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Board’s denial to refer non-compensable rating for extraschedular consideration contained legal error

Board’s denial to refer non-compensable rating for extraschedular consideration contained legal error

Summary

Mr. Eric Holmes served honorably in the United States Army from July 1977 to August 1999.  The Regional Office granted service connection for his bilateral hearing loss at a non-compensable level in May of 2000.  In March of 2005, the Veteran filed an increased rating claim for his hearing loss.  Subsequently in April of 2010, the RO continued the Veteran’s non-compensable rating.  The RO again continued the Veteran’s non-compensable rating in a February 2012 decision.  The Veteran filed a timely appeal that same month and eventually perfected his appeal to the Board.

Board finds all symptoms of Veteran’s hearing loss contemplated by non-compensable rating

The Board denied the Veteran referral for extraschedular consideration because it decided that all of the Veteran’s symptoms were contemplated by the rating criteria.  In the Board’s opinion, the Veteran did not describe any side effects from his hearing loss that would make his case exceptional or unusual.  Additionally, the Board found that the Veteran did not have marked interference with employment.  Thus, the Board denied referral.

CCK appeals to the Court

CCK successfully appealed to the Court the denial of extraschedular referral for the Veteran’s bilateral hearing loss.

CAVC agrees with CCK’s arguments

CCK argued, and the Court agreed, that the Board provided an inadequate statement of reasons or bases as to why the Veteran’s hearing loss did not satisfy the first and or second element necessary for referral.  The Veteran stated that he had tenderness in his ears. The Court decided that the Board completely failed to mention the Veteran’s reports of tenderness in its extraschedular analysis.  Since that symptom is not contemplated by the hearing loss rating criteria, the Board’s failure to explain why that symptom did not warrant referral was prejudicial.

CCK also argued, and the Court agreed, that the Board provided an inadequate statement of reasons or bases as to why the Veteran’s hearing loss disability did not meet the second element demonstrating that referral was required.  The Court determined that a medical examination report noted that the Veteran’s hearing loss disability impacted the Veteran’s ability to work.  The Board erred in not considering that finding before denying referral.  The Court set aside and remanded the Board’s decision for a new decision consistent with the Court’s decision.

To read the Court’s decision, click here.  

Category: Veterans Law

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