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Denial of extraschedular consideration for service-connected hearing loss relied on inadequate discussion

Denial of extraschedular consideration for service-connected hearing loss relied on inadequate discussion


The Veteran served honorably in the United States Navy from 1971 until 1975.  He specialized as an aircraft mechanic.  His job exposed him to more than two years of excessive noise from jets despite the use of hearing protection.  After service, the Regional Office granted service connection for tinnitus with a 10% rating.  It also granted him service connection for bilateral hearing loss with a zero percent rating.  The Veteran argued that his hearing loss was more severe than the zero percent rating reflected.

Board denied increased rating for service-connected hearing loss

In June 2016, the Board denied a rating higher than zero percent for the Veteran’s hearing loss.  The same decision also denied  referral for consideration of an extraschedular rating.  The Board found that the Veteran’s zero percent rating contemplated his hearing loss disability.

It also determined that “there are no additional service-connected disabilities that have not been attributed to a single service-connected condition.”  Therefore, as  no disability existed due to the combined effects of multiple conditions, extraschedular consideration was not warranted.

CCK appeals to the Court and CAVC agrees with CCK’s arguments

CCK argued, and the Court agreed, that the Board overlooked evidence suggesting hearing loss symptoms that the rating criteria for hearing loss did not contemplate, including tinnitus.  Specifically, the Board ignored evidence that the Veteran’s  tinnitus negatively affects his sleep and makes him reluctant to drive.  It also overlooked an examination in which an audiologist suggested that tinnitus may be the result of hearing loss.  The Court also agreed that the Board provided an insufficient discussion of the Veteran’s combined disabilities when it declined referral for extraschedular consideration.

Finally, the Court agreed that the Board employed the wrong legal standard in evaluating the combined effects of his disability.  There is no requirement that the service-connected disabilities combine to generate a new service-connected disability.  Rather, the requirement is to consider the “negative effects that each individual disability may have on the Veteran’s other disabilities.”  Accordingly, the Court set aside the Board’s decision and remanded the issue of extraschedular consideration.  On remand, the Board must discuss evidence of the combined effects of hearing loss and tinnitus and readjudicate the Veteran’s claim.

Category: Court Wins

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