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Board erred when it denied a compensable rating for bilateral hearing loss

Board erred when it denied a compensable rating for bilateral hearing loss

Summary of the Case

The Veteran served in the United States Navy for three years, from 1967 to 1970.  He served in Vietnam, earning several commendations.  While aboard a Naval ship in Vietnam, he suffered noise exposure from jet engines.  VA eventually awarded the Veteran service connection for bilateral hearing loss, but did not award a compensable rating.

The Veteran requested an increased rating based on his inability to hear when he worked and in his daily life.  Based on his reports of worsening symptoms, VA awarded a new examination in 2013.  Although objective testing confirmed that his hearing had indeed worsened, VA continued to deny a compensable rating.  The Veteran reported that his hearing had worsened again the following year, but VA denied another VA examination.  The Board of Veterans Appeals reviewed the Veteran’s case in 2016.

VA denies the Veteran a compensable rating

The Board continued to deny the Veteran a compensable rating.  It found the Veteran’s statements of worsening did not warrant a more recent VA examination.  The Board also denied referral for an extraschedular rating.  It reasoned that the Veteran’s zero percent rating adequately compensated him for his symptoms and effects.  With CCK’s help, the Veteran appealed the Board decision to the Court of Appeals for Veteran’s claims.

CCK appeals to Court and the CAVC agrees with CCK’s arguments

CCK successfully appealed the Board’s decision to the Court of Appeals for Veterans Claims.  The firm argued, and the Court agreed, that the Board erred when it denied a compensable rating for bilateral hearing loss.  The Court agreed that the Board incorrectly denied a new VA examination based on the Veteran’s competent reports of worsening symptoms. It pointed out that the previous VA examination confirmed the Veteran’s reports of worsening.  Therefore, a new VA examination may have demonstrated further worsening over the three years between the last examination and the Board’s decision.

The Court also agreed that the VA examinations did not adequately describe the functional effects of the Veteran’s hearing loss.  Instead, when asked about the Veteran’s effects, the examiner just wrote “no.”  The Court found other evidence of record contradicted this report, which suggests the examiner did not fulfill his duty to elicit information about the functional effects of the Veteran’s hearing loss disability.  The Court vacated the Board’s decision and remanded the Veteran’s claim for further adjudication.

 

Category: Court Wins

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