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Court Wins

Board errs in denial that relied on VA examinations

Bradley Hennings

November 17, 2017

Updated: November 20, 2023



The Veteran served on active duty in the Air Force from April 1968 to April 1972, including service in Vietnam.  He filed a claim for service connection for hearing loss based on in-service noise exposure in June 2007.  In July 2008, the regional office denied this claim on the grounds that the Veteran had normal hearing at the time of his separation from service.  The Veteran appealed this denial to the Board of Veterans’ Appeals.

The Board remanded the issue in March 2012, and remanded the issue again in September 2014. The September 2014 remand instructed the regional office to obtain an examination that discussed whether the Veteran’s hearing loss was due to noise exposure with delayed onset.  The regional office obtained the exam in August 2015.  The exam found that the Veteran’s hearing loss was less likely than not related to service.

Board denied service connection for bilateral hearing loss based on VA examinations

In April 2016, the Board issued another decision continuing to deny service connection for bilateral hearing loss.  The Board relied on two VA examinations in its denial.  The Board noted that the examiner reviewed the evidence of record and determined that continuity of symptomatology was not established, and that the Veteran was not competent to opine that his current hearing loss was due to noise exposure during service.

CCK appeals to the Court

CCK successfully appealed the Board’s denial of service connection for bilateral hearing loss to the CAVC.  In its decision, the Board relied on the August 2015 VA examination, as well as an April 2008 VA examination.  The Board concluded that the Veteran’s hearing loss was less likely than not related to his service.

CAVC agrees with CCK’s arguments

CCK argued, and the Court agreed, that the Board erred by relying on the VA examinations to deny the Veteran’s claims.  Both VA examinations rejected the possibility of delayed onset hearing loss because the Veteran’s hearing was normal at his separation from service.  However, the law states that a Veteran may establish service connection for a hearing disability that manifests after service, and the Board may not deny service connection based solely on normal audiometric results upon separation.  The Court agreed that the Board erred when it relied on VA examinations that based their conclusions on normal hearing at separation.  The Court set aside the Board’s decision and remanded the issue back to the Board for readjudication consistent with the Court’s decision.

About the Author

Bio photo of Bradley Hennings

Bradley Hennings joined Chisholm Chisholm & Kilpatrick as an attorney in January 2018 and currently serves as a Partner in the firm. His practice focuses on the U.S. Department of Veterans Affairs (VA) and the U.S. Court of Appeals for Veterans Claims.

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