Denial of extraschedular rating for bilateral hearing loss failed to recognize all symptoms

Denial of extraschedular rating for bilateral hearing loss failed to recognize all symptoms

Summary

The Veteran served on active duty in the United States Army from 1975 to 1979 and from 1990 to 1991.  He was granted service connection for left ear hearing loss at 0%, back to the date of his original claim in September of 1995.  In June of 2003, he filed a new claim seeking an increased rating for his left ear hearing loss and service connection for right ear hearing loss.  In January of 2004, the Veteran was denied an increased rating for his left ear and was also denied service connection for his right ear.  In February 2004 he filed an appeal seeking service connection for his right ear hearing loss, which was also denied.  The Veteran then appealed his case to the Board of Veterans Appeals.

Board denies increased rating for bilateral hearing loss

The Veteran was eventually granted service connection for bilateral hearing loss effective back to June of 2003 by the Board.  His hearing loss was initially given a 0% rating, with the Veteran receiving no monthly compensation.  He filed an appeal in October of 2010 seeking entitlement to an increased rating.  The VA denied the increased rating and he appealed these issues to the Board in November of 2012.  In April of 2016, the Board denied an increased rating for the Veteran’s hearing loss.  The Board maintained that the results of his VA hearing examinations did not reveal hearing loss severe enough to warrant VA monthly disability compensation.  The Board concluded that all the functional effects of the Veteran’s hearing loss were considered in the VA exam and no special consideration had to be given to his claim.

CCK appeals to the Court

CCK successfully appealed to the Court the Board decision denying the Veteran entitlement to an increased rating for bilateral hearing loss.  The Board decision found that his claim for benefits should not be considered on an extraschedular basis.  In its decision, the Board stated that all of the functional effects of the Veteran’s hearing loss were reflected accurately by his 0%t rating, and therefore the claim did not need to be given extraschedular consideration.

CAVC finds the Board erred

CCK argued, and the Court agreed, that the Board erred when it concluded that all of the functional effects of the Veteran’s bilateral hearing loss were contemplated by his non-compensable rating.  The Court ruled that the Board erred in failing to discuss whether the Veteran’s abnormal hearing reflexes were contemplated by his 0% rating.  The Court set aside the Board’s decision and remanded the case back to the Board for further development.  The Board must discuss the Veteran’s abnormal hearing reflexes in its  next decision.

Category: Court Wins