11-27 532
11-27 532
| Board of Vet. App. | Oct 31, 2017Background
- Veteran served active duty March 1965–September 1974 and filed for service connection for bilateral hearing loss (filed Sept. 28, 2010).
- RO granted service connection in Jan. 2011 with a 0% rating under Diagnostic Code 6100, effective Sept. 28, 2010; appeal to the Board followed.
- Relevant audiometric testing: private Aug. 2010 and VA Dec. 2010 and Feb. 2017 exams showing pure tone averages and speech discrimination (~80–84%); audiometric tables yield noncompensable designations (0%).
- Veteran reported functional complaints (difficulty on telephone, misunderstanding conversations) consistent with reduced speech recognition but not beyond the 0% criteria.
- Board remanded in Aug. 2016 for development; after return, Board reviewed full record and evidence and denied a rating in excess of 0% for the entire appeal period.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Entitlement to >0% rating for bilateral hearing loss | Veteran contends hearing loss causes functional difficulty (telephone, conversations) meriting higher rating | VA/Board argues audiometric results and speech discrimination map to 0% under the rating schedule | Denied — preponderance of evidence supports 0% rating for entire appeal period |
| Whether benefit-of-the-doubt applies | Veteran sought higher rating; representative requested benefit of doubt | Board found record favored VA; no approximate balance to invoke doubt rule | Not applied — preponderance against increased rating |
| Need for further development/remand | Representative asked remand if evidence inadequate | Board concluded evidence was adequate after Aug. 2016 development and review | No additional development required |
| Whether TDIU was raised | Whether hearing loss alone warrants TDIU | Veteran did not contend hearing loss caused unemployability | Not raised/considered — TDIU not pursued |
Key Cases Cited
- Rice v. Shinseki, 22 Vet. App. 447 (2009) (claims must be read for reasonably raised issues such as TDIU)
- Schafrath v. Derwinski, 1 Vet. App. 589 (1991) (consider entire recorded history for rating evaluations)
- Francisco v. Brown, 7 Vet. App. 55 (1994) (present level of disability is primary in increased-rating appeals)
- Fenderson v. West, 12 Vet. App. 119 (1999) (initial ratings rely on overall recorded history)
- Hart v. Mansfield, 21 Vet. App. 505 (2007) (staged ratings appropriate when distinct time periods show differing severity)
- Lendenman v. Principi, 3 Vet. App. 345 (1992) (hearing loss ratings are a mechanical application of audiometric results)
- Gilbert v. Derwinski, 1 Vet. App. 49 (1990) (benefit-of-the-doubt standard requires approximate balance of evidence)
- Alemany v. Brown, 9 Vet. App. 518 (1996) (preponderance of evidence required to deny claim)
- Doucette v. Shulkin, 28 Vet. App. 366 (2017) (Board not required to address issues not raised or reasonably raised)
- Martinak v. Nicholson, 21 Vet. App. 447 (2007) (VA need not adjudicate issues not raised by claimant)