Veteranclaims’s Blog

August 6, 2017

Single Judge Application; Doucette, 28 Vet.App. at 369, 371; Dizziness; Ear Pain; Vertigo; Social Isolation; and Recurrent Loss of Balance;

Excerpt from decision below:

“In Doucette, the Court clarified the proper analysis for determining whether referral for extraschedular consideration based on hearing loss is warranted. The Court held that “the rating criteria for hearing loss contemplate the functional effects of decreased hearing and difficulty understanding speech in an everyday work environment”—which “are precisely the effects that VA’s audiometric tests are designed to measure”—and that “when a claimant’s hearing loss results
in an inability to hear or understand speech or to hear other sounds in various contexts, those effects are contemplated by the schedular rating criteria.” Doucette, 28 Vet.App. at 369. Accordingly, the Court determined that the evidence cited by Mr. Doucette—difficulty understanding speech in noisy settings, embarrassment at having to ask others to repeat themselves, trouble locating the
origins of sounds, inability to hear the television or to use the telephone—were not exceptional or unusual symptoms but simply manifestations of hearing loss and its resultant effect and that the
2 “[E]xceptional patterns of hearing loss” are addressed in 38 C.F.R. § 4.86, which nevertheless still uses numeric designations in relevant tables to determine the extent of hearing loss. 38 C.F.R. § 4.86 (2016). Diseases of
the ear are addressed in a separate provision. 38 C.F.R. § 4.87 (2016).
5
Board did not err in finding referral for extraschedular consideration unwarranted in that case. Id. at 371-72. To hold otherwise, the Court reasoned, would be tantamount to requiring an extraschedular analysis in every hearing loss case, a result that would mean “the average loss of earning capacity due to hearing loss could no longer be considered average.” Id. at 371. However, the Court carefully noted that it was unable to conclude that the rating schedule contemplated functional effects of hearing loss other than difficulty hearing or understanding speech or sounds. Id. at 369, 371 (citing, as possible examples, dizziness, ear pain, vertigo, social isolation, and
recurrent loss of balance).

===================

Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 15-4349
LOUIS W. BROWN, APPELLANT,
V.
DAVID J. SHULKIN, M.D.,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before BARTLEY, Judge.
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a), this action may not be cited as precedent.
BARTLEY, Judge: Veteran Louis W. Brown appeals through counsel a September 24, 2015, Board of Veterans’ Appeals (Board) decision denying entitlement to an initial compensable evaluation for service-connected bilateral hearing loss prior to January 28, 2015, to include entitlement to referral for consideration of an extraschedular evaluation. Record (R.) at 2-10.1
Single-judge disposition is appropriate in this case. See Frankel v. Derwinski, 1 Vet.App. 23, 25-26 (1990). This appeal is timely and the Court has jurisdiction to review the Board decision pursuant to 38 U.S.C. §§ 7252(a) and 7266(a). For the reasons that follow, the Court will affirm the portion of the September 24, 2015, Board decision denying extraschedular referral for bilateral hearing loss.
1 Mr. Brown has not challenged the Board’s denial of an initial compensable schedular evaluation for bilateral
hearing loss prior to January 28, 2015, or the Board’s denial of a schedular evaluation higher than 10%, for the period
thereafter, to include entitlement to extraschedular referral. See Appellant’s Brief (Br) at 1 Therefore, the appeal as to
those issues will be dismissed. See Pederson v. McDonald, 27 Vet.App. 276, 281-86 (2015) (en banc) (declining to
review the merits of an issue not argued on appeal and dismissing that portion of the appeal); Cacciola v. Gibson,
27Vet.App. 45, 48 (2014) (same). The Board granted an effective date of January 28, 2015, for a 10% evaluation for
service-connected hearing loss. R. at 8-9. Inasmuch as this finding is favorable to the veteran, the Court will not disturb
it. See Medrano v. Nicholson, 21 Vet.App. 165, 170 (2007) (“The Court is not permitted to reverse findings of fact
favorable to a claimant made by the Board pursuant to its statutory authority.”).
2
I. FACTS
Mr. Brown served on active duty in the U.S. Air Force from August 1950 to July 1954.
R. at 355. After service, he worked as a civilian pilot and flight instructor. R. at 409.
In March 2005, the veteran underwent a VA audiology examination and reported gradual
hearing loss, worse in his left ear, and expressed concern that hearing loss may impact his job
because he had an upcoming pilot’s physical and feared hearing loss would “ground him.” R. at
471. The examiner diagnosed mild to moderate sensorineural hearing loss in the left ear and mild
hearing loss in the right ear, but opined that he did not meet eligibility requirements for a hearing
aid fitting. Id.
In June 2011, Mr. Brown filed a claim for service connection for bilateral hearing loss. R.
at 326. He underwent a VA audiology examination in August 2011 and the examiner diagnosed
bilateral sensorineural hearing loss in both ears and opined that “it is at least as likely as not” that
in-service noise exposure caused his hearing loss. R.403-13. The examiner noted that the veteran’s
hearing loss impacted the ordinary conditions of daily life, including the ability to work. R. at 410.
The veteran reported that he must ask people to repeat themselves. Id.
In September 2011, a VA regional office (RO) granted service connection for right ear
hearing loss, assigning a noncompensable evaluation effective June 30, 2011, but denied service
connection for left ear hearing loss. R. at 268. After additional development, in February 2013 the
RO granted service connection for bilateral hearing loss, assigning a noncompensable evaluation.
R. at 236-38. The veteran timely disagreed with the assigned evaluation and ultimately appealed
to the Board. R. at 256-59; 204-06.
During a January 2015 Board hearing, Mr. Brown and his son testified that his hearing loss
had worsened and it was difficult to watch television and communicate with people; in fact, he had
trouble hearing the Board member during the hearing. R. at 383. The veteran stated his hearing
aids help with background noise but to hear during conversations he had to look directly at the
person and have them speak loudly. R. at 385. The veteran’s son stated that the veteran does not
hear half of what the son says and the son has to constantly repeat himself. R. at 386.
After a February 2015 Board remand, R. at 120-29, Mr. Brown underwent a VA audiology
examination in June 2015. R. at 47-50. The examiner noted that the veteran’s sensorineural hearing
loss had worsened and that it impacted ordinary conditions of daily life, including his ability to
3
work. R. at 49. The veteran reported that he understands speech better with his hearing aids. Id.
That same month, the RO granted a 10% evaluation for bilateral hearing loss, effective June 9,
2015. R. at 42-46.
In September 2015, the Board issued the decision on appeal. R. at 2-10. The Board granted
an effective date of January 28, 2015, for the 10% evaluation for bilateral hearing loss, but no
earlier. The Board also denied extraschedular referral. R. at 10. This appeal followed.
II. ANALYSIS
Mr. Brown argues that the Board erred when it denied referral for consideration of an
extraschedular evaluation for bilateral hearing loss because it failed to adequately account for the
functional effects and resulting severity of his hearing loss in violation of Martinak v. Nicholson,
21 Vet.App. 447 (2007), and Thun v. Peake, 22 Vet.App. 111, 115 (2008), aff’d sub nom. Thun v.
Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). Appellant’s Brief (Br.) at 4-10. The Secretary disputes
this contention and urges the Court to affirm the Board decision on appeal. Secretary’s Br. at 5-14.
VA’s schedule of disability ratings is based on the average impairment in earning capacity
in civil occupations from specific injuries or combinations of injuries. 38 U.S.C. § 1155; 38 C.F.R.
§ 3.321(a) (2016). However, “[t]o accord justice” in the “exceptional case where the schedular
evaluations are found to be inadequate,” the VA Under Secretary for Benefits or the Compensation
Service Director is authorized to approve an “extra-schedular evaluation for impairments that are
due to service-connected disability or disabilities.” 38 C.F.R. § 3.321(b)(1). “The governing norm
in these exceptional cases is: A finding that the case presents such an exceptional or unusual
disability picture with such related factors as marked interference with employment or frequent
periods of hospitalization as to render impractical the application of the regular schedular
standards.” Id.
The Court has explained the three-step framework for determining entitlement to referral
for extraschedular consideration. Thun, 22 Vet.App. at 115. First, the Board must determine
whether the evidence “presents such an exceptional disability picture that the available schedular
evaluations for that service-connected disability are inadequate.” Id. This obliges the Board to
compare “the level of severity and symptomatology of the claimant’s service-connected disability
with the established criteria found in the rating schedule for that disability.” Id When this
4
requirement is satisfied, the Board must determine whether the veteran’s exceptional disability
picture exhibits other related factors such as “‘marked interference with employment’ or ‘frequent
periods of hospitalization.'” Id. at 116 (quoting 38 C.F.R. § 3.321(b)(1)). “[T]he first Thun element
compares a claimant’s symptoms to the rating criteria, while the second addresses the resulting
effects of those symptoms.” Yancy v. McDonald, 27 Vet.App. 484, 494 (2016). If both these
inquiries are answered in the affirmative, the Board must refer the matter to the Under Secretary
for Benefits or the Compensation Service Director for the third inquiry, i.e., a determination of
whether, “[t]o accord justice,” the veteran’s disability picture requires the assignment of an
extraschedular evaluation. Thun, 22 Vet.App. at 111.
The evaluation of hearing loss is addressed in 38 C.F.R. § 4.85 and Tables VI through VII.
These provisions, unlike those for most disabilities addressed in the general schedule for rating
disabilities, do not set forth specific symptoms or functional impairments corresponding to specific
evaluations. Doucette v. Shulkin, 28 Vet.App. 366, 368 (2017). Rather, “disability ratings for
hearing impairment are derived by a mechanical application of the rating schedule to the numeric
designations assigned after audiometric evaluations are rendered.”2 Lendenmann v. Principi,
3 Vet.App. 345, 349 (1992).
In Doucette, the Court clarified the proper analysis for determining whether referral for
extraschedular consideration based on hearing loss is warranted. The Court held that “the rating
criteria for hearing loss contemplate the functional effects of decreased hearing and difficulty
understanding speech in an everyday work environment”—which “are precisely the effects that
VA’s audiometric tests are designed to measure”—and that “when a claimant’s hearing loss results
in an inability to hear or understand speech or to hear other sounds in various contexts, those effects
are contemplated by the schedular rating criteria.” Doucette, 28 Vet.App. at 369. Accordingly,
the Court determined that the evidence cited by Mr. Doucette—difficulty understanding speech in
noisy settings, embarrassment at having to ask others to repeat themselves, trouble locating the
origins of sounds, inability to hear the television or to use the telephone—were not exceptional or
unusual symptoms but simply manifestations of hearing loss and its resultant effect and that the
2 “[E]xceptional patterns of hearing loss” are addressed in 38 C.F.R. § 4.86, which nevertheless still uses
numeric designations in relevant tables to determine the extent of hearing loss. 38 C.F.R. § 4.86 (2016). Diseases of
the ear are addressed in a separate provision. 38 C.F.R. § 4.87 (2016).
5
Board did not err in finding referral for extraschedular consideration unwarranted in that case. Id.
at 371-72. To hold otherwise, the Court reasoned, would be tantamount to requiring an
extraschedular analysis in every hearing loss case, a result that would mean “the average loss of
earning capacity due to hearing loss could no longer be considered average.” Id. at 371. However,
the Court carefully noted that it was unable to conclude that the rating schedule contemplated
functional effects of hearing loss other than difficulty hearing or understanding speech or sounds.
Id. at 369, 371 (citing, as possible examples, dizziness, ear pain, vertigo, social isolation, and
recurrent loss of balance).
As with any finding on a material issue of fact or law presented on the record, the Board
must support its extraschedular referral determination with an adequate statement of reasons or
bases that enables the claimant to understand the precise basis for that finding and facilitates review
in this Court. 38 U.S.C. § 7104(d)(1); Thun, 22 Vet.App. at 115; Bagwell v. Brown, 9 Vet.App.
337, 339 (1996); Gilbert v. Derwinski, 1 Vet.App. 49, 57 (1990). To comply with this requirement,
the Board must analyze the credibility and probative value of evidence, account for evidence it
finds persuasive or unpersuasive, and provide reasons for rejecting material evidence favorable to
the claimant. Caluza v. Brown, 7 Vet.App. 498, 506 (1995), aff’d per curiam, 78 F.3d 604 (Fed.
Cir. 1996) (table).
Mr. Brown argues that the Board failed to adequately account for evidence showing that
he used hearing aids and reported difficulty hearing others and the television, especially in the
presence of background noise. Appellant’s Br. at 6-9. However, these are the types of symptoms
the Court in Doucette determined are contemplated by the schedular criteria as they “result[ ] in
an inability to hear or understand speech or to hear other sounds in various contexts.”
28 Vet.App. at 369.
In the instant case, the Board summarized the evidence of record regarding the symptoms
and severity of the veteran’s bilateral hearing loss in social and occupational settings and
determined that the veteran’s symptoms, prior to January 28, 2015, relate to hearing impairment
that is contemplated by the schedular evaluation criteria set forth in § 4.85. R. at 9-10. This is
precisely the analysis prescribed by the Court in Doucette. The Board therefore did not err when
it concluded that the symptoms and severity of the veteran’s bilateral hearing loss did not produce
an unusual or exceptional disability picture warranting extraschedular referral because the first
6
Thun element cannot be met. See Yancy, 27 Vet.App. at 494–95 (clarifying that, “[i]f either [Thun]
element is not met, then referral for extraschedular consideration is not appropriate”).
Insofar as Mr. Brown contends that the Board erred when it failed to consider evidence
reflecting that his bilateral hearing loss interfered with his ability to work—his June 2005 report
of being concerned about his ability to pass a pilot’s physical examination—such evidence pertains
to the second element of Thun, which the Board was not required to address. Id.
III. CONCLUSION
Upon consideration of the foregoing, the portion of the September 24, 2015, Board decision
that denied extraschedular referral for bilateral hearing loss prior to January 28, 2015, is
AFFIRMED. The balance of the appeal is DISMISSED.
DATED: June 30, 2017
Copies to:
Robert V. Chisholm, Esq.
VA General Counsel (027)

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