 20 percent evaluation. CONCLUSION OF LAW The criteria for a rating of 20 percent for the veteran’s bilateral neurosensory hearing loss have been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991). 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.10, 4.85, 4.86, 4.87, Diagnostic Code 6292 (1986). REASONS AND BASES FOR FINDINGS AND CONCLUSION In the statements submitted by the veteran during the course of the current appeal, he has expressed anger and some confusion as to how his rating was reduced from 20 to 10 percent by a rating decision in November 1989 and from 10 percent to a noncompensable level by a rating decision in January 1994 since he now has to wear hearing aids. In order to provide the veteran with adequate reasons and bases for the Board’s decision in this appeal, it is necessary to discuss the history of changes in the way that the VA rates hearing loss. By a rating decision in June 1982, the RO assigned a 20 percent rating for the veteran’s bilateral neurosensory hearing loss under the rating schedule then in effect for evaluating hearing loss. At the time the RO assigned the 20 percent rating in 1982, the appropriate rating could be determined by the use of two alternative methods. One method of evaluation required the VA to determine the average decibel loss at the frequencies of 500, 1000, and 2000 hertz (Hz) derived from the pure tone thresholds part of the audiometric examination. The second method required the VA to determine the speech reception threshold, which was the decibel level at which a veteran recognized a certain percentage of words referred to as spondees, and to determine his speech discrimination ability, which was the percentage of two-syllable words identified by the veteran from a list of words spoken by the examiner. See 52 Fed. Reg. 17607 (May 11, 1987); 38 C.F.R. §§ 4.85, 4.87 (1986); VA Form 10- 2464 (May 1966), Summary Report Of Examination For Loss Of Organic Hearing Acuity (used for the veteran’s October 1982 VA audiometric examination). However, by the mid-1980’s: Acknowledging the many advances in hearing loss testing and improvement in hearing aid devices and further realizing that very little change was made to the rating and examination protocols by the VA during the past 30 years, Congress requested that the VA conduct a study on testing methods and assistive devices for hearing impairment. On January 6, 1986, the VA issued its “Report On Hearing Loss Study.” Among other things, the study report made two recommendations concerning testing methods that required significant changes in the Schedule for Rating Disabilities. In order to recognize the impact of hearing loss in higher frequencies and provide a more accurate picture of true hearing impairment, the report recommended that puretone averaging be accomplished using tone bursts at 1000, 2000, 3000, and 4000 Hz. It also recommended that speech discrimination be measured using the Maryland CNC word lists which contain words with sounds in the 3000 and 4000 Hz range. These two significant changes in testing parameters required complete revision of the current method for evaluating degree of disability. The Department of Veterans Benefits, in consultation with the Department of Medicine and Surgery, has developed amendments to [the Schedule for Rating Disabilities] to implement a revised schedule for rating hearing impairments based on the recommended changes in testing methods. The new schedule provides for evaluating hearing loss based on a combination of puretone averages and speech discrimination. This provides for a more accurate representation of actual hearing impairment by recognizing that individuals with slight to moderate decibel loss as determined by puretone averaging may have significant impairment in speech discrimination and vice versa.... Id. The amendments were determined to be “necessary because of new testing methods which produce greater emphasis on decibel loss and speech discrimination in higher frequency ranges” and the effect of which was “to provide more accurate measurement of hearing impairment and appropriate compensation to hearing disabled veterans.” The new rating criteria and methods became effective in December 1987. 52 Fed. Reg. 44117 (Nov. 18, 1987). However, as indicated by a letter the RO sent to the veteran in September 1989 in response to his earlier claim for an increased rating, the implementation of the new rating criteria could result in ratings to be reduced in many cases. In an attempt by the VA to prevent such reductions from occurring, the VA added a provision to the manual used by adjudicators. As described in Fugere v. Derwinski, 1 Vet.App. 103, 104 (1990): Paragraph 50.13(b) of the [VA’s] Adjudication Procedure Manual, M21-1 (hereinafter manual) 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.” It appears the change in the adjudication manual took place in January 1986. Id. at 109. However, in January 1989, the VA General opined that the manual provision was invalid because it contravened the Secretary’s authority to establish a Schedule for Rating Disabilities by establishing dual rating schedules for evaluating one disability, hearing loss. See VAOPGC 11-88 (VA Jan. 30, 1989). “Based upon this advisory opinion, the Chief Benefits Director effectively rescinded paragraph 50.13(b) by means of his November 23, 1988, internal memorandum to the Regional Directors.” Fugere v. Derwinski, 1 Vet.App. at 109 (1990). So at the time the RO evaluated the veteran’s hearing loss in November 1989, paragraph 50.13b was no longer was in effect, but the new rating criteria for evaluating hearing were in effect. By a rating decision in November 1989, the RO applied the new rating criteria which resulted in a reduction of the rating from 20 to 10 percent. This rating decision was affirmed by a Board decision in August 1990. Around this time, Congress was aware of the reduction of ratings resulting from the implementation of the new rating schedule, and of the rescission by the VA of paragraph 50.13b of M21-1, so Congress amended the law. See VAOPGCPREC 19-92 (O.G.C. Prec. 19-92), paragraph 3, 58 Fed. Reg. 12449 (1993). Section 103 of the Veterans’ Benefits Improvement Act of 1991, Pub. L. No. 102-86, 105 Stat. 414-415 (1991) was enacted to amend 38 U.S.C.A. § 1155 to add: However, in no event shall such a readjustment in the rating schedule cause a veteran’s disability rating in effect on the effective date of the readjustment to be reduced unless an improvement in the veteran’s disability is shown to have occurred. Id. at paragraph 1. However, Congress also made the law applicable only to those changes in rating schedules that took effect after August 14, 1991, the date of enactment of the amendment. See 38 U.S.C.A. § 1155 (West 1991). The intent of the new law was to insure that in the future no reduction in ratings would occur as the result of revisions in the rating criteria as has occurred in the case of hearing loss disabilities. See VAOPGCPREC 19-92 (O.G.C. Prec. 19-92), paragraph 4, 58 Fed. Reg. 12449 (1993). Therefore, the amendment to 38 U.S.C.A. § 1155 does not apply to the 1987 changes to the hearing loss rating criteria. As a result, the RO did not violate this law in January 1994 by reducing the veteran’s rating from 10 percent to a noncompensable level. However, subsequent to the Board’s August 1990 decision in this case affirming the first reduction of the rating of the veteran’s bilateral neurosensory hearing loss, and during the time that Congress was considering amending 38 U.S.C.A. § 1155, the United States Court of Veterans Appeals (Court) in December 1990 issued Fugere v. Derwinski, 1 Vet.App. 103 (1990), regarding the legality of the VA’s rescission of paragraph 50.13b of M21-1. The Court held that paragraph 50.13b is a substantive rule. Id. at 107. The Court further held that the attempted rescission of paragraph 50.13(b) by the Chief Benefits Director in November 1988 was invalid because it was not in observance of the procedural requirements of the Administrative Procedure Act (APA) which required the VA to provide notice and opportunity to comment on the proposed rescission. Id. at 110-111. The VA has not subsequently rescinded paragraph 50.13b in accordance of the APA. Therefore, the cumulative effect of the holding of Fugere and the amendment to 38 U.S.C.A. § 1155 is that paragraph 50.13b of M21-1 governs rating actions that resulted in the reduction of ratings because of changes made in the rating schedules between January 1986 and August 1991. The question arises as to how does one in a particular case determine whether a “decrease in evaluation is due to changed criteria or testing methods, rather than a change in disability.” As previously mentioned, Congress enacted the amendment of 38 U.S.C.A. § 1155 to prevent from occurring in the future the type of reduction in ratings that had occurred as the result of the change in rating criteria for hearing loss. In essence, both the amendment to 38 U.S.C.A. § 1155 and paragraph 50.13b require the same thing, an improvement in the disability before the rating can be reduced. The Board finds persuasive the interpretation by the VA General Counsel of the amendment to 38 U.S.C.A. § 1155 that the law requires that in evaluating a service-connected disability, the adjudicator “should consider both the new and the old rating criteria and apply the new criteria only if there has been sufficient improvement in disability to warrant reduction under the old criteria.” VAOPGCPREC 19-92 (O.G.C. Prec. 19-92), paragraph 6, 58 Fed. Reg. 12449 (1993). Therefore, the Board must determine whether at the time of the January 1994 rating reduction, the evidence established improvement in the veteran’s hearing loss to the extent that a reduction in rating would have been warranted under the old rating criteria. The task is complicated by the fact, as previously mentioned, that the old rating criteria were based on different methods of assessing hearing loss, but the results from the VA audiometric examinations in October 1989 and June 1993 are based on the new methods of assessing hearing loss. To summarize, the old rating criteria utilized either the results of pure tone audiometry by determining the average decibel loss at frequencies 500, 1000, 2000; or the results of controlled speech reception tests by considering together under Table VI the speech reception threshold and the percentage of speech discrimination ability. The VA audiologist certified whether the results of the pure tone audiometry or the results of the controlled reception tests most accurately reflected the veteran’s hearing loss. By contrast, the new rating criteria utilize both the results of pure tone audiometry by determining the average decibel loss at frequencies 1000, 2000, 3000, 4000; and the speech recognition percentage resulting from administration of the Maryland CNC word list. Therefore, the speech reception percentages derived from the October 1989 and June 1993 audiometric examinations are not equivalent to the results of the controlled reception test derived from the October 1982 VA audiometric examination. It would not be tenable for the Board to substitute under the old rating criteria the speech recognition percentages from the two most recent VA audiometric examinations for the values derived from the old controlled speech reception tests. However, pure tone thresholds have been used under both rating criteria with the only difference being the frequencies averaged. Furthermore, the old rating criteria provided for evaluating hearing loss solely upon the basis of pure tone thresholds. Thus, it is possible for the Board to use the pure tone thresholds from the two most recent VA audiometric examinations to rate his hearing loss under the old rating criteria to fairly determine whether there has been a improvement in the veteran’s hearing since the October 1989 VA audiometric examination. The Board will analyze the results of the 1989 and 1993 examinations under the method prescribed in 38 C.F.R. § 4.85(c) (1986). First, the literal designation for each ear will be ascertained under Table VII for the average decibel loss for the frequencies 500, 1000, and 2000, from the two most recent VA audiometric examinations. On the authorized audiometric evaluation in October 1989, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 20 50 55 80 90 LEFT 25 55 55 65 75 The average decibel loss at 500, 1000, and 2000 Hz for the right ear was 42 and for the left ear was 45. Under Table VII, the literal designation would be “B” both for the right ear and the left ear. Using Table VII again, the appropriate rating would be 10 percent under Diagnostic Code 6295 (horizontal line “B” intersecting with vertical line “B”). On the authorized audiometric evaluation in June 1993, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 20 60 55 75 85 LEFT 20 55 60 70 70 The average decibel loss at 500, 1000, and 2000 Hz for the right ear was 45 and for the left ear was 45. Under Table VII, the literal designation would be “C” both for the right ear and the left ear. Using Table VII again, the appropriate rating would be 20 percent under Diagnostic Code 6292 (horizontal line “C” intersecting with vertical line “C”). The results of pure tone audiometry from the two most recent VA audiometric examinations show the veteran’s hearing loss under the old rating criteria has increased in severity rather than improved. Thus, paragraph 50.13b of M21-1 requires that old criteria be applied with no reduction in rating be taken. Now that the veteran’s 10 percent rating must be restored, his additional claim for an increased rating also raises the question of which rating criteria should be applied in evaluating his hearing loss. However, paragraph 50.13b of M21-1 is clear. Since the rating would not be reduced under the old criteria, the old criteria must be applied which in this case means the veteran’s hearing loss warrants a 20 percent rating. As is true under the new rating criteria, the assignment of a disability evaluation for hearing loss under the old rating criteria was derived by the mechanical application of the tables of the rating schedule to the results of audiometric testing. See Lendenmann v. Principi, 3 Vet.App. 345, 349 (1992). An evaluation in excess of 20 percent is not warranted based on the mechanical application of the rating criteria of 38 C.F.R. § 4.87 (1986). In addition, the evidence does not show the veteran’s disability picture presents such an unusual or exceptional disability picture to warrant an increased rating on an extra-schedular basis under 38 C.F.R. § 3.321(b)(1) (1995). The veteran has not been hospitalized for the disorder. The Board notes that the veteran reported in August 1989 that his employer insisted that he receive treatment for hearing loss or “amplification” if he wanted to continue employment. However, there has not been presented any evidence that his hearing loss markedly interferes with his general employability with the use of hearing aids. There has not been demonstrated any other related factor to warrant an extra-schedular evaluation. The Board determines that the preponderance of the evidence is against a rating in excess of 20 percent for the veteran’s bilateral neurosensory hearing loss, leaving no reasonable doubt to be resolved in the veteran’s favor. 38 C.F.R. §§ 3.102, 4.3 (1995). The Board recognizes that application of the old rating criteria to the results of the June 1993 VA audiometric examination produces a dramatically different result. Under the new criteria, a noncompensable evaluation would be assigned based on the results of the June 1993 VA audiometric examination. Under Table VI of 38 C.F.R. § 4.87 (1995), the numeric designation for the right ear and the left ear would both be “III” based on average decibel loss of 69 and the speech recognition score of 84 percent for the right ear and the average decibel loss of 64 and the speech recognition score of 84 percent for the left ear. Applying the two numeric designations to Table VII, the rating would be noncompensable under Diagnostic Code 6100. However, the Board is bound to follow precedents of the Court. See Bethea v. Derwinski, 2 Vet.App. 252, 254 (1992). Since the Court invalidated the VA’s rescission of paragraph 50.13b of M21-1, this paragraph controls adjudication of this case and requires the granting of a 20 percent evaluation. The Court acknowledges that the VA General Counsel also opined that pursuant to the amendment of 38 U.S.C.A. § 1155, when an improvement in a disability is sufficient to warrant a reduction under the old rating criteria, the new rating criteria will be applied in that and future rating actions. VAOPGCPREC 19-92 (O.G.C. Prec. 19-92), paragraphs 6, 7; 58 Fed. Reg. 12449 (1993). Applying the old rating criteria in this case, the veteran’s ratings would be 20 percent based on the results of the 1982 speech reception examination, 10 percent based on the results of the 1989 pure tone thresholds, and 20 percent based on the 1993 pure tone thresholds. These ratings indicate an improvement in 1989. Thus, it could be argued that the new rating criteria have been in effect in this case since 1989. However, as previously noted, paragraph 50.13b of M21-1 had been rescinded by the VA in 1988, so it was not applicable at the time of the November 1989 rating decision, but as a result of the Fugere decision, it was applicable at the time of the January 1994 rating decision which is the subject of this appeal. Since the veteran’s hearing loss had not improved since 1989 according to the old rating criteria, paragraph 50.13b of M21-1 acts to preserve the rating of his hearing loss under the old rating criteria until his rating should be reduced under the old rating criteria. ORDER A rating of 20 percent for the veteran’s bilateral neurosensory hearing loss is granted subject to the laws and regulations governing the payment of monetary benefits. CONSTANCE B. TOBIAS Member, Board of Veterans' Appeals The Board of Veterans' Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, 741 (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 & Supp. 1995), 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, 102 Stat. 4105, 4122 (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. - 2 -