Board denied referral for extraschedular rating for hearing loss

Board denied referral for extraschedular rating for hearing loss
Summary of the Case

The Veteran served honorably in the United States Army from 1964 to 1967. While serving in Vietnam, he was exposed to noise from mortar explosions and developed gradual hearing loss. After service, he worked as a police officer and a security guard, but his hearing loss interfered with his ability to communicate at work and in his daily life. He also experienced dizziness, vertigo, and nausea.

VA originally denied service connection for bilateral hearing loss in 1990. Although the Veteran appealed that decision, his claim remained pending for over 18 years. In October 2008, the Board finally granted service connection for bilateral hearing loss, but VA only awarded a non-compensable rating for the time period prior to 2014, and a 20% rating from 2014 forward. The Veteran again appealed VA’s decision to the Board.

VA denies the Veteran extraschedular referral for bilateral hearing loss

The Board denied the Veteran entitlement to a higher rating for his bilateral hearing loss. It concluded that the Veteran’s staged rating adequately contemplated his level of impairment because he only experienced difficulty hearing.

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

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

CCK argued, and the Court agreed, that the Board erred when it ignored favorable evidence of symptoms and effects that may warrant an extraschedular rating. Contrary to the Board’s conclusion, the Veteran’s bilateral hearing loss did not only cause “difficulty hearing,” but he also experienced symptoms of vertigo, nausea, dizziness, and social isolation due to difficulties communicating.

CCK argued that these symptoms are precisely the type that the law requires the Board to discuss in analyzing whether an extraschedular rating is warranted.  The Court agreed.  It found that the record suggested a relationship between the Veteran’s hearing loss and his dizziness with vertigo, and that“there was no indication” that the VA investigated this possible connection.  The Court vacated the Board’s decision and remanded the Veteran’s claim for further adjudication.

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

Category: Court Wins