Hearing loss denial contained legal error by BVA

Hearing loss denial contained legal error by BVA

Summary

The Veteran served in the United States Navy from 1965 to 1969.  In March of 2012, he applied for VA disability benefits for bilateral hearing loss.  During service, he was exposed to a significant amount of noise from gunfire which caused damage to his ears.  In September of 2013, the VA granted the Veteran service connection at 0%.  In its decision, VA stated that his hearing loss was not severe enough to warrant compensation per VA regulation.  He filed an appeal requesting a rating above 0% for his hearing loss in January of 2014.  In July of 2015, the Veteran submitted a statement requesting that he receive a new examination.

Board denies increased rating for hearing loss

In December of 2015, the Board of Veterans’ Appeals denied an increased rating.  The Board found that the original VA audiology exam from June 2013 was sufficient evidence to assign the Veteran’s noncompensable rating, despite his request for an updated examination.  The Board acknowledged that the Veteran submitted this request, but he was not granted a new exam as he had not expressly stated that his hearing loss had worsened.

CCK appeals to the Court

CCK successfully appealed to the Court the Board decision that denied the Veteran an increased rating for bilateral hearing loss.  The Board found the Veteran was not entitled to a new exam to determine the severity of his disability because he had not asserted that his hearing had worsened since his June 2013 examination.  However, the Veteran’s January 2014 appeal stated that his hearing loss was, in fact, worse.  The Board did not acknowledge this statement in its decision, maintaining its assertion that the Veteran did not state his hearing had worsened.

CAVC agrees with CCK’s arguments

CCK argued, and the Court agreed, that the Board erred in its decision to deny an increased rating.  In his written statement from 2015, he referred to appropriate VA regulation that warranted a new examination, although he did not expressly state his condition had worsened.  In his 2014 appeal the Veteran did state that his hearing had become worse.  Thus, the Court vacated the Board’s decision and remanded the case.  Accordingly, the Board is required to provide a new examination to determine the current severity of the Veteran’s hearing loss, or provide a complete and adequate statement of its reasoning as to why one is not warranted.

Category: Court Wins