Denial of extraschedular referral for bilateral hearing loss disability rested on provision of inadequate reasons or bases

Denial of extraschedular referral for bilateral hearing loss disability rested on provision of inadequate reasons or bases

Summary

The Veteran served on active duty in the Navy from 1958 to 1960.  VA granted service connection for his bilateral hearing loss disability at 0% effective February 2009, when he filed his claim. The Veteran filed an increased rating claim in June 2010.  In his appeal, he noted his inability to converse in public because he could not understand what people were saying.  The RO granted the Veteran an increased rating of 10%, but no higher, effective January 4, 2011.  This date was that of his examination revealing results warranting the increase for his bilateral hearing loss.  The Veteran appealed, and in March 2014 the Board issued a decision.  The Board remanded the Veteran’s claim for a new examination.  The exam took place the following month.

In July of 2015, the Board issued a decision which granted the Veteran entitlement to a rating of 30%, but no higher, for his bilateral hearing loss disability prior to January 4, 2011.  It also granted entitlement to a 40% evaluation from that date until December 22, 2011, and an evaluation of 50% as of that date.  The Veteran appealed the Board decision to this Court.  The Court granted a joint motion for partial remand in March of 2016 because the Board’s decision failed to analyze whether extraschedular referral was warranted.

Board denied extraschedular referral in May 2016 decision

The Board found that extraschedular consideration was not warranted in a May 2016 decision.  It “considered the Veteran’s reported difficulties” but it concluded that it did not find the Veteran’s symptoms warranted extraschedular referral.  The Board reasoned that, while the rating schedule didn’t contemplate specifically all of the Veteran’s symptoms, it did contemplate some.  It further noted that “such things as difficulty understanding speech is [sic] contemplated by the rating criteria as evidenced by the required administration of a speech discrimination test[.]”  However, the Board failed to adequately address the Veteran’s symptoms for which the rating criteria did not compensate.

CCK appeals to the Court

CCK successfully appealed to the Court the denial of extraschedular referral for the Veteran’s bilateral hearing loss disability.  In its decision, the Board provided inadequate reasons or bases for finding that the Veteran’s symptomatology was contemplated by his assigned schedular rating.

CAVC agrees with CCK’s arguments

CCK argued, and the Court agreed, that the Board provided an inadequate statement of reasons or bases in its decision.  Specifically, the Board failed to discuss the Veteran’s symptoms of lonelieness, anxiety, humiliation, and social isolation that are related to his bilateral hearing loss, but not contemplated by the rating criteria. On remand, the Board must readjudicate the Veteran’s entitlement to extraschedular referral.

Category: Court Wins