16-59 341
16-59 341
| Board of Vet. App. | Jun 15, 2017Background
- Veteran served on active duty 1950–1953 and has service-connected bilateral sensorineural hearing loss, currently rated 50%.
- Claim: entitlement to an increased rating in excess of 50% for bilateral hearing loss; appeal to Board of Veterans' Appeals from Phoenix RO decisions.
- Relevant evidence: multiple VA audiograms (Mar 2011, Dec 2014, Jun 2016) and a private August 2016 audiology report; results vary but at worst produce Table VI/VIa Roman level VIII for each ear.
- Rating methodology: VA uses puretone averages and Maryland CNC speech discrimination per 38 C.F.R. § 4.85 and Tables VI/VIa and VII to convert to percentage ratings.
- Private August 2016 test used W‑22 word list and was marked unreliable; Board found it insufficient for rating purposes.
- Board found the medical evidence does not show disability worse than level VIII in each ear and denied increase above 50%; extraschedular referral was not warranted.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Veteran is entitled to >50% for bilateral hearing loss | Veteran argues greater difficulty hearing/understanding speech, especially in noisy environments, and private testing shows worse thresholds | VA relies on objective VA audiograms with higher-quality Maryland CNC scores and regulatory tables showing maximum 50% | Denied — evidence shows at worst level VIII in each ear; schedular criteria control and do not support >50% |
| Whether private August 2016 audiogram should control rating | Veteran relies on private results showing worse puretone averages | VA/Board note poor test reliability and use of W‑22 (not Maryland CNC); not competent for rating | Private test not sufficient for rating purposes; not given controlling weight |
| Whether extraschedular (higher) rating required | Veteran contends daily-life hearing deficits are more severe than Booth testing indicates | Board: functional limitations (speech understanding, noisy environments) are contemplated by schedular criteria; no evidence of related factors (e.g., marked employment interference) | Denied — rating schedule adequately contemplates symptomatology; no referral warranted |
| Whether VA satisfied duties to notify and assist | Veteran did not argue inadequacy of exams | VA provided notice on fully developed claim, attempted records retrieval, and adequate VA examinations | VA satisfied notice and duty to assist; examinations adequate |
Key Cases Cited
- Allday v. Brown, 7 Vet.App. 517 (Vet. App.) (Board must provide reasons or bases)
- Gonzales v. West, 218 F.3d 1378 (Fed. Cir.) (Board not required to discuss every piece of evidence)
- Dela Cruz v. Principi, 15 Vet.App. 143 (Vet. App.) (same)
- Timberlake v. Gober, 14 Vet.App. 122 (Vet. App.) (Board must address reasons for rejecting favorable evidence)
- Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir.) (limits lay competency to provide medical evidence)
- Hart v. Mansfield, 21 Vet.App. 505 (Vet. App.) (staged ratings appropriate when disability changes over time)
- Thun v. Peake, 22 Vet.App. 111 (Vet. App.) (extraschedular referral framework)
- Gilbert v. Derwinski, 1 Vet.App. 49 (Vet. App.) (benefit-of-the-doubt standard)
- Johnson v. McDonald, 762 F.3d 1362 (Fed. Cir.) (consideration of combined effects of service-connected disabilities)