Gardberg & Kemmerly, P.C. Attorneys at Law

Effective Date and VA Claims for Hearing Loss

EFFECTIVE DATE AND VA CLAIMS FOR HEARING LOSS

In the case of Swain v. McDonald, No. 14-0947, the Court of Appeals for Veterans Claims (CAVC) reversed a Board of Veterans' Appeals' (Board) decision which assigned an incorrect effective date for Veteran's claim for hearing loss. The CAVC held that the Board incorrectly applied 38 C.F.R. § 4.85(a) in assigning an effective date.

Veteran applied for an increased rating for his service connected hearing loss and was denied an increase by a VA Rating Decision based on a VA Compensation and Pension Examination which did not find an increase in the severity of Veteran's hearing loss. Veteran filed a Notice of Disagreement and submitted two private audiometric examinations (one dated November 10, 2009 and one dated December 9, 2010) which showed an increase in the severity of his hearing loss. Eventually, the Board considered the case and held that it could not be determined what testing was conducted in the two private examinations indicating that 38 C.F.R. § 4.85(a) required the use of the Maryland CNC test.

Veteran's case was remanded and, on June 12, 2013, a VA medical examiner conducted a Maryland CNC test with results that were consistent with Veteran's two private examinations. Thus, the severity of Veteran's hearing loss was confirmed. The Board then issued an effective date of June 12, 2013, stating that the June 2013 examination was the only favorable evidence to have used the required Maryland CNC test.

Veteran appealed the effective date to the CAVC. The CAVC found that 38 C.F.R. § 4.85(a) does not address the effective date of claimed hearing loss, but only the severity and degree of the claimed hearing loss. Thus, the CAVC stated that the Maryland CNC test is required to assess the severity (i.e. the disability rating), but that the effective date is governed by 38 U.S.C. §§5110 and 38 C.F.R. § 3.400 which provide that the effective date of an award of increased compensation shall be the earliest date as of which it is ascertainable that an increase in disability has occurred or the date the claim was received, whichever is later. As for claims for increased ratings, the date the disability has increased should be assigned if the claim is made within one year.

The CAVC determined that it was ascertainable that Veteran's hearing loss increased as of the November 10, 2009, audiometric examination; thus, Veteran was entitled to an earlier effective date. In summary, the effective date for hearing loss is not tied to the date of the Maryland CNC test if other evidence of record supports an earlier effective date.

If you are a veteran who needs help navigating the VA disability appeals process, call one of the experienced veteran's disability attorneys at Gardberg & Kemmerly, P.C. today at 251-343-1111 for a free case evaluation. Gardberg & Kemmerly, P.C. serves veterans and their families throughout the Gulf Coast area, including, Alabama, Florida, Louisiana, and Mississippi.

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