Compensation for Certain Cases of Bilateral Deafness

AGENCY:

Department of Veterans Affairs.

ACTION:

Final rule.

SUMMARY:

This document amends the Department of Veterans Affairs (VA) adjudication regulations concerning how to rate claims of veterans with bilateral hearing impairment when hearing loss in one ear is service connected and hearing loss in the other ear is not. The amendment is necessary to implement a statutory provision of the Veterans Benefits Act of 2002, which will now factor in nonservice-connected hearing loss of one ear when hearing loss in the other ear is service connected and hearing loss manifests to a specified degree. This enables VA to pay compensation for such claims as if the combined hearing loss in both ears is service connected. These amendments are non-substantive because they are restatements of statutes and interpretive rules.

DATES:

Effective Date: In accordance with statutory provisions, these amendments to 38 CFR 3.383(a)(3) are effective December 6, 2002.

FOR FURTHER INFORMATION CONTACT:

Beth McCoy, Consultant, Regulations Staff, Compensation and Pension Service (211A), Veterans Benefits Administration, Department of Veterans Affairs, 810 Vermont Ave, NW., Washington, DC 20420 telephone (202) 273-7211.

SUPPLEMENTARY INFORMATION:

On December 6, 2002, the Veterans Benefits Act of 2002, Public Law 107-330 (the Act), was enacted. Certain provisions of the Act directly affect the payment of VA compensation or pension benefits. Section 103 of the Act altered the level at which compensation is payable to a veteran for hearing impairment when both ears are affected.

When veterans have a specified degree of disability that is service connected in certain organs or extremities and there is nonservice-connected disability affecting the corresponding “paired” organ or extremity, section 1160 of title 38, United States Code, authorizes VA to pay disability compensation as if the combination of service- and non-service connected disabilities in those paired organs or extremities were service connected. Bilateral deafness is covered by this statute. Prior to the Act, 38 U.S.C. 1160(a)(3) authorized VA to pay compensation as if deafness in both ears were service connected when a veteran had service-connected total deafness in one ear along with total deafness in the other ear due to nonservice-connected disability and not the result of the veteran's willful misconduct.

Under the Act, Congress amended section 1160(a)(3) to eliminate the total deafness requirement. The statute now authorizes payment of compensation when a veteran has deafness in one ear compensable to a degree of 10 percent or more as a result of service-connected disability and deafness in the other ear as a result of nonservice-connected disability.

Congress amended 38 U.S.C. 1160(a)(3) to eliminate the extreme requirement that there be complete and total deafness in both ears before compensation is payable for this paired organ combination. The legislative history reflects that the amendment was introduced as part of Senate Bill 2237 to correct a long-standing inequity in compensating veterans with paired organ hearing loss compared with the way VA compensates involvement of a veteran's other paired organs or paired extremities, such as eyes, kidneys, or hands. (148 Cong. Rec. S 3305, April 24, 2002.) The first version of the bill struck “total” from both places it appeared in section 1160(a)(3) so that the statute would compensate for paired organ hearing loss when a veteran had service-connected deafness in one ear and nonservice-connected deafness in the other ear. (148 Cong. Rec. S 3305-06, April 24, 2002.)

To mirror the exceptions made for other paired organ or extremity combinations in 38 U.S.C. 1160, a manager's amendment to the committee bill was substituted to allow VA to consider partial nonservice-connected hearing loss in one ear when rating disability for veterans with at least 10 percent compensable service-connected hearing loss in the other ear. (148 Cong. Rec. S 9556, September 26, 2002.) The revised language became section 103 of the Act, striking “total deafness” in its first occurrence and replacing it with “deafness compensable to a degree of 10 percent or more” for the service-connected ear and striking “total deafness” in the second occurrence and replacing it with “deafness” for the nonservice-connected ear.

Currently, “deafness” is not defined in VA regulations except in reference to the severest degrees of hearing loss. (See 38 CFR 3.350(a)(5), concerning entitlement to special monthly compensation for deafness of both ears based on absence of air and bone conduction, and 38 CFR 4.84a, Table IV, concerning rating of blindness combined with varying degrees of hearing loss, including total deafness.) Dorland's Medical Dictionary, 28th edition, defines “deafness” as “lack of the sense of hearing, or profound hearing loss. Moderate loss of hearing is often called hearing loss.”

We understand that while Congress intended to eliminate the requirement of total deafness in both ears before applying the paired organ exception, a veteran must have a specified degree of hearing loss independently ratable in the service-connected ear, i.e., 10 percent or more, before nonservice-connected hearing disability in the other ear can be considered for compensation.

In determining what constitutes hearing loss or impairment for the nonservice-connected ear, we also look to the common meaning of deafness, which Webster's New World Dictionary, 3rd college edition, defines broadly as “totally or partially unable to hear.” VA regulations specify the point at which hearing impairment is considered a disability for VA purposes in 38 CFR 3.385 based on the auditory thresholds in five specified frequencies and speech recognition scores. Thus, as to paired organ hearing loss in the nonservice-connected ear, we are applying the provisions of § 3.385 to define the point at which hearing impairment is considered a disability. However, we are not requiring that the degree of hearing loss in the nonservice-connected ear be ratable at 10 percent or more because Congress did not impose this requirement.

Because the legislative history of Senate Bill 2237 refers to “hearing loss” in discussing the changes to the paired organ rule and because Congress retained the term “deafness” in the revised statute but did not specify the degree of hearing loss required in the nonservice-connected ear, we understand the intent of the statute is to include any degree of hearing loss disability, including a 0 percent, manifested in the nonservice-connected ear.

We are amending § 3.383(a)(3) of title 38, Code of Federal Regulations, which is VA's implementing regulation, accordingly. Also, we are adding a Cross References paragraph at the end of § 3.383 to alert veterans and adjudicators to the provisions of § 3.385, Disability due to impaired hearing, and § 4.85, Evaluation of hearing impairment, which have bearing on the application of the paired organ rule for hearing disability. Since the above amendments involve the restatement and interpretation of the Act, they are non-substantive and do not require publication for notice and comment.

Administrative Procedure Act

Changes made by this final rule merely reflect and interpret new statutory provisions. Accordingly, there is a basis for dispensing with prior notice and comment and delayed effective date provisions of 5 U.S.C. 552 and 553.

Executive Order 12866

This document has been reviewed by the Office of Management and Budget under Executive Order 12866, Regulatory Planning and Review, dates September 30, 1993.

Paperwork Reduction Act

This document contains no provisions constituting a collection of information under the Paperwork Reduction Act (44 U.S.C. 3501-3521).

Unfunded Mandates

The Unfunded Mandates Reform Act requires, at 2 U.S.C. 1532, that agencies prepare an assessment of anticipated costs and benefits before developing any rule that may result in an expenditure by State, local, or tribal governments, in the aggregate, or by the private sector, of $100 million or more in any given year. This rule will have no such effect on State, local, or tribal governments, or the private sector.

Regulatory Flexibility Act

The Secretary hereby certifies that this regulatory amendment will not have a significant economic impact on a substantial number of small entities as they are defined in the Regulatory Flexibility Act, 5 U.S.C. 601-612. The reason for this certification is that these amendments would not directly affect any small entities. Only VA beneficiaries and their survivors could be directly affected. Therefore, pursuant to 5 U.S.C. 605(b), these amendments are exempt from the initial and final regulatory flexibility analysis requirements of sections 603 and 604.

Catalog of Federal Domestic Assistance

There is no Catalog of Federal Domestic Assistance program number for this benefit.

List of Subjects in 38 CFR Part 3

• Administrative practice and procedure
• Claims
• Disability benefits
• Health care
• Pensions
• Veterans

For the reasons set forth in the preamble, 38 CFR part 3 is amended as follows:

PART 3—ADJUDICATION

Subpart A—Pension, Compensation, and Dependency and Indemnity Compensation

1. The authority citation for part 3, subpart A continues to read as follows:

Authority: 38 U.S.C. 501(a), unless otherwise noted.

2. Section 3.383 is amended by:

A. Revising paragraph (a)(3).

B. Revising the authority citation at the end of the section.

C. Adding a Cross References paragraph immediately after the authority citation at the end of the section.

The revisions and addition read as follows: