I have questions on hearing loss VA exams, can you help?

Jim's Mailbag

My Dad filed for compensation for hearing loss and tinnitus in December 2009.  On April 2, 2018 the VA (finally) granted service connected hearing loss and tinnitus.  On June 22, 2018 the VA assigned 10% disability for tinnitus.  No mention of the status of assignment of disability for his hearing loss portion of his claim since April 2, 2018 grant of service connected hearing loss.  I spoke with an employee at the Regional Office handling the claim.  That person advised that the claim for hearing loss is "open" and there is "...request for current exam ..." in the record.

The results from a 2009 hearing exam (valid according to 38 CFR 4.85) yield a 40% hearing impairment. The results from a 2012 hearing exam (valid according to 38 CFR 4.85) yield a 100% hearing impairment. Given that there is no expectation of improvement in a hearing impairment of 100% established by the 2012 hearing exam results I don't understand why the VA would require another hearing exam.

My questions:
1.  Is a hearing exam by a VA examiner or audiologist contracted by the VA required to complete the assignment of hearing impairment and disability?  Please cite the relevant VA law, regulations, etc. so I can read the details.

2.  Are the results from the 2009 and 2012 hearing exams sufficient for the VA to complete the assignment of disability for hearing loss?

3.  Should I submit a 21-4138 and request expedite completion of the hearing loss disability assignment based on my Dad's age of 87?

4.  In that 21-4138 should I also make the logical argument (citing VA law, regulations, etc. that support the argument) for using the 2009 and 2012 results without need for another exam (I believe that 3.327 supports negation of the need for another hearing exam).

5.  What is the best source for VA law, regulations, etc. that relate to the specifics of the need for hearing exams by VA examiners, acceptability of evidence, etc.?

Thanks, in advance.

Jim's Reply

Your message is somewhat confusing. I'm not exactly sure I understand your goal? I'll go ahead and try to answer your questions.

1) Yes. https://www.law.cornell.edu/uscode/text/38

2) No.

3) Only if he is critically ill and entered into a hospice program.

4) You could, yes.

5) All VA regulations derive from
https://www.law.cornell.edu/uscode/text/38  Otherwise we depend on the M21-1MR https://www.benefits.va.gov/warms/M21_1MR.asp  and the https://www.benefits.va.gov/warms/bookc.asp for our day to day research.