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Court Wins

BVA erroneously denies extraschedular consideration of bilateral hearing loss and tinnitus

Michael Lostritto

February 9, 2018

Updated: June 20, 2024

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The Veteran served honorably in the United States Navy from 1971 until 1975.  He specialized as an aircraft mechanic.  This position exposed him to more than two years of excessive noise from jets despite the use of hearing protection.  After service he was granted service connection for tinnitus with a 10% rating, as well as bilateral hearing loss with a zero percent rating.  The Veteran argued that his hearing loss was more severe than the zero percent rating reflected.

Board denied increased rating for bilateral hearing loss

In June 2016, the Board denied a rating higher than zero percent for the Veteran’s hearing loss.  The Board asserted that the Veteran’s zero percent rating contemplated his hearing loss disability.  In addition, the Board found that the Veteran’s hearing loss symptoms were adequately encompassed by the rating criteria.  Therefore, the Board denied him referral for consideration of an extraschedular rating.

CCK appeals to the Court

CCK successfully appealed to the Court the denial of an increased rating for the Veteran’s service-connected hearing loss.

CAVC agrees with CCK’s arguments

CCK argued, and the Court agreed, that the Board overlooked evidence suggesting that the Veteran suffered symptoms not contemplated by the rating criteria for hearing loss.  Specifically, the Board overlooked record evidence suggesting that the Veteran’s tinnitus may be the result of his hearing loss.  Furthermore, the Veteran cited that his tinnitus impacts his sleep negatively and  has made him reluctant to drive.  If these symptoms of tinnitus are manifestations of bilateral hearing loss, the symptoms cited are beyond contemplation of the rating criteria for hearing loss.

Therefore, the Court set aside the Board’s decision and remanded the issue of extraschedular consideration.  On remand, the Board must discuss evidence of the combined effects of hearing loss and tinnitus and readjudicate the Veteran’s claim.

To read a copy of the Court’s decision, click here. 

About the Author

Michael joined CCK in September of 2016 as an Attorney, was named Supervising Attorney in 2021, and now serves as a Managing Attorney. His practice focuses on the representation of disabled veterans before the Department of Veterans Affairs and the United States Court of Appeals for Veterans Claims.

See more about Michael