[Federal Register Volume 69, Number 152 (Monday, August 9, 2004)]
[Rules and Regulations]
[Pages 48148-48150]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-18105]



38 CFR Part 3

RIN 2900-AL59

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

[[Page 48149]]

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 Sec.  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 Sec.  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 Sec.  3.383 to 
alert veterans and adjudicators to the provisions of Sec.  3.385, 
Disability due to impaired hearing, and Sec.  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.

    Approved: June 2, 2004.
Anthony J. Principi,
Secretary of Veterans Affairs.

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


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

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

    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:

[[Page 48150]]

Sec.  3.383  Special consideration for paired organs and extremities.

    (a) * * *
    (3) Hearing impairment in one ear compensable to a degree of 10 
percent or more as a result of service-connected disability and hearing 
impairment as a result of nonservice-connected disability that meets 
the provisions of Sec.  3.385 in the other ear.
* * * * *
(Authority 38 U.S.C. 501(a), 1160(a)(3))

    Cross-References: Sec.  3.385 Disability due to impaired hearing; 
Sec.  4.85 Evaluation of hearing impairment.

[FR Doc. 04-18105 Filed 8-6-04; 8:45 am]