Board wrongly denied referral for extraschedular TDIU, higher rating for sensorineural hearing loss

CCK Law: Our Vital Role in Veterans Law

Summary

The Veteran served in the United States Army from May 1970 until June 1973.  The Army awarded him the National Defense Service Medal and the Safety DVR Badge. While in service, exposure to rifle ranges, tanks, and howitzers during training exercises damaged the Veteran’s hearing.  He later received a diagnosis of bilateral sensorineural hearing loss due to acoustic trauma.  Due to his hearing loss, the Veteran experienced difficulty communicating, which negatively affected his ability to work.  As a bus driver, he could hear neither his dispatcher’s instructions nor his passengers’ requests.  He eventually quit his job due to these difficulties.

The VA granted service connection for bilateral hearing loss in 2012.  However, they only assigned a non-compensable rating.  The Veteran appealed this decision to the Board.

VA denies the Veteran a higher rating for bilateral sensorineural hearing loss

The Board denied a higher rating for bilateral hearing loss on both a scheduler or an extraschedular basis.  It reasoned that schedular standards adequately contemplated the Veteran’s sensorineural hearing loss.  It also concluded that the Veteran did not qualify for referral of entitlement to TDIU.  Specifically, the Board stated “it has not been shown that gainful employment is precluded due to the Veteran’s hearing loss.”  In addition, the Board relied on the fact that the Veteran had not specifically alleged entitlement to TDIU.

With CCK’s help, the Veteran appealed the Board decision to the Court of Appeals for Veterans claims.

CCK appeals to Court; CAVC agrees with CCK’s arguments

CCK argued, and the Court agreed, that the Board’s decision regarding TDIU was inadequate.  First, the Court found that the Board improperly relied on the fact that the Veteran did not specifically state that he was unable to secure substantially gainful employment.  It held that the Board shirked its responsibility to independently review the record to assess whether the Veteran was capable of the physical and mental acts required for employment.  It also found that the Board’s decision was cursory.  Specifically, it did not adequately consider, develop, and provide reasons or bases for its determination.  The Court vacated the Board’s decision and remanded the Veteran’s claim for further adjudication.