Alan R. Swain v. Robert A. McDonald
27 Vet. App. 219
Vet. App.2015Background
- Alan R. Swain, service‑connected for bilateral hearing loss (noncompensable since 1956), filed for increased rating in October 2007.
- February 2008 VA exam using the Maryland CNC speech test did not show a compensable loss; RO denied the increase in March 2008; Swain appealed and submitted private audiograms from Nov. 10, 2009, and Dec. 9, 2010.
- Private exams did not state which speech test was used; results were graphical. A 2013 VA exam using the Maryland CNC found results consistent with the 2009 and 2010 private tests and warranted a 10% rating.
- RO granted the 10% rating effective June 12, 2013 (date of Maryland CNC test); Swain appealed the effective date and argued the effective date should be Nov. 10, 2009, based on the VA examiner’s opinion that the earlier tests were consistent with the 2013 CNC results.
- The Board tied the effective date to the date of the favorable Maryland CNC test; the Court reversed, finding the effective date governed by 38 U.S.C. § 5110 and 38 C.F.R. § 3.400 and remanded to assign a 10% rating effective Nov. 10, 2009.
Issues
| Issue | Swain's Argument | Secretary's Argument | Held |
|---|---|---|---|
| Whether 38 C.F.R. § 4.85(a)’s Maryland CNC requirement means an increased‑rating effective date cannot predate a Maryland CNC test | § 4.85(a) governs only how to rate hearing loss; effective date should be the earliest ascertainable date of increased disability (here Nov. 10, 2009) based on all evidence including retrospective consistency opinion | Effective date for an increased rating must be the date a compliant Maryland CNC test showing the higher rating was performed; retrospective opinions cannot substitute for the required test | Rejected Secretary’s view; § 4.85(a) does not control effective dates; effective date follows § 5110/§ 3.400 and can be as of Nov. 10, 2009 when increase was ascertainable |
Key Cases Cited
- Frankel v. Derwinski, 1 Vet.App. 23 (recognition that panel decision warranted)
- Lendenmann v. Principi, 3 Vet.App. 345 (discussing mechanical application of audiometric rating schedule)
- Chotta v. Peake, 22 Vet.App. 80 (retrospective examinations may permit retroactive diagnosis in some contexts)
- DeLisio v. Shinseki, 25 Vet.App. 45 (effective date based on when increase in disability first manifested)
- Gaston v. Shinseki, 605 F.3d 979 (statutory interpretation of § 5110 regarding earliest ascertainable date)
- Kilpatrick v. Principi, 16 Vet.App. 1 (regulation invalid to extent it conflicts with statute)
- Hart v. Mansfield, 21 Vet.App. 505 (review of all evidence for effective‑date determinations)