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