Veteranclaims’s Blog

October 6, 2021

Single Judge Application; hearing loss effective date; Swain v. McDonald, 27 Vet.App. 219 (2015); in Swain v. McDonald the Court explained that 38 C.F.R. § 4.85 does not govern the effective date for hearing loss ratings. See 27 Vet.App. at 224-25. The Court held that the effective date for hearing loss may be earlier than the date of an audiometric test that satisfies the criteria under 38 C.F.R. § 4.85, and that, “unless otherwise specifically noted in the statute or regulation, [38 U.S.C. § 5110(b)(3)] and [38 C.F.R.] § 3.400 govern the effective date for disability benefits claims.” Id. at 225. The Board noted some of Mr. Garcia’s statements about his worsening hearing loss before 2019, but the Board denied entitlement to a compensable rating before June 11, 2019, seemingly because the record did not contain any other “audiometric testing results during this portion of the appeal period which comply with 38 C.F.R. § 4.85 for rating purposes.” R. at 11.;

Filed under: Uncategorized — veteranclaims @ 10:25 am

Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 20-1638
CANDELARIO GARCIA, APPELLANT,
V.
DENIS MCDONOUGH,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before PIETSCH, Judge.
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a),
this action may not be cited as precedent.
PIETSCH, Judge: Candelario Garcia appeals through counsel a January 28, 2020, Board
of Veterans’ Appeals (Board) decision that denied entitlement to a compensable disability rating
for bilateral hearing loss effective from September 3, 2010, to June 11, 2019.1 This appeal is
timely, and the Court has jurisdiction to review the Board’s decision pursuant to 38 U.S.C.
§§ 7252(a) and 7266(a). Single-judge disposition is appropriate as the issue is of “relative
simplicity” and “the outcome is not reasonably debatable.” Frankel v. Derwinski, 1 Vet.App. 23,
25-26 (1990). For the reasons that follow, the Court will vacate the part of the Board’s January 28,
2020, decision that denied a compensable disability rating effective from September 3, 2010, to
June 11, 2019, and remand the matter for readjudication consistent with this decision.
I. FACTS
Mr. Garcia served on active duty in the U.S. Army from November 1972 to October 1974
and from August 2002 to July 2003. Record (R.) at 865, 857.
1The Board denied Mr. Garcia a disability rating in excess of 50% for bilateral hearing loss from June 11, 2019. Mr. Garcia does not challenge that part of the Board’s decision. See Cacciola v. Gibson, 27 Vet.App. 45, 57
(2014) (holding that when an appellant expressly abandons an appealed issue, the appellant relinquishes the right to
judicial review of that issue, and the Court will not decide it). The Board also remanded his claim for headaches, and
that matter is not before the Court. See Breeden v. Principi, 17 Vet.App. 475, 478 (2004) (per curiam order).
2
In September 2010, Mr. Garcia sought VA benefits for hearing loss. R. at 962. At a
February 2012 VA audiological examination, his puretone thresholds at the 1000 Hertz (Hz), 2000
Hz, 3000 Hz, and 4000 Hz levels were, respectively, 40 decibels (dB), 75 dB, 0 dB, and 85 dB in
the right ear, and 45 dB, 75 dB, 80 dB, and 85 dB in the left ear. R at 847-48. Maryland CNC test
results showed that Mr. Garcia had speech recognition of 88% for the right ear and 88% for the
left. R. at 848-49. March 2012 audiometric testing showed puretone thresholds at the 1000, 2000,
3000, and 4000 Hz levels of 35 dB, 70 dB, 80 dB, and 85 Db, respectively, in the right ear, and 45
dB, 80 dB, 80 dB, and 90 dB, respectively, in the left. R. at 825.
A VA regional office (RO) granted Mr. Garcia service connection for bilateral hearing loss,
rated as noncompensable effective September 3, 2010. R. at 811. Mr. Garcia disagreed with the
assigned disability rating and requested that VA obtain records from a Dallas VA hospital where
he was advised to get hearing aids. R. at 803, 781. In July 2013, VA obtained the treatment record
from the Dallas VA medical center, which reflected that Mr. Garcia underwent audiometric testing
there in March 2012. R. at 775-77. The treatment note indicated that he had normal hearing in the
250 to 500 Hz range with “a mild sloping to profound sensorineural hearing loss” in the 1000 to
8000 Hz range in both ears. Id.
Mr. Garcia underwent another VA audiological evaluation in September 2014, at which
the examiner noted that Mr. Garcia denied having hearing changes since his 2012 audiogram. R.
at 294. Though an audiogram was conducted, the results were not printed and are not part of the
record of proceedings before the Court. But the examiner summarized the test results by again
stating that Mr. Garcia had normal hearing in the 250-to-500 Hz range but had “mild sloping to
profound sensorineural hearing loss 1000 [to] 8000Hz” in both ears. Id. The examiner also noted
that Mr. Garcia’s word recognition ability was good and that his “[h]earing thresholds are not
significantly different from the 2012 audiogram.” Id.
The Board remanded Mr. Garcia’s claim in April 2018 for VA to provide him with a new
examination. R. at 389-93. In June 2019, Mr. Garcia underwent another VA examination, at which
his puretone threshold results at the 1000, 2000, 3000, and 4000 Hz levels were, respectively, 55
dB, 90 dB, 95 dB, and 95 dB in the right ear, and 55 dB, 90 dB, 95 dB, and 95 dB in the left. R. at

Maryland CNC testing revealed speech recognition of 82% in the right ear and 80% in the
left. Id. In August 2019, the RO increased Mr. Garcia’s disability rating for bilateral hearing loss
3
to 50%, effective June 11, 2019, the date of the VA examination. R. at 196-207. However, the RO
continued to deny entitlement to a higher disability rating effective before June 11, 2019. R. at
223-45.
The Board issued the decision on appeal in January 2020, relying on the puretone
thresholds and averages from the March 2012 evaluation, as well as the CNC Maryland testing
from the February 2012 examination. The Board applied Mr. Garcia’s test results to the rating
criteria to assign him a noncompensable disability rating. The Board acknowledged Mr. Garcia’s
statements that his hearing was worse than 0% disabling but found that it was bound by the rating
criteria. The Board did not discuss the September 2014 examination or the duty to assist.
On appeal, Mr. Garcia argues that the Board erred by failing to ensure that VA complied
with the duty to assist by failing to obtain the September 2014 VA audiogram results and by failing
to seek clarification of the February 2012 VA examination, which, as the Board acknowledged,
clearly contained an error. He also argues that the Board erred by failing to act in accordance of Swain v. McDonald, 27 Vet.App. 219 (2015), by concluding that the effective date for his 50% disability rating could not be earlier that the date of the audiometric test on which the rating was
based.
The Secretary responds that the Board fully considered the evidence and the criteria in the
applicable diagnostic code. The Secretary states that the Board was not required to seek
clarification of the February 2012 examination, because it acknowledged the likely typographical
error and used the more favorable March 2012 test results. The Secretary also contends that Mr.
Garcia has not demonstrated prejudicial error with respect to the Board’s failure to obtain the
September 2014 audiogram results because the notes from that examination show that the
audiogram would not warrant a higher disability rating. The Secretary also argues that the Board
clearly explained that a higher rating was not warranted before June 11, 2019, because the evidence
fails to show that an increase in severity was ascertainable before that date.
II. ANALYSIS
The Board analyzed Mr. Garcia’s bilateral hearing disability under the rating criteria for
hearing loss set forth at 38 C.F.R. §§ 4.85 and 4.86, applying those criteria to the test results of the
audiological examinations of record. See 38 C.F.R. §§ 4.85 (2021), 4.86 (2021) (providing for
4
disability ratings from 0% to 100%, in increments of 10%, based on audiological test results);
Lendenmann v. Principi, 3 Vet.App. 345, 349 (1993). The Board’s determination of the proper
disability rating is a finding of fact that the Court reviews under the “clearly erroneous” standard
of review. See 38 U.S.C. § 7261(a)(4); Buckley v. West, 12 Vet.App. 76, 81 (1998). As with any
finding on a material issue of fact and law presented on the record, the Board must support its
determination with an adequate statement of reasons or bases that enables the claimant to
understand the precise basis for that determination and facilitates review in this Court. 38 U.S.C.
§ 7104(d)(1); Gilbert v. Derwinski, 1 Vet.App. 49, 56-57 (1990).
Mr. Garcia argues that the Board erred by failing to seek the September 2014 audiogram
results and by failing to seek clarification of the September 2012 examination. In analyzing the
appropriate disability rating for the period from September 3, 2010, to June 11, 2019, the Board
noted, based on the other results of record, that the February 2012 audiometric evaluation result
likely contained a typographical error in listing 0 dB at the 3000 Hz level. Thus, the Board relied
on the more favorable March 2012 audiometric results, which it noted were also in line with the
August 2010 results. The Court does not discern any prejudicial error with respect to this aspect
of the Board’s decision. See 38 U.S.C. § 7261(b)(2) (requiring the Court to “take due account of
the rule of prejudicial error”); Shinseki v. Sanders, 556 U.S. 396, 409 (2009) (holding that the
harmless-error analysis applies to the Court’s review of Board decisions and that the burden is on
the appellant to show that he or she suffered prejudice as a result of VA error).
The Court agrees with Mr. Garcia that the Board erred by failing to explain why it was not
required to obtain the September 2014 audiogram results. The Board did not discuss the September
2014 audiology examination or the duty to assist. The record of proceedings before the Court
indicates that audiometric results were available but have never been made part of the record.
Though the Secretary provides several explanations why these results would not warrant a higher
disability rating based on the other statements in the examination report, the Board made no such
findings and the Court cannot accept post hoc rationalizations or find facts in the first instance to
determine prejudicial error. See Martin v. Occupational Safety & Health Review Comm’n, 499 U.S. 144, 156 (1991) (“‘[L]itigating positions’ are not entitled to deference when they are merely appellate counsel’s ‘post hoc rationalizations’ for agency action, advanced for the first time in the reviewing court.”); Tadlock v. McDonough, _ F.4d _, No. 20-1762, 2021 WL 2964328 (Fed.
5
Cir. July 15, 2021). Further, the audiometric results were clearly relevant to this appeal and should have been obtained by VA. See 38 U.S.C. § 5103A(a)(1), (b)(1); Moore v. Shinseki, 555 F.3d 1369, 1372-75 (Fed. Cir. 2009).
As to Mr. Garcia’s other argument, in Swain v. McDonald the Court explained that 38 C.F.R. § 4.85 does not govern the effective date for hearing loss ratings. See 27 Vet.App. at 224-25. The Court held that the effective date for hearing loss may be earlier than the date of an audiometric test that satisfies the criteria under 38 C.F.R. § 4.85, and that, “unless otherwise specifically noted in the statute or regulation, [38 U.S.C. § 5110(b)(3)] and [38 C.F.R.] § 3.400 govern the effective date for disability benefits claims.” Id. at 225. The Board noted some of Mr. Garcia’s statements about his worsening hearing loss before 2019, but the Board denied entitlement to a compensable rating before June 11, 2019, seemingly because the record did not contain any
other “audiometric testing results during this portion of the appeal period which comply with 38 C.F.R. § 4.85 for rating purposes.” R. at 11.
In light of Swain, the Court finds that the Board’s reasons or bases are inadequate. See Swain, 27 Vet.App. at 225; see also 38 U.S.C. § 7104(d)(1).
Given this disposition, the Court need not, at this time, address Mr. Garcia’s other
arguments. See Best v. Principi, 15 Vet.App. 18, 20 (2001) (per curiam order) (holding that “[a]
narrow decision preserves for the appellant an opportunity to argue those claimed errors before the
Board at the readjudication, and, of course, before this Court in an appeal, should the Board rule
against him”). The Court reminds the Board that “[a] remand is meant to entail a critical
examination of the justification for [the Board’s] decision,” Fletcher v. Derwinski, 1 Vet.App. 394,
397 (1991), and must be performed in an expeditious manner in accordance with 38 U.S.C. § 7112.
III. CONCLUSION
Upon consideration of the foregoing analysis, the record of proceedings before the Court,
and the parties’ pleadings, the part of the January 28, 2020, Board decision that denied entitlement
to a compensable disability rating for bilateral hearing loss from September 3, 2010, to June 11,
2019, is VACATED and the matter is REMANDED for readjudication consistent with this
decision.
DATED: September 29, 2021
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Copies to:
Glenn R. Bergmann, Esq.
VA General Counsel (027)

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