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Receiving Benefits for Service at Camp Lejeune

Thursday, August 6th, 2020

Generally, a veteran who has developed a condition needs a medical opinion stating that the condition resulted from service in order to receive service-connected benefits. However, a new regulation went into place on March 14, 2017 which allows veterans with service at Camp Lejeune during a specific period to receive service-connected benefits on a presumptive basis if they developed one of the recognized conditions. This regulation means that no medical opinion is required for certain conditions, so long as the veteran served at least 30-days at Camp Lejeune between August 1, 1953, and December 31, 1987.

Which conditions are recognized?

The VA may grant service-connected benefits without a medical opinion if a veteran with the required service develops one of the following conditions:

How do I file a claim under the new regulation?

You can file a claim for service-connected benefits (for one of the conditions listed above) by completing and submitting VA Form 21-526EZ. State the approximate dates served at Camp Lejeune and attach copies of medical records showing your diagnosis. If you have service records showing you were stationed at Camp Lejeune, it is helpful to include them. If not, simply let the VA know the approximate dates of service and ask them to request copies of your personnel/service records.

What if you develop one of the recognized conditions, but didn’t serve for a full 30 days at Camp Lejeune?

There is still a possibility of being granted service-connected benefits. The veteran can file a claim and submit records showing a currently diagnosed condition; evidence of exposure to the contaminated water at Camp Lejeune; and a medical opinion from a doctor who concluded that the currently diagnosed condition developed because of the exposure at Camp Lejeune.

How do I file a claim if I was at Camp Lejeune for less than 30-days, but developed a recognized condition?

You will need to send in a completed VA Form 21-526EZ, and you’ll want to send in the evidence discussed above. Gather medical records showing your diagnosis, records showing that you were stationed at Camp Lejeune and/or exposed to contaminated water, and a medical opinion from a doctor who concluded that you developed your condition because of your in-service exposure to contaminated water at Camp Lejeune.

Keep in mind that certain facts or details about your service may be helpful to highlight to the VA. For example, if you can show that you had a lot of exposure to the water at Camp Lejeune (say, you had to shower three times a day, or your job required you to be in or around the water all day), submit a statement explaining how much contact you had with the water. If your doctor believes the exposure you had was sufficient/high risk enough to cause you to develop your condition, make sure the doctor includes in the opinion a statement explaining  to the VA that you didn’t need to be there for 30-days to be at risk for developing your condition.

Though this regulation is highly favorable to veterans seeking service-connected benefits, veterans who do not fall within the new guidelines are still just as eligible for benefits as before. Whether you are thinking about filing a claim, or have received a denial from the VA, give us a call at (877) 838-1010 for a free consultation. We look forward to hearing from you.

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Presumptive Service-Connected Agent Orange Disability Compensation

Thursday, August 6th, 2020

Agent Orange is a highly toxic herbicide that was used by the US military during the Vietnam War. Colorless, it is known as “Agent Orange” because of an orange band painted on the drums used during storage and transport.

About three million veterans served in Southeast Asia, and no one knows for sure how many of these veterans were exposed to Agent Orange. Some service members were deployed in areas during and immediately after spraying, and others actually handled the chemical. Veterans exposed to Agent Orange have reported a variety of serious health problems and symptoms.

Based upon scientific studies, the VA has developed a list of certain diseases which are presumed to have developed as a result of a veteran’s exposure to Agent Orange during military service. These are known as “presumptive diseases.”

What must you show the VA to qualify for disability compensation?

The VA recognizes the following specific areas and specific times as adequate exposure to Agent Orange for presumptive service-connected disability compensation. You may qualify if:

Which diseases does the VA recognize as linked to herbicide exposure?

You must also have a current diagnosis of one of the diseases found on the VA’s list of conditions linked to herbicide exposure. These include:

What if I do not meet the service requirements?

If you do not meet the service requirements to benefit from the presumption, you may still be entitled to benefits; you will need to have evidence to prove your exposure to Agent Orange during your military service and that you suffer from a condition on the list described above. Additionally, if you develop a condition which is not on the list, you can still get service connection by providing evidence from a doctor that shows the development of your condition is related to Agent Orange exposure.

Have questions? Our team of attorneys and paralegals is standing by to provide answers.

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VA Disability Grant Effective Date

Monday, September 23rd, 2019

Once the VA grants service connection, it must determine the date from which payment of the increased rating should begin. The date awarded is known as the effective date.

Can veterans challenge the disability effective date?

In certain circumstances, veterans can challenge the effective date assigned by the VA to their disability. Sometimes, the VA owes decades worth of retroactive benefits. The VA may owe benefits if it failed to recognize that a claimant filed a claim for a particular benefit. Another possibility: the VA’s decision denying the claim did not become final because the RO did not provide information or material critical to the appellant process.

How does the VA assign the effective date of service connection?

Generally, the date of service connection will be the date when the veteran filed his or her claim. It seems simple but, in certain circumstances, determining the correct effective date can be very complicated.

The general effective date governing rule: the date will be effective from when the VA received the claim or when the entitlement to the benefit arose, whichever is later. 38 C.F.R. § 3.400 (2009). With reopen claims, the general rule is that the effective date is the date the VA received the reopened claim or the date the benefit arose, whichever is later.

Things get tricky when a veteran files a claim that is not fully developed or files for a different condition. For example, if a veteran files a claim without an official diagnosis. If a diagnosis is later confirmed, the VA may say that the date the benefit entitlement arose is actually the diagnosis date.

Another example: if a veteran files a claim for PTSD but he or she really suffers from depression. In this case, the veteran should argue that depression is within the breath of the PTSD claim. Thus, the service connection effective date for depression should be the date when he or she filed the PTSD claim.

How can veterans receive an earlier effective date?

The VA may grant an earlier effective date than the general rule in the following circumstances:

Claims based upon clear and unmistakable error.

If this type of claim succeeds, the effective date will be the date that would have been assigned if a previous final decision had been granted.

Disability compensation claims received within one year of discharge from military service.

Generally, with these claims, the effective date will be the date after discharged, assuming the disability existed on the date after discharge from service.

Death compensation claims received within one year of the veteran’s death.

Generally, the effective date will be the first day of the month in which the veteran died.

Claims for an increased veterans disability rating.

Generally, it will be the date the claim was received. Or, the date that the evidence showed the veteran became entitled to a higher disability rating, whichever is later. However, the effective date for an award of a rating increase may date back one year prior to the date of a claim for an increase if “it is ascertainable that an increase in disability had occurred” within this time frame.

Because it can be difficult to establish the correct effective date, it is best to speak to an experienced attorney.

What can you do if you disagree with the effective date assigned by the VA?

First, speak to an attorney experienced in veterans law to discuss why you believe you are entitled to an earlier effective date. You and your attorney can decide whether your claim meets one of the exceptions, or whether there are factors that may allow for you to be eligible for an earlier effective date. If you received a rating decision within the last year and disagree with the effective date, contact us at 1-877-838-1010. Our experienced veterans benefits attorneys will be happy to provide you with a free case evaluation.

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VA Deadlines and Your Case

Wednesday, August 8th, 2018

Do the VA Deadlines Matter?

If you miss a VA deadline, it may jeopardize your case and you will need to start your claim all over from the beginning. This restarting of the clock can be especially frustrating if you want to pursue the claim any further in the future.

The most important time to think about deadlines is when you have an appeal going on or when you are considering an appeal. While there are some very rare exceptions, it is very important to comply with the VA’s deadlines.

Some basics about appeals and deadlines:

VA Deadlines to Know

Notice of Disagreement

Once you get a decision from the VA, you have one year from the date the decision was mailed by the VA to file a Notice of Disagreement. It’s important to note that the year starts from the date of the VA mailing, and not from the date you received the document.

Statement of the Case

If you start an appeal by filing a Notice of Disagreement, and the VA continues to deny your claim, the VA will send a Statement of the Case. If you don’t respond to the Statement of the Case with a Substantive Appeal, your claim is over. You have 60 days from the date of the statement mailing, or one year from the date of the original decision denying your claim – whichever is later.

Decision from Board of Veterans’ Appeals

If you get denied by the Board of Veterans’ Appeals after you appeal a case, to the Board of Veterans’, you have 120 days from the date of the decision being mailed to you in which to appeal the decision to the Court of Appeals for Veterans Claims.

Other Dates to Note

Action Requests

At some point, you may receive a letter from the VA asking you to do something. They may ask for additional information or request that you fill out a form that wasn’t filled out completely. The VA may provide a deadline for when they need to hear back from you. Sometimes those deadlines are official and legal, and sometimes they’re not, but if you don’t respond by the deadline, the VA can use that to delay or deny your claim.

Effective Dates

If you win a case at the VA and are awarded disability benefits, the date that your benefits begin may be determined by the date you file your claim. If you’re asking for service connection or an increased rating, the date you file your claim for those benefits is generally (there are some exceptions) about as early as your benefits can go back.

RAMP

Some of these rules are going to change with RAMP: Rapid Appeals Modernization Program. RAMP is currently being tested; when that law goes into effect, there will be different deadlines for different types of appeals. If you have questions about VA deadlines and your claim, contact a veterans benefits attorney.

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The Case for Working with a NOVA-member Attorney

Thursday, May 10th, 2018

The National Organization of Veterans’ Advocates, Inc. (NOVA) is a non-profit educational organization founded in 1993 whose mission is to:

Why should veterans work with a NOVA member? NOVA attorneys have access to the greatest number of veterans resources, recognize the importance of ongoing education, and work with others to ensure that veterans and their dependents receive the best possible representation.

NOVA Attorneys Stay Up-to-date on Veteran Issues

Membership in NOVA uniquely prepares its members to represent veterans through educational resources, discussion boards, and seminars. The world of veterans benefits is ever changing and keeping current with all of the new developments can be difficult.

NOVA makes it easy for its members to stay up-to-date with weekly emails that include updates pertaining to veterans affairs, news, legislation, and events. This regular communication ensures that NOVA members constantly have timely information, enabling them to provide better representation for their clients.

NOVA Attorneys Collaborate to Address Veteran Challenges

NOVA encourages members to participate in online Forums to share advice on handling issues that may arise during a veterans claim. Forum participants may communicate with each other regarding challenges that have arisen in dealing with VA and how those challenges can be better addressed.

NOVA also holds two large conferences per year. The conferences include individual seminars that provide training on how to approach specific types of claims, offer physicians explanations regarding medical conditions—helping representatives better understand the conditions their clients are dealing with—, update members on new developments in the VA system, and offer suggestions on preparing arguments for the best chance of success.

In addition to these large conferences, NOVA provides frequent member-only webinars in relevant areas throughout the year.

NOVA Attorneys Directly Address the VA About New Initiatives

Representatives from the Department of Veterans Affairs attend nearly every NOVA conference to present on new VA initiatives. They hold question and answer sessions following the presentations, which allows NOVA members to speak directly with higher level VA employees regarding challenges faced by representatives and veterans and get help to overcome those challenges.

Find A NOVA Attorney

NOVA’s online directory listing helps veterans connect with their members. Three of the six NOVA members in Virginia are right here at Goodman Allen Donnelly – Nancy Foti, Krystle Waldron, and Erin Ralston.

Connect with a Goodman Allen Donnelly NOVA attorney.

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Issues Affecting Women Veterans

Wednesday, March 7th, 2018

Jessica Radanavong

Women are the fastest growing group within the veteran population. It is estimated that by 2020, women veterans will comprise nearly 11% of the total veteran population. The difficulties faced upon their return to civilian life are often different than those of their male counterparts.

Reproductive Health

Today’s female veterans are faced with more reproductive issues than prior generations. Studies have shown that they are more prone to breast cancer and cervical cancer in addition to other types of cancers that may be due to exposure to toxins while on deployment.

Mental Health and PTSD

Today’s generation of female veterans is the first to have served alongside men in combat. Some return home with psychological scars and may require treatment for Post Traumatic Stress Disorder (PTSD) and other anxiety disorders. (For more information on veterans and PTSD, read our blog, Vietnam Veterans and PTSD)

A recent study published by the VA shows that more than half of women veterans may need mental health care. Yet about 24% of the women who expressed a need for mental health care were hesitant to seek care. In many cases, they were hesitant due to fear of negatively affecting their jobs, impacting the relationships with their families and spouses, lack of childcare, and the stigma associated with past sexual trauma.

Social Stigma

The historically male-dominated culture in VA facilities can be intimidating for women and may cause misgivings about seeking care in an environment predominantly geared toward the treatment of men. This is especially true for healthcare—mental health and sexual trauma, in particular—that are burdened by social stigmas.

Sexual Trauma

Military sexual trauma is a significant health issue faced by today’s female veterans. It is estimated that about one in five women are sexually traumatized while serving in the military.

GAD Attorney Nancy Foti represented a female veteran who was raped by a group of sailors while on deployment in the late 1970s. As a result of the incident, the veteran developed a psychiatric disability. At the time of the rape, she did not tell her superiors or report the incident. As a result, the VA was not able to find any evidence in the service records that the rape occurred and denied her claim for many years, which left her feeling re-victimized.

The VA has special rules regarding psychiatric claims involving personal assault. Ms. Foti was able to eventually win the case by looking to other evidence, which indicated that the veteran suffered from symptoms of a psychiatric condition that began after the rape. This evidence included treatment records for an eating disorder and statements from family and friends in whom the client had confided to establish the occurrence of the rape.

At Goodman Allen Donnelly, we understand the difficulties facing women veterans. We are experienced and have successfully represented women in their fight for the benefits they are entitled to. Because we have three female attorneys on staff, you can be sure that your case will be handled with the utmost respect and attention.

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Vietnam Veterans & PTSD

Monday, October 9th, 2017

PTSD Diagnosis History

The Vietnam War is defined by the VA as the period from February 1961 through May 1975. PTSD (post-traumatic stress disorder) is a mental health condition which was first recognized by the American Psychiatric Association in 1980. This means that, at the time our Veterans were serving in the Vietnam War, PTSD was not a recognized diagnosis. Thus, their service records and even post-service treatment records may not show treatment for or a diagnosis of PTSD.

Since that time, there have been several updates to the understanding, diagnosis, and classification of PTSD. The key factor in a PTSD diagnosis is a traumatic event, also called a “stressor.” In order to be diagnosed with PTSD, the veteran must have been exposed to an event considered traumatic enough to satisfy the “stressor criterion.”

The VA recognizes that this information documenting the occurrence of the stressor may not be in a veteran’s service records. So, the VA has created a special set of rules regarding the ways in which a veteran can prove the stressor occurred.

Evidence of a Stressor

In the following cases, unless there is clear and convicting evidence to the contrary, the veteran’s statements alone can establish the occurrence of the stressor:

Evidence of a Stressor Related to Personal Assault

If the PTSD claim is based on personal assault, the following evidence can be used to establish the occurrence of the stressor:

Additionally, if the veteran’s file is silent for symptoms or treatments for PTSD during or following service, then the veteran and his or her family and friends can submit statements detailing how the veteran acted following the in-service stressor.

Get the Help You Deserve

If you are a Vietnam Veteran or if you are a veteran with questions about what evidence is needed to establish entitlement to disability benefits for PTSD, or the ways in which you can develop the evidence needed to win your case, please contact us today.

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Attorney vs. Service Officer

Wednesday, April 19th, 2017

Common Misunderstandings Regarding Type of Representation – Attorney vs. Service Officer

Obtaining maximum allowed disability benefits is key to ensuring that veterans and their dependents get what they are entitled. Too often the Department of Veterans Affairs (VA) denies a claim, in part or in total, without adequately assisting with the development of the evidence, or deciding claims based on the existing law. After years of frustration dealing with the VA, some veterans may simply give up without understanding that there are qualified attorneys able to offer representation.

Below is a list of some of the most common misunderstandings:

Misunderstanding #1 – I Can’t Hire an Attorney Because I Already Have a Service Officer

When initially filing a claim, or seeking a higher rating, the majority of veterans are initially represented by national service officers from veterans service organizations, such as the Disabled American Veterans, American Legion, or Veterans of Foreign Wars. Many veterans believe that if they have a service organization representative, they are not allowed to hire an attorney during an appeal, or to handle particular claim(s) while the service officer handles another claim(s).

There is no law that requires you to be represented on all claims by the same representative or organization. So, all veterans are allowed to be represented by an attorney and a service officer on different claims. There is also no law that says you must keep the same representative. So, you are allowed to switch from a service officer to an attorney. Some service organizations have a policy that unless they can represent a veteran on all of claims, they are not willing to represent a veteran at all. While this may be an organization’s own policy, there is no law that requires this to be done. Therefore, a veteran is allowed to have more than one representative, as long as they are for different claims.

The important factor for a veteran to keep in mind is that if he/she is dissatisfied with his/her current representative, whether it is a service officer or an attorney, a veteran may always switch representatives.

Misunderstanding #2 – I Can’t Afford to Have an Attorney Represent Me at the VA or the Court

Attorneys representing at the VA level, which includes the Regional Office and the Board of Veterans’ Appeals, by and large work on a contingency basis. That means the attorney will not get paid for any representation unless the veteran gets awarded disability compensation, i.e., retroactive benefits. In other words, an attorney will not get paid unless the case is won and compensation is awarded to the veteran. The attorney will only get a percentage of the retroactive amount that VA awards.

The U.S. Court of Appeals for Veterans Claims is not part of the VA, and lawyers who represent veterans there do not require a veteran to pay any out-of-pocket fees. Generally, if the attorney is successful in prevailing at the Veteran’s Court, and a case is sent back to the VA to be redone, the attorney can ask for fees and expenses through a government program called the Equal Access to Justice Act (or EAJA). These funds do not come out of a veterans benefits.

Other rules require an attorney who is paid for representing a veteran at the VA to offset any fees owed by the EAJA fees paid for the same work at the Court.

Misunderstanding #3 -As Long as I Have a Veterans Benefits Attorney Represent Me, I Will Win My Case

With the passage of a law a number of years ago, which allowed veterans to hire and pay attorneys at an earlier stage in the claims process, more attorneys are advertising that they can handle veteran’s benefits issues. While there are attorneys who do advertise and practice veterans benefits law, not all who say they represent veterans actually provide the representation or fully understand the complexities of current VA laws and regulations, changes made to the law, or the details of the claims process system.

Anyone considering hiring a lawyer should take care to ask the attorney about their experience in veteran’s benefits law to make sure that they can explain how VA “thinks” and go over what steps are needed to have the best chance to win a case and have it addressed in a timely manner.


This article was also posted on the Maryland State Bar Association Bar Bulletin. Follow the link to read it.

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The proper interpretation of “suicidal ideation”

Thursday, March 30th, 2017

The proper interpretation of “suicidal ideation,” a symptom listed in the 70% rating criteria for a psychiatric disorder.

On March 27, 2017, the United States Court of Appeals for Veterans Claims (Court) issued a decision in Bankhead v. Shulkin, vacating and remanding the Board of Veterans’ Appeals (Board) decision denying entitlement to a rating greater than 50% for major depressive disorder.

The Court examined the term “suicidal ideation” located in 38 C.F.R. § 4.130’s criteria for a 70% disability evaluation for a service-connected psychiatric disorder.

Mr. Bankhead, the veteran, argued that the Board “mischaracterized his suicidal ideation as wholly ‘passive,’ conflated suicidal ideation with risk of self-harm, and failed to adequately explain why fluctuations in suicidal ideation and impaired impulse control did not, at a minimum, warrant the assignment of staged evaluations.”

The Court initially addressed the list of symptoms contained in the 50%, 70%, and 100% evaluations and reaffirmed the well-established idea that the list is non-exhaustive, indicating that VA does not need to find the presence of all of the symptoms to assign a particular evaluation. The Court also restated the concept that “although the veteran’s symptoms are the ‘primary consideration’ in assigning a disability evaluation under § 4.130, the determination as to whether the veteran is entitled to a particular evaluation ‘also requires an ultimate factual conclusion as to the veteran’’ level of [occupational and social] impairment. . . .’”

The Court then discussed the concept of “suicidal ideation,” a symptom listed under the 70% rating criteria for a psychiatric disorder. It found, after explaining various definitions, studies and VA practice guidelines, that “both passive and active suicidal ideation are comprised of thoughts. . . .” And it further commented that the language of the VA regulation indicates the presence of suicidal ideation alone is sufficient without “descriptors, modifiers, or indicators.”

The evidence specific to Mr. Bankhead’s case demonstrated numerous suicidal thoughts and behaviors of varying severity, frequency, and duration. The Board recognized this, but it determined that the veteran’s “passive” suicidal ideation did not rise to the level contemplated in a 70% rating because he (1) was at a low risk of self-harm, (2) had been treated on an outpatient basis, (3) retained social and occupational functioning, and (4) assured treating sources that he would refrain from self-harm.

Based on the particular facts in the case, the Court found that the Board “erroneously grafted risk of self-harm onto the symptom of suicidal ideation listed in the criteria for a 70% evaluation.” The Court also found that the Board erred by imposing a higher standard than in the rating criteria by requiring that the veteran had to be hospitalized or treated on an inpatient basis. Significantly, the Court stated that “although the mental disorders rating schedule provides leeway for VA adjudicators to consider symptoms a veteran experiences that are not listed in the schedule, VA is not at liberty to create evaluation criteria out of thin air in an individual case and then use the absence of those criteria in the veteran’s records to deny a particular mental disorder evaluation.”

Read a full Court decision.

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Court decision on rating criteria for hearing loss

Tuesday, March 28th, 2017

Does the VA schedular rating criteria for hearing loss contemplate functional effects of hearing impairment?

On March 6, 2017, the United States Court of Appeals for Veterans Claims (Court) issued a decision in Doucette v. Shulkin, affirming the Board of Veterans’ Appeals (Board) decision denying entitlement to an initial compensable rating for his service-connected hearing loss. Judge Lance, with whom Chief Judge Davis joined, wrote the majority opinion and Judge Schoelen issued a dissenting opinion.

Mr. Doucette argued that the Board misapplied 38 C.F.R. § 3.321(b)(1) and failed to provide an adequate statement of reasons or bases for its decision that he was not entitled to referral for extraschedular consideration. The Secretary responded that the service-connected hearing loss did not present such an exceptional disability picture that evaluation under the rating schedule was not adequate.

The Court initially addressed whether the schedular rating criteria for hearing loss contemplates specific functional effects of hearing impairment. It explained that the rating criteria for hearing loss do not list any particular symptoms or functional effects; rather, review is done through the mechanical application of the audiometric testing results to a rating table. After explaining the history of the current rating criteria, the Court held “that the rating criteria for hearing loss contemplate[s] the functional effects of decreased hearing and difficulty understanding speech in an everyday work environment, as these are precisely the effects that VA’s audiometric tests are designed to measure.”

The Court then explained that the rating criteria does not account for, other functional effects, such as dizziness, vertigo, or ear pain. The Court made clear that, contrary to Mr. Doucette’s argument, the Board was not required to engage in an extraschedular analysis in all hearing loss claims because the purpose of extraschedular ratings is to recognize exceptional or unusual circumstances. The Court stated that “a hearing loss claimant could provide evidence of numerous symptoms, including—for purposes of example only—ear pain, dizziness, recurrent loss of balance, or social isolation due to difficulties communicating, and the Board would be required to explain whether the rating criteria contemplate those functional effects.”

Based on the particular facts in Mr. Doucette’s case, the Court found that the reported effects of his hearing loss, for example difficulty distinguishing sounds in a crowded environment, locating the source of sounds, understanding conversational speech, hearing the television, and using the telephone, are each a manifestation of his difficulty hearing or understanding speech and already contemplated by the schedular rating criteria. As a result, the Court held that the Board had no obligation to address extraschedular referral. Notwithstanding that finding, it noted that the Board did provide an extraschedular analysis, and determined that the Board properly determined that the reported symptoms were not exceptional or unusual.

In her dissenting opinion, Judge Schoelen wrote that she “believe[d] the rating criteria are inadequate to contemplate a veteran’s functional effects and entire disability picture.” Judge Schoelen commented that “the rating schedule for hearing loss does not explain what the effects of the match of puretone threshold with speech discrimination should be.” She noted it was impossible for the Court to interpret the severity or functional effects of a veteran’s hearing loss based on the tables provided by VA in its regulations, and she stated that “[t]he majority fails to explain how the Board could review the functional effects of hearing loss and match those functional effects with nonexistent criteria.”

Read more on the Court’s decision.

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