Board denies higher rating for Veteran’s hearing disability, fails to discuss combined effects of all conditions

Board denies higher rating for Veteran’s hearing disability, fails to discuss combined effects of all conditions

Summary

The Veteran served honorably in the United States Army from May 1979 to August 1979, December 1981 to November 1987, and August 2004 to September 2008.  While in Iraq, he was a tank master gunner.  Frequent exposure to incoming rockets, mortars, IED explosions, and machine guns significantly impacted his hearing.

After service, he began having difficulty understanding speech, especially in background noise.  A VA examiner diagnosed him with bilateral high frequency sensorineural hearing loss.  The examiner noted that the Veteran had problems understanding others.  The Veteran also reported that his wife and daughter became angry when he did not understand or hear them.  The constant tinnitus seemed louder at night when it was quiet, and he was trying to sleep.  In October 2008, the Veteran filed a claim for service connection and compensation for his bilateral hearing loss.  The following year, he was granted service connection for tinnitus with a 10% evaluation, and also for bilateral hearing loss with a noncompensable rating.  He filed a notice of disagreement with this decision, and perfected his appeal to the Board.  In January 2014, the Board issued a decision and remanded the bilateral hearing loss claim for additional development.

Board denies increased rating for hearing disability

In August 2016, the Board denied the Veteran a compensable rating for his bilateral hearing loss.  It concluded that the schedular rating adequately contemplated the Veteran’s bilateral hearing loss symptoms.  With CCK’s help, the Veteran appealed this decision to Court.

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

CCK argued, and the Court agreed, that the Board decision failed to discuss the combined effects of the Veteran’s disabilities.  Specifically, the Court found that the Board did not address whether a referral for extraschedular consideration was warranted based on the collective effect of the Veteran’s service-connected disabilities, which included hearing loss, tinnitus, and PTSD.  The Board’s failure was problematic because the record included evidence that the combined effect of the Veteran’s service-connected disabilities caused problems with cognition or understanding, exceptionally severe difficulties hearing and communicating with others, difficulty sleeping, and increased irritation with others when he cannot hear or understand.  Additionally, the Court found that the Board erred in failing to address whether the hearing loss rating criteria contemplated the Veteran’s friction with family members caused by his hearing disability.  The Court instructed the Board to discuss this on remand.

Category: Court Wins