Hall v. Mansfield

• Court: Court of Appeals for the Federal Circuit
• Decided: October 4, 2007
• Docket: 2007-7052
• Status: Unpublished

Opinion

NOTE: This disposition is nonprecedential.

United States Court of Appeals for the Federal Circuit

2007-7052

JAMES M. HALL,

Claimant-Appellant,

v.

GORDON H. MANSFIELD, Acting Secretary of Veterans Affairs,

Respondent-Appellee.

Virginia A. Girard-Brady, ABS Legal Advocates, P.A., of Lawrence, Kansas, for claimant-appellant. Of counsel was Heather Cessna.

Douglas K. Mickle, Trial Attorney, Commercial Litigation Branch, Civil Division, United States Department of Justice, of Washington, DC, for respondent-appellee. With him on the brief were Peter D. Keisler, Acting Attorney General, Jeanne E. Davidson, Director, and Donald E. Kinner, Assistant Director. Of counsel was Kent G. Huntington. Of counsel on the brief were Michael J. Timinski, Deputy Assistant General Counsel, and Martin J. Sendek, Attorney, United States Department of Veterans Affairs, of Washington, DC.

Appealed from: United States Court of Appeals for Veterans Claims

Judge John J. Farley, III (Retired) NOTE: This disposition is nonprecedential.

United States Court of Appeals for the Federal Circuit 2007-7052

__________________________

DECIDED: October 4, 2007 __________________________

Before MICHEL, Chief Judge, LOURIE and GAJARSA, Circuit Judges.

PER CURIAM.

James M. Hall (“Hall”) appeals the determination of the Court of Appeals for

Veterans Claims’ (“Veterans Court’s”) determination that his left ear otitis media, while

service connected, was not compensable. Because we agree with the Veterans Court’s

interpretation of the term “hearing aid” as used in the regulation at issue, we affirm.

I. BACKGROUND

James M. Hall served in active duty in the U.S. Navy from 1974 to 1978. He has

been diagnosed with left ear otitis media (“ear condition”). As treatment for his ear

condition, he had a permanent tube placed in his left ear sometime around 1995. In September 1998, Hall filed a claim for service connection for his ear condition.

Although his claim was originally denied, it was re-adjudicated following enactment of

the Veterans Claims Assistance Act. In 2003, the Regional Office (“RO”) granted

service connection for Hall’s ear condition. The RO, however, assigned Hall’s condition

with a noncompensable evaluation because Hall had not shown compensable hearing

loss.

Hall appealed the RO’s decision to the Board of Veterans’ Appeals (“Board”).

The Board evaluated hearing tests as well as lay evidence and denied an initial

compensable level for Hall’s ear condition. Although the Board recognized that Hall had

argued that some of the hearing tests were inadequate because they were performed

with his ear tube in place, the Board did not address the issue.

Hall then appealed to the Veterans Court, arguing that his case should be

remanded to the Board because it failed to address his contention that his hearing

exams were improperly conducted with his ear tube in place. The Veterans Court

rejected Hall’s argument, and this timely appeal followed.

II. DISCUSSION

We review the Veterans Court’s interpretation of regulations de novo. Smith v.

Nicholson, 451 F.3d 1344, 1347 (Fed. Cir. 2006). Hall argues that the Veterans Court

did not properly construe the term “hearing aids” in 38 C.F.R. § 4.85(a), which states in

relevant part that: “Examinations will be conducted without the use of hearing aids.”

The Veterans Court did not explicitly construe this term. Rather, it stated that the

regulation does not prohibit examinations with an ear tube in place and that Hall had not

presented sufficient evidence to liken the effect of his ear tube to a hearing aid. Thus, it

2007-7052 2 appears that the Veterans Court construed the term as “a hearing aid or a device that

has the same effect as a hearing aid.” In the present appeal, Hall does not contest the

Veterans Court’s determination that the regulation does not explicitly preclude hearing

examinations with ear tubes in place. Rather, he contends that ear tubes fall within his

proffered interpretation of “hearing aid”: “any device that would assist an individual’s

hearing.”

The regulations do not provide a definition for the term “hearing aid,” so we begin

by determining whether the term has a plain and ordinary meaning. See Barnhart v.

Sigmon Coal Co., 534 U.S. 438, 450 (2002); see also Tesoro Haw. Corp. v. United

States, 405 F.3d 1339, 1346 (Fed. Cir. 2005) (“We construe a regulation in the same

manner as we construe a statute, by ascertaining its plain meaning.”). A review of both

general purpose and medical dictionaries makes clear that the term “hearing aid” has a

plain and ordinary meaning: “a device that amplifies sound to aid in hearing.” See

Dorland’s Illustrated Med. Dictionary 41 (30th ed. 2003) (“a device that amplifies sound

to help deaf persons hear, often referring specifically to devices worn on the body”);

Websters Third New Int’l Dictionary 1044 (1993) (“a device that amplifies the sound

reaching an auditor’s receptor organs”).

When the plain meaning of the regulation is clear, we need not inquire into the

regulatory history to determine its meaning. See, e.g., Roberto v. Dep’t of Navy, 440

F.3d 1341, 1350 (Fed. Cir. 2006). We pause, however, to note that Hall’s reliance on

the regulatory history is without merit in any event. In promulgating revisions to the

regulation at issue, the Department of Veterans Affairs (“VA”) noted that a commenter

was concerned that one table in the regulations was “based on the assumption of

2007-7052 3 hearing aids” and that performing hearing tests with the assistance of hearing aids

violated “the policy of determining impairment of body function without the use of any

prosthetic device.” 64 Fed. Reg. 25202, 25204 (May 11, 1999). The VA stated that it

was “unaware of any general policy which prohibits consideration of the effect of a

prosthetic device in determining the degree of impairment” and noted that both

corrected and uncorrected vision are evaluated under the rating schedule. Id. Hall

argues that the mention of prosthetic devices in the regulatory history indicates that a

“hearing aid” includes any prosthetic device for the ear. We disagree. The VA’s

statements relate to an alleged general policy against measuring impairment with

prosthetic devices, one that the VA found did not exist. The VA’s language suggests

that hearing aids are prosthetic devices, but does not support the converse, i.e., that all

prosthetic devices that affect hearing are “hearing aids.” Those that do so without

amplifying sound are not.

The meaning of the term “hearing aid” is unambiguous. We hold that the term

means “a device that amplifies sound to aid in hearing.” This interpretation appears to

be consistent with that adopted by the Veterans Court.

III. CONCLUSION

We have considered the remainder of Hall’s arguments and find them

unpersuasive. For the reasons explained above, we affirm.

2007-7052 4