Citation Nr: 0002549	
Decision Date: 02/02/00    Archive Date: 02/10/00

DOCKET NO.  97-13 267	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Lincoln, 
Nebraska


THE ISSUE

Entitlement to an increased evaluation for Meniere's disease, 
with bilateral hearing loss, currently evaluated as 30 
percent disabling.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

The veteran


ATTORNEY FOR THE BOARD

A. C. Mackenzie, Associate Counsel


INTRODUCTION


The veteran served on active duty from September 1964 to 
October 1968.

This matter comes before the Board of Veterans' Appeals 
(Board) on appeal from an August 1995 rating decision issued 
by the Department of Veterans Affairs (VA) Regional Office 
(RO) in Lincoln, Nebraska.  The Board remanded this case back 
to the RO for further development in May 1998.  The requested 
development has been completed, and the case has been 
returned to the Board.


REMAND

The Board observes that certain regulatory changes were 
recently made to the criteria for evaluating audiological and 
ear disabilities, including hearing loss and Meniere's 
disease, effective as of June 10, 1999.  See 38 C.F.R. 
§§ 4.85-4.87a (1999); see also 64 Fed. Reg. 25202-25210 
(1999).  

The Board observes that the summary information accompanying 
the regulatory changes to the criteria for evaluating 
audiological disabilities specifically indicates that, except 
for certain "unusual patterns of hearing impairment," the 
regulatory changes do not constitute liberalizing provisions.  
The "unusual patterns of hearing impairment" include cases 
where the pure tone thresholds at each of the four specified 
frequencies (1000, 2000, 3000, and 4000 Hertz) is 55 decibels 
or more, or where the pure tone thresholds are 30 decibels or 
less at 1000 Hertz and 70 decibels or more at 2000 Hertz.  38 
C.F.R. § 4.86 (1999).  However, 38 C.F.R. § 4.87a, Diagnostic 
Code 6205 (1999), which pertains to Meniere's disease, 
represents a more substantial and potentially liberalizing 
revision, with entirely new diagnostic criteria.

Where a law or regulation changes while a case is pending, 
the version most favorable to the claimant applies, absent 
congressional intent to the contrary.  Karnas v. Derwinski, 1 
Vet. App. 308, 312-13 (1991).  To date, the RO has not 
addressed the question of whether an increased evaluation for 
the veteran's service-connected Meniere's disease, with 
bilateral hearing loss, is warranted under the newly revised 
rating criteria.  Before the Board addresses a question which 
was not addressed by the RO, it must determine whether the 
veteran has been given adequate notice of the need to submit 
evidence or argument on that question and an opportunity to 
address the question at a hearing, and, if not, whether the 
veteran would be prejudiced thereby.  Bernard v. Brown, 4 
Vet. App. 384, 394 (1993).  In light of this, the Board has 
concluded that further action, to include the RO's 
adjudication of the veteran's claim of entitlement to an 
increased evaluation under the revised rating criteria, is 
needed, and, in the event that the claim continues to be 
denied, notice to the veteran of the most recent rating 
criteria is also required so that he may respond with 
appropriate arguments in support of his entitlement to the 
claimed benefit.  

Therefore, to ensure full compliance with due process 
requirements by applying recent regulatory changes, this case 
is REMANDED to the RO for the following action:

After undertaking any additional 
development deemed necessary, and giving 
the veteran full opportunity to 
supplement the record, the RO should rate 
his Meniere's disease, with bilateral 
hearing loss, based on all of the 
evidence of record and in accordance with 
the regulatory changes in 38 C.F.R. 
§§ 4.85-4.87a (64 Fed. Reg. 25202-25210 
(1999)), and Karnas v. Derwinski, 1 Vet. 
App. 308, 312-13 (1991).  If the benefit 
sought on appeal is not granted in full, 
the veteran and his representative should 
be furnished with a Supplemental 
Statement of the Case and be afforded the 
applicable opportunity to respond before 
the record is returned to the Board for 
further review.

The purpose of this REMAND is to ensure full compliance with 
due process requirements by applying recent regulatory 
changes.  The Board intimates no opinion, either factual or 
legal, as to the ultimate disposition of the veteran's 
appeal.  The veteran has the right to submit additional 
evidence and argument on this matter.  See Kutscherousky v. 
West, 12 Vet. App. 369 (1999).  However, no action is 
required of the veteran until he is so notified by the RO.



		
	WARREN W. RICE, JR.
	Member, Board of Veterans' Appeals

Under 38 U.S.C.A. § 7252 (West 1991 & Supp. 1999), only a 
decision of the Board of Veterans' Appeals is appealable to 
the United States Court of Appeals for Veterans Claims.  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) (1999).