Board failed to consider the combined effect of bilateral hearing loss and tinnitus
The Veteran served honorably in the United States Army from 1954 to 1956. He served as a light weapons infantryman instructor, and earned the National Defense Service Medal and the Good Conduct Medal. After service, he was granted benefits for bilateral hearing loss and tinnitus due to considerable traumatic noise exposure. However, he was assigned a noncompensable 0% rating for hearing loss. The Veteran’s hearing loss made it difficult to communicate, understand speech in the presence of background noise, and created difficulty hearing soft sounds. His tinnitus rang in his ears constantly, and worsened in the presence of loud noises. The Veteran sought an increased rating for both disabilities in 2011, but was denied by the regional office.
Board denied increased rating for service-connected hearing loss
In April of 2016, the Board denied the Veteran an increased rating for service-connected bilateral hearing loss on a schedular, and extraschedular, basis. The Board found no additional impairment attributed to the Veteran’s service-connected bilateral hearing loss. In other words, the Board determined that the Veteran’s disability picture was not exceptional as to require extraschedular consideration.
CCK appeals to the Court
CCK successfully appealed to the Court the Board’s denial of an increased rating for the Veteran’s service-connected bilateral hearing loss, specifically on an extraschedular basis.
Board failed to consider combined effects of hearing loss and tinnitus
CCK argued that the Board failed to provide an adequate statement of reasons or bases in its decision. Specifically, it did not adequately explain its denial of referral to the Director of Compensation for extraschedular consideration based on the combined effect of his service-connected bilateral hearing loss and tinnitus. The Court noted that the Veteran’s hearing loss impacts his ability to hear soft noises while his tinnitus worsens during loud sounds. The Court noted that his “service-connected hearing disabilities appear to be working against each other. . . The Board, in error, failed to address the interplay of the appellant’s service-connected hearing disabilities.” Accordingly, the Court remanded the Veteran’s appeal back to the Board. On remand, the Board must adequately determine whether referral for extraschedular consideration was warranted.
Category: Court Wins