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17-43 185
17-43 185
| Board of Vet. App. | Aug 13, 2021
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Background

  • Veteran served on active duty from April 1977 to December 1979 and was granted service connection for bilateral hearing loss with an initial noncompensable rating effective January 14, 2016.
  • Procedural history: RO grant (Sept 2016) → NOD (Sept 2016) → SOC (June 2017) → Board appeal (Aug 2017) → Board denial (Jan 2018) → CAVC vacatur and JMR remand (Sept 2018) → further Board remands (Mar 2019, May & June 2021) for full audiology record.
  • Relevant objective testing: authorized VA audiograms in May 2016 and June 2021 produced pure tone averages and Maryland CNC speech scores yielding Roman numeral II (right) and I–II (left) designations; combined via Table VII produced noncompensable evaluations.
  • A private January/early‑2016 audiogram exists but its word‑recognition test does not clearly use the Maryland CNC list required by regulation, so it was not relied upon for rating.
  • Board found no exceptional pattern under 38 C.F.R. § 4.86 and held that the schedular, mechanical application of Tables VI/VII/VIa yields noncompensable ratings for the appeal period.
  • Board considered and rejected lay statements of increased functional loss as outweighed by objective testing; benefit‑of‑the‑doubt doctrine not applied; TDIU not raised by claimant and therefore not adjudicated.

Issues

Issue Veteran's Argument VA/Board's Argument Held
Whether the Veteran is entitled to an initial compensable rating for service‑connected bilateral hearing loss Veteran contends hearing loss is worse and warrants a compensable rating Objective VA audiometry (pure tone averages and Maryland CNC scores) correspond to Level II/II or II/I and, under the mechanical schedule, produce noncompensable ratings Denied — schedular application of Tables VI/VII yields noncompensable rating for the appeal period
Whether the Board must adjudicate TDIU sua sponte Veteran asserts hearing loss impairs employability TDIU was not raised by Veteran or counsel and not reasonably raised by the record Not adjudicated — Board not required to address issues not raised in the record

Key Cases Cited

  • Lendenmann v. Principi, 3 Vet. App. 345 (1992) (hearing loss ratings are a mechanical application of the rating criteria)
  • Martinak v. Nicholson, 21 Vet. App. 447 (2007) (audiometric thresholds plus speech discrimination determine hearing impairment)
  • Fenderson v. West, 12 Vet. App. 119 (1999) (staging ratings for separate periods may be warranted)
  • Hart v. Mansfield, 21 Vet. App. 505 (2008) (procedures for assigning separate ratings over time)
  • Gilbert v. Derwinski, 1 Vet. App. 49 (1990) (benefit‑of‑the‑doubt standard)
  • Rice v. Shinseki, 22 Vet. App. 447 (2009) (TDIU is an element of increased rating claims)
  • Doucette v. Shulkin, 28 Vet. App. 366 (2017) (Board need not adjudicate issues not raised by claimant or reasonably raised by the record)
Read the full case

Case Details

Case Name: 17-43 185
Court Name: Board of Veterans' Appeals
Date Published: Aug 13, 2021
Docket Number: 17-43 185
Court Abbreviation: Board of Vet. App.