09-46 322
09-46 322
| Board of Vet. App. | Oct 31, 2017Background
- Veteran served active duty 1974–1983; service-connected bilateral sensorineural hearing loss initially rated 0% effective December 5, 2007.
- VA audiometric exams: May 2008 and Dec 2011 showed Level II acuity (noncompensable); Jan 2015 showed exceptional patterns producing a 30% rating; June 15, 2015 exam showed further decline producing a 50% rating.
- Veteran testified at an April 2013 videoconference hearing; the claim was remanded multiple times for development before the RO issued a 30% rating effective January 16, 2015 (March 2015 decision).
- Board reviewed all exams and applicable rating criteria (38 C.F.R. §§ 4.85–4.86) and considered staged ratings where appropriate.
- Board found no prejudicial VCAA notice or assistance defects and concluded exams were adequate for rating purposes.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Entitlement to an initial compensable rating for bilateral hearing loss prior to Jan 16, 2015 | Hearing loss was sufficiently severe earlier to warrant a compensable rating | Pre‑Jan 16, 2015 audiometry (May 2008, Dec 2011) shows Level II in each ear → 0% | Denied — no compensable rating warranted prior to Jan 16, 2015 |
| Entitlement to rating >30% for bilateral hearing loss from Jan 16, 2015 (and increased rating thereafter) | Jan 2015 and June 2015 exams show greater impairment deserving >30% and earlier effective date | Jan 2015 audiometry supports 30%; June 15, 2015 audiometry supports increase to 50% effective that date | Denied for period Jan 16–Jun 14, 2015 (30%); Granted 50% effective Jun 15, 2015 |
Key Cases Cited
- Goodwin v. Peake, 22 Vet. App. 128 (2008) (downstream rating/effective‑date notice not required once underlying claim is substantiated)
- Martinak v. Nicholson, 21 Vet. App. 447 (2007) (adequacy of VA disability exam and required functional commentary)
- Fenderson v. West, 12 Vet. App. 119 (1999) (staged ratings doctrine)
- Rice v. Shinseki, 22 Vet. App. 447 (2009) (TDIU issues raised by record may be part of increased‑rating claim)
- Doucette v. Shulkin, 28 Vet. App. 366 (2017) (Board need only address issues raised by claimant or reasonably raised by record)