Board failed to consider Veteran’s vertigo, dizziness in denial of extraschedular consideration

Board failed to consider Veteran’s vertigo, dizziness in denial of extraschedular consideration

The Veteran served on active duty in the United States Marine Corps from February of 1956 to March of 1959.  VA granted service connection for his bilateral hearing loss in February of 2005, effective November of 2004.  By April of 2008, the Veteran was still receiving a noncompensable rating for his bilateral hearing loss and a 10% rating for tinnitus.  VA denied his claim for an increased rating, and the Veteran timely appealed.  During the time on appeal, the Veteran’s hearing loss caused vertigo, dizziness, and a “floating feeling.”  In June of 2016, the Board denied the Veteran an initial rating for bilateral hearing loss on an extraschedular basis.

Board denied referral for extraschedular consideration of the Veteran’s bilateral hearing loss

In June of 2016, the Board denied referral for extraschedular consideration of the Veteran’s bilateral hearing loss.  In its decision, the Board determined that the rating criteria contemplated the Veteran’s functional impairment due to hearing loss.  The Board also found that the combined impact of the Veteran’s service-connected disabilities did not warrant extraschedular referral because the rating criteria contemplate each of the Veteran’s disabilities.

CCK appeals to the Court

CCK successfully appealed to the Court the denial of referral of extraschedular consideration for the Veteran’s bilateral hearing loss.  In its decision, the Board failed to adequately address the full functional effects of the Veteran’s hearing loss.  In addition, the Board inadequately considered the collective impact of the Veteran’s hearing loss and tinnitus.

CAVC agrees with CCK’s arguments

CCK argued, and the Court agreed, that the Board failed to consider the Veteran’s dizziness, vertigo and “floating feeling.”  The Court rejected the Secretary’s argument that the Board’s errors were harmless because it was unclear if the Veteran’s symptoms were linked to hearing loss.  It held that the Board was required to determine if the Veteran’s symptoms were related to hearing loss.  It also held that the Board should determine if a medical opinion is necessary to do so.

Additionally, the Court agreed that the Board failed to adequately access the combined impact of the Vet’s service-connected disabilities.  The Court held that the Board may not simply recite the symptoms of each service-connected disability, state that the diagnostic code under which each disability is rated contemplates those symptoms, and therefore conclude that there is no collective impact.  Accordingly, the Court remanded the Board’s June 2016 decision.  The Board must do further development, if necessary, and readjudicate.

Category: Court Wins