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USCAVC 91-1179 Hensley v. Brown

VA Disability, VA Law

USCAVC 91-1179 Hensley v. Brown 5 Vet.App. 155, 160 (1993); “when 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.”

Decision Assessment Document | Hensley v. Brown, May 18, 1993, 5 Vet App 155 1993 | US Court of Appeals for Veterans Claims Court

What the case is about:

The Court held that when 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.  38 C.F.R. 3.385 does not prohibit an award of service-connected disability compensation for the veteran’s bilateral hearing loss.

The Court stated that where, as here, any of the relevant threshold hearing levels are 40 dB or more, a determination as to whether the hearing loss is service-connected must be made under the statutory and regulatory provisions governing service connection generally, and the determination of the level of disability due to any such service-connected hearing loss will be made under 38 C.F.R. 4.85.

The Court held that although service connection was not established under 38 C.F.R. 3.385, it may still be granted direct service connection under 38 C.F.R. 3.303(d).  Substantial evidence, a 15-30 dB decline in all record threshold hearing levels during service, the veteran’s statements that he suffered significant noise exposure working on an aircraft carrier during service; the veteran’s service separation report indicating his service with an attack squadron, and private physician’s reports stating that the veteran’s hearing loss was probably due to noise trauma, including exposure to jet-aircraft noise during service, supports a claim of direct service connection for a right ear hearing disability.   In light of this evidence, the Board of Veterans’ Appeals (BVA) was required to determine whether the veteran’s current right-ear disability was causally related to in-service noise exposure.  Because the BVA failed to address that question, remand is required for adjudication of that direct service connection claim.  Moreover, because the veteran has submitted “significant evidence” supporting his claim of service connection for a right-ear hearing disability, the Board must consider and discuss the applicability of the “benefit-of-the-doubt” rule in 38 U.S.C. 5107(b) in determining whether the evidence establishes entitlement to compensation.

The Court also held that the presence of a ratable increase in disability at separation would be conclusive of an in-service increase in disability, but the obverse would not be true; that is, the absence of a ratable in-service increase would not rule out a determination of an increase in disability.

Impact on VBA:

Guidance concerning application of the Court’s holding has been incorporated in the M21-1 Manual under III.iv.4.B.4 and IV.ii.2.B.

Summary of the facts and Court’s reasons:

The veteran was in the Navy 10/10/69-8/17/73, and served on an aircraft carrier with an attack squadron.  Audiograms indicated high-frequency hearing loss (HFHL) left ear (60 dB at 4000 Hz at entry and 70 dB at 4000 Hz at separation), and some apparent low-frequency decrements affecting right ear hearing:

Right ear hearing acuity in service
500   1000   2000   3000   4000   (Hz)   Date
10     -05       -10                -05    (dB)    08/69
35      25         15      05       10    (dB)    08/73

Defective hearing was diagnosed at enlistment, and bilateral HFHL was reported by the examiner at separation.  Following service, the veteran was evaluated for bilateral HFHL due to probable noise trauma in December 1989.  Subsequent audiometric testing in January 1990 reportedly indicated 40-65 dB losses at 3000 Hz and 75-85 dB losses at 4000 Hz for the “right” ear.  None of the other recorded thresholds exceeded 30 dB.  The examiner noted that there was a multi-year noise exposure history from jet aircraft and machinery, as well as some from hunting.  VA examination in April 1990 showed a 45 dB loss at 3000 Hz and 90 dB loss at 4000 Hz left ear, and indicated the following acuities for the right ear:

Right ear hearing acuity after service
500    1000    2000    3000    4000    (Hz)    Date
25        20       15         05       40      (dB)    04/90

The speech recognition score was 96%.  The diagnosis was of bilateral HFHL.  There was an 18-19 year history of unilateral left ear hearing loss.

Ultimately, the Board of Veterans’ Appeals denied service connection because right ear hearing loss was first shown many years after service, and since the 10 dB drop in left ear acuity during active duty was “of minimal significance in demonstrating an increase in the severity of any pre-service hearing deficit. “

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