Is Hearing Loss a VA Disability even if its not compensable?

May 21st, 2018
Contributor: Chris Attig

What is the Deep Issue in the Case?

{Several issues were raised in the briefing of this case - this review focuses in on one: continuity of symptomatology for hearing loss}

A veteran is entitled to service connection for loss of hearing if his condition is chronic and the evidence of record establishes hearing loss “noted” in service, and continuity of symptomatology since service. 38 C.F.R. §§ 3.303(b).

The appellant's separation examination noted "partial hearing loss", although all parties agreed that testing at separation did not demonstrate loss of hearing at a level for which the VA affords compensation under 38 C.F.R. §3.385.

Did the BVA err when it found that no compensable hearing loss at separation equated to a finding that the veteran's hearing was normal at separation?

What did the CAVC Decide?

The CAVC held the BVA provided an inadequate statement of reasons or bases for relying on medical evidence that found the appellant's hearing normal at separation.

The evidence noting that "partial hearing loss" at separation could not be overlooked.

Takeaway Points for VSOs and Veterans Disability Lawyers:

1) Confusing hearing loss as a medical condition and hearing loss on the VA ratings table.

The veteran's separation physical noted "partial hearing loss".

He had an audiometric test at separation showing hearing loss that would not be compensable on the VA rating table.

This is the crux of the argument: the Secretary wants to see was evidence of hearing loss that was at a compensable level in service before awarding service connection for hearing loss.

The Appellant argues that hearing loss in service need not meet the level of hearing loss for which the VA will grant compensation.

This question appears to have been resolved by the Hensley case a quarter century ago:

"[w]hen audiometric test results at a veteran's separation from service do not meet the regulatory requirements for establishing a "disability" at that time, he or she may nevertheless establish service connection for a current hearing disability by submitting evidence that the current disability is causally related to service." Hensley v. Brown, 5 Vet. App. 155, 160 (1993).
I read the briefs several times, and admit to struggling to understanding the Secretary's arguments, particularly in light of Hensley. Please take a read of the Secretary's brief, and if you can help me see the argument they are making, I would greatly appreciate your insight. Here's a link to the Secretary's response brief.
Near as I can tell, the Secretary's argument appear to be making either one of two points.
First, the Secretary directly states he wants to make a distinction between the Hensley holding in cases involving direct service connection and those involving presumptive service connection. Presumptive service connection was not at issue in this case, so this confuses me a little.
Second, it is possible that the Secretary is pushing the courts to limit the definition of medical conditions to their rating criteria in Table 4.
Time will tell if this is a shift in the Secretary's legal position, or a mere anomaly in a single case.
Until then, be mindful: the path to proof of service connection is no different for the veteran who has evidence of a loss of hearing in service than for the veteran who has evidence of compensable hearing loss in service:
If you can show a nexus between the in service hearing loss and a current hearing loss disability, or show continuity of symptomatology for hearing loss from the notation in service to the diagnosis of the post-service disability, the veteran should win his or her claim for service connection of hearing loss.

Case Details

Link to the CAVC Single Judge Decision on the CAVC Website.

Link to the BVA Decision on CAVC Website.

CAVC Judge: Judge William S. Greenberg (link to bio on CAVC website)

OGC Attorney: Julia A. Turner

Veteran Representation at CAVC: Caitlin Milo, NVLSP

Board of Veterans Appeals Veterans Law Judge: M.E. Larkin

Regional Office: Los Angeles, California, VA Regional Office

Vets’ Rep at BVA: American Legion

Date of BVA Decision: October 7, 2016

Date of Decision: April 30, 2018

Categories: Veterans Law Updates
Tags: 38 C.F.R. 3.303(b), 38 C.F.R. 3.385, American Legion, Caitlin S. Milo, hearing loss, Hensley v. Brown 5 Vet. App. 155 (1993), Judge William S. Greenberg, Julia A. Turner, Los Angeles CA VARO, M.E. Larkin, NVLSP