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Court Wins

Court Remands Board Decision Based on Failure to Maximize Benefits

Bradley Hennings

January 11, 2022

Updated: November 20, 2023


Summary of the Case

The Veteran served on active duty in the United States Army from January 1971 to October 1972 during the Vietnam Era.

The Veteran filed a disability compensation claim for bilateral hearing loss in June 2018, after being forced to retire from work early due to his condition.  In August 2018, the United States Department of Veterans Affairs (VA) granted the Veteran service connection for bilateral hearing loss at a 50 percent rate and tinnitus at a 10 percent rate, with a combined disability rating of 60 percent.  In November 2018, VA also granted service connection for chloracne at a noncompensable 0 percent rate.

In June 2019, the Veteran filed two separate Notices of Disagreement, seeking increased ratings for bilateral hearing loss and chloracne.  The case reached the Board of Veterans’ Appeals (Board) on April 30, 2020.

The Board denied the Veteran an increased rating for bilateral hearing loss based on audiological evaluation results and remanded his claim for chloracne.  The Board also remanded entitlement to Total Disability based on Individual Unemployability (TDIU).

The Veteran appealed the April 2020 Board decision to the United States Court of Appeals for Veterans Claims (Court or CAVC).

CCK Argues Board Failure in Duty to Maximize Schedular Benefits

On August 6, 2021, Chisholm Chisholm & Kilpatrick LTD represented the Veteran before the Court.  CCK argued that the Board had failed in its duty to maximize benefits for the Veteran.

In a September 2018 lay statement, the Veteran had stated that he suffers from anxiety and chronic sleep impairment due to his bilateral hearing loss.  Although the Board acknowledged the Veteran’s statement and found it credible, it neglected to address the potential secondary conditions when deciding the appeal.

According to CCK, the Board should have remanded the claim and asked VA to schedule an exam to assess the additional conditions (i.e., anxiety and chronic sleep impairment).  The Board failed in its duty to “properly exhaust all schedular benefits” reasonably raised by the claimant before considering extraschedular benefits.  CCK also argued that the Board did not explain why it recognized TDIU as the only alternative rating method.

Court Agrees with CCK, Vacates Board Decision

The Court agreed with CCK’s assertion that the Board failed to consider all possible schedular rating alternatives for conditions stemming from the Veteran’s bilateral hearing loss.  Based on this, the Court vacated the April 2020 Board decision in its entirety and remanded the case for further proceedings.

For more details, please review the full CAVC decision.

About the Author

Bio photo of Bradley Hennings

Bradley Hennings joined Chisholm Chisholm & Kilpatrick as an attorney in January 2018 and currently serves as a Partner in the firm. His practice focuses on the U.S. Department of Veterans Affairs (VA) and the U.S. Court of Appeals for Veterans Claims.

See more about Bradley