The A to Z Guide to VA Disability Benefits
JimStrickland912
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Welcome to the latest addition to The A to Z Guide To VA Disability Benefits. This page went live November 4 2009.
The Veterans Law Review will post recent decisions from various sources that reflect happenings that will have an effect on the law as it works for veterans.
Unless otherwise attributed, the opinions are my own, developed in close coordination with attorneys who are accredited to practice veterans law.
You are welcome to comment and agree or disagree or to elaborate on a decision. Please email me at <jim912@gmail.com> and I'll insert your remarks in an appropriate manner.
If you're an attorney and you'd like to review a recent case, please follow a format similar to what you see here and email that to me. I'll work it right into the schedule of publication.
Thanks for your interest.
Jim
11/04/2009
November 5th 2009
The Case For Review:
Case: Cushman v. Shinseki, CAVC No. 08-7129; Fed. Cir. No. 2008-7129
BVA Decision: August, 2005
CAVC Decision: February, 2008
Fed. Cir. Decision: August 12, 2009
Key Issue(s):
(1) Whether a veteran’s entitlement to benefits is a property interest protected by the Constitution.
(2) Whether the veteran received due process when his claim was
repeatedly denied with an altered medical document in the claims file.
Law: 38 U.S.C. § 1110; Fifth Amendment to the Constitution
What was decided:
(1) The Court decided that a veteran’s entitlement to benefits is a property interest protected by the Due Process Clause of the Fifth Amendment to the United States Constitution.
(2) The presentation of an altered medical document was prejudicial to the veteran and was a violation of the due process owed to the veteran.
What this means to veterans:
VA has a lot of processes and procedures that its employees are supposed to
follow in processing veterans’ benefits claims. As most claimants know, there are many occasions when VA does not follow its own procedures and, if caught, explains that there was no harm to the claimant from its actions. This decision makes the failure to follow procedures and other actions potentially harmful to a veteran’s claim potentially much more serious.
A violation of constitutional “due process” is much more significant than merely
shortcutting a VA regulation. Whether this decision causes any real change in how VA does business remains to be seen. Veterans who catch VA not following agency procedures, however, at least have a stronger argument to require VA to correct the process error and, if necessary, redo any decisions made after the error occurred. As before, it is still up to the claimant to follow his or her claim and watch for any procedure violations.
November 4th 2009
The Case For Review:
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
No. 08-1725
EDWARD E. MEEDEL, APPELLANT,
V.
ERIC K. SHINSEKI,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
The Review:
Case: Meedle v. Shinseki, CAVC No. 08-1725
Decided: November 4, 2009
Key Issue(s): How VA determines if a veteran has a hearing disability.
Law: 38 C.F.R. § 3.385
What was decided:
The Court decided that a veteran cannot average audiogram results across the specified decibel range in order for hearing loss to be classified as a disability. Mr. Meedle could not use the average of his audiogram results (26.25 decibels) to classify his hearing loss as a disability under the Secretary’s regulations
What this means to veterans:
(1) Veterans suffering hearing loss must (a) have auditory thresholds for at least three of the tested frequencies of 500, 1000, 2000, 3000, or 4000 hz of 26 decibels or greater or (b) have at least one auditory threshold of 40 decibels or greater or (c) a speech recognition score using the Maryland CNC test of less than 94 percent.
(2) Veterans seeking hearing exams from private examiners should make sure that the examiners are aware of the above requirements so that the proper attention is given to results which are close to the limits. Mr. Meedle had several results of “25” decibels, an increase in any one of which would have resulted in an award.
The Veterans Law Review will post recent decisions from various sources that reflect happenings that will have an effect on the law as it works for veterans.
Unless otherwise attributed, the opinions are my own, developed in close coordination with attorneys who are accredited to practice veterans law.
You are welcome to comment and agree or disagree or to elaborate on a decision. Please email me at <jim912@gmail.com> and I'll insert your remarks in an appropriate manner.
If you're an attorney and you'd like to review a recent case, please follow a format similar to what you see here and email that to me. I'll work it right into the schedule of publication.
Thanks for your interest.
Jim
11/04/2009
Case Reviews
December 9th 2009
The Case For Review:
Case: Tatum v. Shinseki, CAVC No. 07-2728
BVA Decision: May 23, 2007
CAVC Decision: September 28, 2009
Key Issue(s): (1) Whether a claimant has to exhibit all of the symptoms specified as rating criteria to be awarded a rating level.
(2) Whether VA can reduce a rating when the rated condition no longer exists if the associated symptoms continue.
Law: 38 U.S.C. § 7261(a); 38 C.F.R §§ 4.7, 4.21
What was decided:
(1) The Court decided that for the disability under consideration a claimant did
not have to exhibit all the listed symptoms. Section 4.7 required the higher disability rating because the overall disability was most nearly approximated by that rating.
(2) The Court decided that VA cannot reduce a rating based on symptoms that
remain even if the condition thought to cause the symptoms is no longer present.
Another Diagnostic Code (DC) should be determined.
What this means to veterans:
(1) In many cases, the rating tables are arranged so that higher ratings include the same symptoms as lower ratings, but include additional symptoms. For example, a condition may rate 10% for fatigue, but 30% for fatigue,headaches, and blurred vision.
All three symptoms are not needed for the higher rating. When a veteran suffers from only two of the three, VA is supposed to assign the higher rating if it better “approximates” the condition in the claimant.
(2) If VA determines that a veteran suffers a specific disease, but that disease later heals or is cured, but the original symptoms remain and VA attempts to reduce or eliminate the associated rating, a claimant should request that VA assign another, more appropriate, Diagnostic Code (DC). If the symptoms remain, it is not correct for VA to reduce the rating because the condition thought to produce the symptoms is no longer present.
The Case For Review:
Case: Tatum v. Shinseki, CAVC No. 07-2728
BVA Decision: May 23, 2007
CAVC Decision: September 28, 2009
Key Issue(s): (1) Whether a claimant has to exhibit all of the symptoms specified as rating criteria to be awarded a rating level.
(2) Whether VA can reduce a rating when the rated condition no longer exists if the associated symptoms continue.
Law: 38 U.S.C. § 7261(a); 38 C.F.R §§ 4.7, 4.21
What was decided:
(1) The Court decided that for the disability under consideration a claimant did
not have to exhibit all the listed symptoms. Section 4.7 required the higher disability rating because the overall disability was most nearly approximated by that rating.
(2) The Court decided that VA cannot reduce a rating based on symptoms that
remain even if the condition thought to cause the symptoms is no longer present.
Another Diagnostic Code (DC) should be determined.
What this means to veterans:
(1) In many cases, the rating tables are arranged so that higher ratings include the same symptoms as lower ratings, but include additional symptoms. For example, a condition may rate 10% for fatigue, but 30% for fatigue,headaches, and blurred vision.
All three symptoms are not needed for the higher rating. When a veteran suffers from only two of the three, VA is supposed to assign the higher rating if it better “approximates” the condition in the claimant.
(2) If VA determines that a veteran suffers a specific disease, but that disease later heals or is cured, but the original symptoms remain and VA attempts to reduce or eliminate the associated rating, a claimant should request that VA assign another, more appropriate, Diagnostic Code (DC). If the symptoms remain, it is not correct for VA to reduce the rating because the condition thought to produce the symptoms is no longer present.
November 16th 2009
The Case For Review:
Case: Rizzo v. Shinseki, CAVC No. 07-0123; Fed. Cir. No. 2009-7026
BVA Decision: October 13, 2006
CAVC Decision: August 26, 2008
Fed. Cir. Decision: September 8, 2009
Key Issue(s):
(1) Whether the VA has to produce some evidence of the qualifications and expertise of a VA physician who submits an opinion that the Board relies on in denying a claim.
(2) Whether the veteran received due process when his claim was repeatedly denied with an altered medical document in the claims file.
Law: 38 U.S.C. § 5103A; Federal Rules of Evidence
What was decided:
(1) The Court decided that unless a veteran challenges the expertise of a VA physician or other witness, VA is not required to present any evidence of the qualifications of that person.
(2) A VA official’s position in the government allows VA and the courts to assume that the official does his job correctly unless there is clear evidence otherwise.
What this means to veterans:
Veterans have little, if any, say in which physicians or other persons VA assigns to perform examinations and submit opinions on the veteran’s claim. This case makes very clear that to question or challenge the expertise of the VA person submitting evidence, a veteran must raise the a challenge at the regional office or Board level. Waiting until an appeal to the Veterans Court is too late and VA will be able to assume the individual is an expert and did everything correctly.
As a practical matter, a challenge to the education, knowledge, experience, or training of a VA “expert” should
(1) be in writing;
(2) submitted to the regional office or Board;
(3) clearly state that the veteran is challenging the expertise of the individual to provide evidence in the case;
and
(4) request “affirmative evidence” that establishes the individual’s competence and qualifications to provide the expert evidence submitted.
The veteran should also describe the reasons for questioning the individual’s expertise, such as, little or no experience with the veteran’s condition, an incomplete examination, errors in the examination report, specific statements made by the individual or other raising doubts about the individual’s expertise.
The Case For Review:
Case: Rizzo v. Shinseki, CAVC No. 07-0123; Fed. Cir. No. 2009-7026
BVA Decision: October 13, 2006
CAVC Decision: August 26, 2008
Fed. Cir. Decision: September 8, 2009
Key Issue(s):
(1) Whether the VA has to produce some evidence of the qualifications and expertise of a VA physician who submits an opinion that the Board relies on in denying a claim.
(2) Whether the veteran received due process when his claim was repeatedly denied with an altered medical document in the claims file.
Law: 38 U.S.C. § 5103A; Federal Rules of Evidence
What was decided:
(1) The Court decided that unless a veteran challenges the expertise of a VA physician or other witness, VA is not required to present any evidence of the qualifications of that person.
(2) A VA official’s position in the government allows VA and the courts to assume that the official does his job correctly unless there is clear evidence otherwise.
What this means to veterans:
Veterans have little, if any, say in which physicians or other persons VA assigns to perform examinations and submit opinions on the veteran’s claim. This case makes very clear that to question or challenge the expertise of the VA person submitting evidence, a veteran must raise the a challenge at the regional office or Board level. Waiting until an appeal to the Veterans Court is too late and VA will be able to assume the individual is an expert and did everything correctly.
As a practical matter, a challenge to the education, knowledge, experience, or training of a VA “expert” should
(1) be in writing;
(2) submitted to the regional office or Board;
(3) clearly state that the veteran is challenging the expertise of the individual to provide evidence in the case;
and
(4) request “affirmative evidence” that establishes the individual’s competence and qualifications to provide the expert evidence submitted.
The veteran should also describe the reasons for questioning the individual’s expertise, such as, little or no experience with the veteran’s condition, an incomplete examination, errors in the examination report, specific statements made by the individual or other raising doubts about the individual’s expertise.
November 16th 2009
The Case For Review:
Case: Jones v. Shinseki, CAVC No. 06-2036
BVA Decision: March 16, 2006
CAVC Decision: June 18, 2009
Key Issue(s): When is a claim that was appealed in a Notice of Disagreement (NOD), but for which VA never issued a Statement of the Case (SOC), decided?
Law: 38 U.S.C. §§ 7104, 7105
What was decided:
The Court decided that where a veteran files an NOD for a claim but VA fails to issue an SOC in response to the NOD, the claim is resolved in a later appellate adjudication of another claim, where both claims stem from the same underlying disorder and the claimed disabilities are identical or substantially similar.
What this means to veterans:
A Veteran has a right to an appeal of a claim denied by VA. If a veteran submits a proper NOD and VA does not follow through with a SOC and the rest of the appeal process, the claim remains “open” until and unless VA properly resolves the appeal. Claims which VA has “forgotten” keep their original effective date and so can have accumulated very large retroactive payments. Any veteran who believes that he or she has filed an NOD but has not received a VA acknowledgment of the NOD or a SOC after a reasonable time (several months at least) should review their records and submit a copy of the NOD to VA along with a request for an investigation into what happened to the original NOD. If VA cannot provide documentation of a final decision on that appeal or another claim stemming from the same condition and for the same disability, the veteran should request a decision on the appeal and an effective date of the date that the claim was originally filed.
The Case For Review:
Case: Jones v. Shinseki, CAVC No. 06-2036
BVA Decision: March 16, 2006
CAVC Decision: June 18, 2009
Key Issue(s): When is a claim that was appealed in a Notice of Disagreement (NOD), but for which VA never issued a Statement of the Case (SOC), decided?
Law: 38 U.S.C. §§ 7104, 7105
What was decided:
The Court decided that where a veteran files an NOD for a claim but VA fails to issue an SOC in response to the NOD, the claim is resolved in a later appellate adjudication of another claim, where both claims stem from the same underlying disorder and the claimed disabilities are identical or substantially similar.
What this means to veterans:
A Veteran has a right to an appeal of a claim denied by VA. If a veteran submits a proper NOD and VA does not follow through with a SOC and the rest of the appeal process, the claim remains “open” until and unless VA properly resolves the appeal. Claims which VA has “forgotten” keep their original effective date and so can have accumulated very large retroactive payments. Any veteran who believes that he or she has filed an NOD but has not received a VA acknowledgment of the NOD or a SOC after a reasonable time (several months at least) should review their records and submit a copy of the NOD to VA along with a request for an investigation into what happened to the original NOD. If VA cannot provide documentation of a final decision on that appeal or another claim stemming from the same condition and for the same disability, the veteran should request a decision on the appeal and an effective date of the date that the claim was originally filed.
November 14th 2009
The Case For Review:
The Case For Review:
Case: Irwin v. Shinseki, CAVC No. 08-1381
BVA Decision: December 7, 2007
CAVC Decision: August 20, 2009
Key Issue(s): Whether a Notice of Appeal (NOA) initially mailed to the Board of
Veterans Appeals within 120 days of the Board decision, but not
forwarded to the Court until after 120 days from the Board
decision was timely.
Law: 38 U.S.C. §§ 7266(a)
What was decided:
The Court decided that if a NOA is not received by the Court within 120 days of
the date of the Board decision appealed from, the Court does not have jurisdiction and the appeal must be rejected.
BVA Decision: December 7, 2007
CAVC Decision: August 20, 2009
Key Issue(s): Whether a Notice of Appeal (NOA) initially mailed to the Board of
Veterans Appeals within 120 days of the Board decision, but not
forwarded to the Court until after 120 days from the Board
decision was timely.
Law: 38 U.S.C. §§ 7266(a)
What was decided:
The Court decided that if a NOA is not received by the Court within 120 days of
the date of the Board decision appealed from, the Court does not have jurisdiction and the appeal must be rejected.
What this means to veterans:
If there is one rule that has been repeatedly and consistently applied by the
Veterans Court it is that if a veteran does not submit a Notice of Appeal to the Court so that it arrives within 120 days the appeal will be dismissed. Yet veterans continue to send NOAs in after 120 days, send NOAs to the regional office, and send NOAs to the Board. This is NOT CORRECT and WILL result in rejection of the appeal and final denial of the claims.
A veteran wishing to appeal a Board decision MUST send a NOA to the Court at:
Clerk, U.S. Court of Appeals for Veterans Claims
625 Indiana Avenue, NW, Suite 900
Washington, DC 20004-2950
within 120 days (counting weekends and holidays) from the date on the Board decision. No exceptions, no excuses, no reason to cut it close. As a practical matter, there is no reason to cut it close.
If you want to appeal a Board decision, send (certified mail, return receipt requested) the NOA in as soon as you get the Board decision.
If there is one rule that has been repeatedly and consistently applied by the
Veterans Court it is that if a veteran does not submit a Notice of Appeal to the Court so that it arrives within 120 days the appeal will be dismissed. Yet veterans continue to send NOAs in after 120 days, send NOAs to the regional office, and send NOAs to the Board. This is NOT CORRECT and WILL result in rejection of the appeal and final denial of the claims.
A veteran wishing to appeal a Board decision MUST send a NOA to the Court at:
Clerk, U.S. Court of Appeals for Veterans Claims
625 Indiana Avenue, NW, Suite 900
Washington, DC 20004-2950
within 120 days (counting weekends and holidays) from the date on the Board decision. No exceptions, no excuses, no reason to cut it close. As a practical matter, there is no reason to cut it close.
If you want to appeal a Board decision, send (certified mail, return receipt requested) the NOA in as soon as you get the Board decision.
November 9th 2009
Article:
This article is provided courtesy of;
Drew N. Early, Esq.
Cracks in the Armor: Due Process, Attorney’s Fees, and the Department of Veterans Affairs
Article:
This article is provided courtesy of;
Drew N. Early, Esq.
Cracks in the Armor: Due Process, Attorney’s Fees, and the Department of Veterans Affairs
November 8th 2009
The Case For Review:
The Case For Review:
Case: Fagan v. Shinseki, CAVC No. 06-1327; Fed. Cir. No. 2008-7112
BVA Decision: January 5, 2006
CAVC Decision: February 29, 2008
Fed. Cir. Decision: July 22, 2009
Key Issue(s): Whether the benefit of the doubt rule required a medical opinion that stated it was not possible to determine if a condition was related to service to outweigh other evidence against service connection.
Law: 38 U.S.C. § 5107(b)
What was decided:
(1) The Court decided that a medical opinion which states that it was not possible to determine if a condition was related to service provides neither positive nor negative support for service connection.
(2) The benefit-of-the-doubt rule does not apply when a preponderance of adverse evidence exists.
What this means to veterans:
A medical opinion has no value if it does not contain a clear statement stating
whether the examiner believes it is or is not more likely than not that the veteran’s condition was related to service. The opinion should be treated as if it had no weight.
For veterans paying for a private medical examination, such a report is useless because the benefit-of the-doubt rule cannot turn a undecided opinion into a “tie goes to the veteran” situation. In other words, if a veteran cannot get a clear “more likely than not” opinion from a doctor, the opinion is not helpful for supporting a claim
BVA Decision: January 5, 2006
CAVC Decision: February 29, 2008
Fed. Cir. Decision: July 22, 2009
Key Issue(s): Whether the benefit of the doubt rule required a medical opinion that stated it was not possible to determine if a condition was related to service to outweigh other evidence against service connection.
Law: 38 U.S.C. § 5107(b)
What was decided:
(1) The Court decided that a medical opinion which states that it was not possible to determine if a condition was related to service provides neither positive nor negative support for service connection.
(2) The benefit-of-the-doubt rule does not apply when a preponderance of adverse evidence exists.
What this means to veterans:
A medical opinion has no value if it does not contain a clear statement stating
whether the examiner believes it is or is not more likely than not that the veteran’s condition was related to service. The opinion should be treated as if it had no weight.
For veterans paying for a private medical examination, such a report is useless because the benefit-of the-doubt rule cannot turn a undecided opinion into a “tie goes to the veteran” situation. In other words, if a veteran cannot get a clear “more likely than not” opinion from a doctor, the opinion is not helpful for supporting a claim
November 7th 2009
The Case For Review:
Case: Sharp v. Shinseki, CAVC No. 07-2481
BVA Decision: April 26, 2007
CAVC Decided: October 15, 2009
Key Issue(s): Whether the law requires compensation for dependents be based on only the first rating decision or any rating decision meeting the conditions for dependent compensation.
Law: 38 U.S.C. §§ 1115, 5110(f)
What was decided:
The Court decided that the law allows a veteran entitled to compensation and
whose disability is rated at 30% or more based on any rating decision is also entitled to additional compensation for dependents and the effective date of the dependent’s compensation will be the date of the rating decision on which the dependent’s compensation is based.
What this means to veterans:
Veterans who are awarded ratings 30% and higher generally can receive
additional benefits for dependents if they apply for those extra benefits within one year of the rating decision. If that window is missed and a later rating also awards a rating of 30% or more, a veteran can get the dependent benefits from the effective date of the second rating decision, even if the effective date of the second decision is before the effective date of the first rating.
November 6th 2009
The Case For Review:
The Case For Review:
Case: Sharp v. Shinseki, CAVC No. 07-2481
BVA Decision: April 26, 2007
CAVC Decided: October 15, 2009
Key Issue(s): Whether the law requires compensation for dependents be based on only the first rating decision or any rating decision meeting the conditions for dependent compensation.
Law: 38 U.S.C. §§ 1115, 5110(f)
What was decided:
The Court decided that the law allows a veteran entitled to compensation and
whose disability is rated at 30% or more based on any rating decision is also entitled to additional compensation for dependents and the effective date of the dependent’s compensation will be the date of the rating decision on which the dependent’s compensation is based.
What this means to veterans:
Veterans who are awarded ratings 30% and higher generally can receive
additional benefits for dependents if they apply for those extra benefits within one year of the rating decision. If that window is missed and a later rating also awards a rating of 30% or more, a veteran can get the dependent benefits from the effective date of the second rating decision, even if the effective date of the second decision is before the effective date of the first rating.
November 6th 2009
The Case For Review:
Case: Halcomb v. Shinseki, CAVC No. 07-1081
BVA Decision: December 19, 2006
CAVC Decided: October 20, 2009
Key Issue(s): Whether a standard informed consent form that did not identify any specific risks of the medical procedure to be performed was negligence
per se under 38 U.S.C. § 1151.
Law: 38 U.S.C. § 1151
What was decided:
The Court decided that the Secretary’s regulations do not require a detailed
written record of the details of all the information discussed when the medical staff obtained informed consent from the veteran to perform a surgery which damaged his eyesight and, therefore denied the claim of medical negligence.
What this means to veterans:
Veterans who are preparing for a medical procedure that requires providing
informed consent need to make sure that the medical staff obtaining the consent (usually your doctor and a staff witness) discuss all the potential problems and complications that could arise. According to this case, the medical staff do not have to record the details of what potential problems were discussed on the form that you must sign to authorize the procedure.
Because you will not be able to use the authorization document as evidence
that you were not properly informed should something happen that was not discussed, it is important to have someone of your own choosing witness the consent discussion.
BVA Decision: December 19, 2006
CAVC Decided: October 20, 2009
Key Issue(s): Whether a standard informed consent form that did not identify any specific risks of the medical procedure to be performed was negligence
per se under 38 U.S.C. § 1151.
Law: 38 U.S.C. § 1151
What was decided:
The Court decided that the Secretary’s regulations do not require a detailed
written record of the details of all the information discussed when the medical staff obtained informed consent from the veteran to perform a surgery which damaged his eyesight and, therefore denied the claim of medical negligence.
What this means to veterans:
Veterans who are preparing for a medical procedure that requires providing
informed consent need to make sure that the medical staff obtaining the consent (usually your doctor and a staff witness) discuss all the potential problems and complications that could arise. According to this case, the medical staff do not have to record the details of what potential problems were discussed on the form that you must sign to authorize the procedure.
Because you will not be able to use the authorization document as evidence
that you were not properly informed should something happen that was not discussed, it is important to have someone of your own choosing witness the consent discussion.
November 5th 2009
The Case For Review:
Case: Cushman v. Shinseki, CAVC No. 08-7129; Fed. Cir. No. 2008-7129
BVA Decision: August, 2005
CAVC Decision: February, 2008
Fed. Cir. Decision: August 12, 2009
Key Issue(s):
(1) Whether a veteran’s entitlement to benefits is a property interest protected by the Constitution.
(2) Whether the veteran received due process when his claim was
repeatedly denied with an altered medical document in the claims file.
Law: 38 U.S.C. § 1110; Fifth Amendment to the Constitution
What was decided:
(1) The Court decided that a veteran’s entitlement to benefits is a property interest protected by the Due Process Clause of the Fifth Amendment to the United States Constitution.
(2) The presentation of an altered medical document was prejudicial to the veteran and was a violation of the due process owed to the veteran.
What this means to veterans:
VA has a lot of processes and procedures that its employees are supposed to
follow in processing veterans’ benefits claims. As most claimants know, there are many occasions when VA does not follow its own procedures and, if caught, explains that there was no harm to the claimant from its actions. This decision makes the failure to follow procedures and other actions potentially harmful to a veteran’s claim potentially much more serious.
A violation of constitutional “due process” is much more significant than merely
shortcutting a VA regulation. Whether this decision causes any real change in how VA does business remains to be seen. Veterans who catch VA not following agency procedures, however, at least have a stronger argument to require VA to correct the process error and, if necessary, redo any decisions made after the error occurred. As before, it is still up to the claimant to follow his or her claim and watch for any procedure violations.
November 4th 2009
The Case For Review:
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
No. 08-1725
EDWARD E. MEEDEL, APPELLANT,
V.
ERIC K. SHINSEKI,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
The Review:
Case: Meedle v. Shinseki, CAVC No. 08-1725
Decided: November 4, 2009
Key Issue(s): How VA determines if a veteran has a hearing disability.
Law: 38 C.F.R. § 3.385
What was decided:
The Court decided that a veteran cannot average audiogram results across the specified decibel range in order for hearing loss to be classified as a disability. Mr. Meedle could not use the average of his audiogram results (26.25 decibels) to classify his hearing loss as a disability under the Secretary’s regulations
What this means to veterans:
(1) Veterans suffering hearing loss must (a) have auditory thresholds for at least three of the tested frequencies of 500, 1000, 2000, 3000, or 4000 hz of 26 decibels or greater or (b) have at least one auditory threshold of 40 decibels or greater or (c) a speech recognition score using the Maryland CNC test of less than 94 percent.
(2) Veterans seeking hearing exams from private examiners should make sure that the examiners are aware of the above requirements so that the proper attention is given to results which are close to the limits. Mr. Meedle had several results of “25” decibels, an increase in any one of which would have resulted in an award.