Denial of service connection for hearing loss disability failed to consider delayed onset

Denial of service connection for hearing loss disability failed to consider delayed onset

Summary

The Veteran served in the U.S. Air Force from October of 1959 through October of 1963 as a small arms weapons specialist and instructor.  The Veteran’s hearing was normal at the time of his separation examination. In September of 2011, he filed a claim for entitlement to service connection for a hearing loss disability.  The Veteran subsequently underwent a VA examination.  The examiner opined that it was less likely than not that there was a reasonable nexus between the Veteran’s hearing loss and military noise exposure because his hearing was normal for each ear at the time of his separation from the military.  The examiner noted, however, that military noise exposure was conceded.  The RO denied the Veteran’s claims, and he timely appealed.

CCK Appeals Hearing Loss Disability Denial to the Court

CCK successfully appealed to the Court the denial of service connection for the Veteran’s hearing loss disability.  In its decision, the Board relied on the VA examination to determine that there was no nexus between the Veteran’s current hearing loss disability and his period of active duty service.  The Board determined the examination was adequate to adjudicate the Veteran’s service connection claim because the opinion was “predicated on an interview with the Veteran; a review of the record, to include h[is] available service treatment records; and a physical examination.”  The Board then stated that the “opinion proffered considered all of the pertinent evidence of record, to include the statements of the Veteran, and provided a complete rationale, relying on and citing to the records reviewed. Moreover, the examiner offered clear conclusions with supporting data as well as reasoned medical explanations connecting the two.”

CAVC Agrees with CCK’s Arguments

CCK argued, and the Court agreed, that the medical opinion was inadequate because the examiner’s rationale was inconsistent with the controlling case law.  The sole basis for the examiner’s opinion was that the Veteran’s hearing levels were within normal limits at the time of military separation.  However, 38 C.F.R. section 3.385, which sets forth the criteria for compensable hearing loss, does not preclude an award of service connection for a hearing disability where hearing was normal at military separation where there is evidence that the current disability is causally related to service.  And here, the Board conceded the Veteran experienced military noise exposure as a small arms instructor.  Thus, the Court agreed that the Board erred when it determined the opinion was adequate for adjudication purposes and vacated the Board’s decision denying service connection for bilateral hearing loss.

Category: Court Wins