Denial of increased rating for hearing loss relied on inadequate examination

Denial of increased rating for hearing loss relied on inadequate examination

The Veteran served honorably in the United States Marine Corps from June 1970 to June 1974.  He was granted service connection for bilateral hearing loss with a noncompensable rating from the date of his discharge.  In July 2012, he filed an increased rating claim with VA, stating that he was having difficulty hearing even with the use of hearing aids.  He also suffered from occasional bleeding and cerumen impactions or occlusions.

Board denied an increased rating for bilateral hearing loss
In November 2016, the Board of Veterans’ Appeals denied an increased rating for bilateral hearing loss, and also denied referral for extraschedular consideration.  The Board concluded that the Veteran’s difficulty hearing conversations at work or home, difficulty hearing emergency vehicles while driving, and use of hearing aids were all considered and compensated by his 0% rating.  It therefore denied him entitlement to an increased rating or referral to the Director of Compensation for extraschedular rating consideration.
CCK appeals to Court
CCK successfully appealed to the Court the denial of an increased rating for the Veteran’s service-connected bilateral hearing loss.  In its decision, the Board relied on VA examinations to determine the Veteran’s hearing loss symptoms, and concluded that they were contemplated by the rating criteria.
CAVC agrees with CCK’s arguments
CCK argued, and the Court agreed, that the VA examination on which the Board relied was insufficient because it did not provide enough information to the Board regarding the effect of the Veteran’s hearing loss on his daily life, including work.  The examiners both checked “yes” when asked if the Veteran’s hearing loss caused such an impact, but neither examiner explained why.  The Court agreed that the VA examinations were inadequate because it was not sufficient to just “note” a condition without further explanation.  On remand, the Board must completed further development, and readjudicate the Veteran’s claim.

Category: Court Wins