Hearing Loss

The case of Edward E. Meedel v. Eric K. Shinseki, Opinion Number 08-1725, decided November 4, 2009, denied service-connection for bilateral hearing loss.

Hearing loss is determined by looking at 38 C.F.R. § 3.385, which provides:

For the purposes of applying the laws administered by VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent.

Meedel did not meet the first prong as his auditory threshold was not 40 decibels or greater in the prescribed frequencies. Additionally, the Maryland CNC speech recognition test was not at issue in this case. Instead, Meedel argued that he met the second requirement, that at least three of the prescribed frequencies were 26 decibels or greater. Unfortunately, he only met the 26 decibel in the 3000 and 4000 frequencies. However, he exceeded the threshold by having a 30 and 35 decibel reading on his Right ear and 30 and 30 decibel reading on his Left ear.

Meedel attempted to argue that he could average his ear ratings and meet the 26 decibel threshold, essentially using the excess decibels (worse hearing at some frequencies) to pull up the decibel level for the other two frequencies (where he could hear better).

Meedel sought to rely on 38 C.F.R. § 4.85, which does allow averaging when the VA is rating a disability. However, the Court drew a distinction between 3.385, which establishes the existence of a hearing disability and 4.485, which is used to assign the disability rating for the hearing loss. The Court concluded that averaging is not allowed when establishing the existence of a hearing disability because that is the best interpretation of the plain language of the regulation and the Secretary’s interpretation is reasonable.

Decided by Chief Judge Greene, Judge Lance and Judge Davis.