Court agrees with CCK that the Board committed error
The Veteran served honorably in the United States Marine Corps from 1968 to 1972. He was exposed to noise in service and VA later awarded service connection for bilateral hearing loss and tinnitus.
Due to his hearing loss and tinnitus disabilities, the Veteran experienced difficulty concentrating, frustration, and anger when he could not effectively communicate with others. This eventually contributed to his leaving his job as a mechanic. Based on these effects, he filed a claim for an increased rating for hearing loss in 2008. VA denied his claim based on objective audiometric test results and the Veteran did not appeal this decision. He filed another claim for a compensable rating in 2012, which the VA granted, awarding a 10% rating. The Veteran appealed this decision to the Board, asking for 20%. While his appeal was pending, he also filed a claim for service connection for depression, secondary to his hearing loss and tinnitus.
Board denied a higher rating for bilateral hearing loss
The Board denied a higher rating for bilateral hearing loss in January of 2016. It relied on the objective test results to deny a higher rating under the rating schedule. It also denied extraschedular referral because it found the Veteran’s symptoms of hearing loss were adequately contemplated by his assigned rating. The Board reasoned that even if the Veteran’s symptoms were not contemplated by the rating schedule, the Veteran’s hearing loss did not result in marked interference with employment.
CCK appeals to Court and the Court agrees
CCK successfully appealed the Board’s decision to the Court of Appeals for Veterans Claims. The Court agreed with CCK that the Board failed to provide adequate reasons or bases for denying referral for extraschedular consideration. The Court held that the Veteran’s symptoms of anger, difficulty concentrating, and social isolation were not contemplated by the rating schedule. It also found that the Board failed to offer any reasoning for how it determined that the Veteran’s disability picture did not result in marked interference with employment. This was prejudicial in light of evidence that the Veteran’s difficulty communicating contributed to him leaving his job. Finally, the Court agreed that the Board erred in failing to consider the collective effect of the Veteran’s hearing loss, tinnitus, and depression, and determine whether those individual disabilities result in negative compounding effects.
Category: Court Wins