NOTE: This disposition is nonprecedential.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NOTE: This disposition is nonprecedential.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
JAMES M. HALL,
Claimant-Appellant,
v.
GORDON H. MANSFIELD, Acting Secretary of Veterans Affairs,
Respondent-Appellee.
__________________________
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
Hall v. Mansfield
Combined Opinion