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BVA errs in denial of a higher rating for bilateral hearing loss on an extraschedular basis

BVA errs in denial of a higher rating for bilateral hearing loss on an extraschedular basis

Summary

The Veteran served in the U.S. Army from October 1961 to January 1984.  In September 2006, he filed a VA disability compensation claim for bilateral hearing loss.  The Regional Office granted the Veteran’s claim and assigned a noncompensable rating.  The Veteran timely disagreed with the rating decision and appealed to the Board.  In March 2010, he attended a VA examination, and reported a “plugged” sensation in both ears, nausea, and dizziness.  He underwent another VA audiological examination in January 2015, which revealed itching, dizziness, and staggering.  In September 2016, the Board denied the Veteran an initial compensable rating.  It also determined that the Veteran did not qualify for a higher rating on an extraschedular basis.

Board denied an initial compensable rating for bilateral hearing loss on an extraschedular basis

The Board determined the rating criteria addressed symptoms associated with the Veteran’s bilateral hearing loss.  It also determined that the medical evidence failed to show anything unique or unusual about the Veteran’s bilateral hearing loss.  The Board noted that the rating assigned addressed the Veteran’s main complaint of reduced hearing ability.  Therefore, it argued that his condition did not warrant a higher rating on an extraschedular basis.

CCK appeals to the Court

CCK successfully appealed to the Court the denial of referral for extraschedular consideration for a compensable rating for bilateral hearing loss.  In its decision, the Board erred when it failed to provide an adequate statement of reasons or bases when it denied referral for extraschedular consideration.

CAVC agrees with CCK’s arguments

CCK argued, and the Court agreed, that the Board erred when it failed to discuss the Veteran’s documented dizziness.  Because Doucette explicitly lists “dizziness” as a symptom of hearing loss that is not contemplated by the schedular criteria, the Board’s statement of reasons or bases is inadequate.  Additionally, the Board did not discuss the Veteran’s other symptoms, such as his plugged ears and nausea, that are potentially not contemplated by the schedular rating criteria.  The Court vacated the Board’s decision and remanded the matter ordered the Board to provide an adequate statement of reasons and bases.

To read a copy of the Court’s decision, click here. 

Category: Court Wins

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