Board failed to explain extraschedular referral denial for bilateral hearing loss

Board failed to explain extraschedular referral denial for bilateral hearing loss

Summary

The Veteran served honorably on active duty in the United States Army from August of 1965 to August of 1967.  The Veteran was found entitled to service connection for his left ear hearing loss disability in January of  2007 and his right ear hearing loss in August of 2009.  VA based the Veteran’s noncompensable ratings on two VA examinations.  The Veteran perfected his appeal for an increased rating for bilateral hearing loss to the Board in December of 2008.

Board denies referral for extraschedular evaluation for bilateral hearing loss

In a November 2015 decision, the Board denied referral for extraschedular rating for bilateral hearing loss.  The Board found that referral was not warranted because all of the Veteran’s bilateral hearing loss symptoms were contemplated by his assigned noncompensable rating.  The Board made its decision despite the Veteran’s trouble working.  The Veteran worried about maintaining his job due to his symptoms.  His employees could not understand or carry out his instructions because his hearing loss caused him to speak too softly.  His employer had to hire an outside contractor because the Veteran’s hearing loss prevented him from diagnosing the problem when repairing machinery.  He could not hear or understand the instructions of his supervisors.

CCK appeals to the Court

CCK successfully appealed to the Court the denial of referral for extraschedular evaluation for his bilateral hearing loss.  In its decision, the Board relied on VA examinations to find that the rating criteria contemplated all of the Veteran’s hearing loss symptoms.  On that basis, the Board denied extraschedular referral.

CAVC agrees with CCK’s arguments

CCK argued, and the Court agreed, that the Board erred when it denied referral.  The Court found that the Board did not consider the fact that the Veteran lost confidence in his ability to do his job properly and had become anxious at his job as a result of his difficulty conveying information.  The Court set aside the Board’s decision and remanded the case for further proceedings.

To read the Court’s decision, click here. 

Category: Court Wins