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Board Failed to Consider Exceptional Symptoms for Hearing Loss and Tinnitus

Board Failed to Consider Exceptional Symptoms for Hearing Loss and Tinnitus

Summary

The Veteran served honorably in the United States Air Force from January 1963 to November 1965.  His military occupational specialty was administrative specialist, and he worked in an aircraft hangar along with the mechanics, his plywood- and he worked in a glass-enclosed work area about 50 feet from the aircraft.  Unlike the mechanics, he was not issued ear protection against the loud roars of the aircraft, so he used cotton in his ears to dampen the noise.  After service, he suffered from moderate bilateral high-frequency hearing loss and right-sided tinnitus.  He could not hear his wife, which aggravated her.  He also had trouble sustaining concentration because of his tinnitus, and he occasionally suffered from balance problems, including an episode with headaches.  Additionally, he could not follow instructions from a co-worker or management.

 

Board denied increased ratings for hearing loss and tinnitus

The Regional Office granted service connection for bilateral hearing loss and tinnitus, assigning zero and 10 percent ratings, respectively.  The Board of Veterans’ Appeals subsequently remanded the Veteran’s hearing loss and tinnitus claims to the Director of Compensation Service for extraschedular consideration.  The Director concluded, “the severity of the service-connected bilateral hearing loss and tinnitus do not present evidence of an exceptional or unusual disability picture, such as, marked interference with employment o[r] frequent periods of hospitalization” because “there is no evidence of an effect upon the Veteran’s average earning capacity.”  The Board then denied entitlement to a compensable rating for bilateral hearing loss on an extraschedular basis and entitlement to a rating in excess of 10 percent for tinnitus on an extraschedular basis.

 

CCK appeals to the Court

CCK successfully appealed to the Court the denial of increased ratings for the Veteran’s hearing loss and tinnitus on an extraschedular basis.  In its decision, the Board found that “the medical evidence indicates that the Veteran has hearing loss and is aggravated by ringing in his ears”; thus, “[h]is symptoms . . . are loss of hearing and ringing in his ears,” the “totality” of which his assigned schedular ratings “specifically contemplated.”

 

CAVC agrees with CCK’s arguments

CCK argued, and the Court agreed, that the Board overlooked a number of symptoms when it denied increased ratings for the Veteran’s hearing loss and tinnitus.  The Court stated, “The appellant has repeatedly described experiencing, social isolation . . . and that this has impaired occupational function and daily activities, severely negatively affecting his marriage. . . .  The appellant has also complained of balance problems associated with his hearing problems, yet the Board did not address this symptom anywhere in its decision.”  Additionally, the Court stated, “The Board, without explanation, removed the appellant’s repeated complaints of psychological problems associated with the ringing in his ears . . . when it found that his tinnitus was contemplated by the rating schedule.”  Accordingly, the Court vacated the Board’s decision and remanded the matters for readjudication.

Category: Court Wins

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