Veteranclaims’s Blog

December 31, 2019

Single Judge Application; vertigo symptoms related to his service-connected hearing loss; extraschedular; vestibular disorder; Caluza v. Brown, 7 Vet.App. 498, 506 (1995);

Filed under: Uncategorized — Tags: — veteranclaims @ 12:58 pm

Excerpt from decision below:

“The Court concludes that the Board provided an inadequate statement of reasons or bases for finding that a disability rating in excess of 10% for bilateral hearing loss was not warranted because the Board did not consider all favorable and material evidence. See Caluza v. Brown, 7 Vet.App. 498, 506 (1995)(finding that the Board must account for and provide the reasons for its 5 rejection of any material evidence favorable to the claimant), aff’d per curiam, 78 F.3d 604 (Fed. Cir. 1996). The Board determined that referral for extraschedular consideration was not warranted, in part because “[t]here was no indication” from the August 2018 private examiner that appellant’s vertigo symptoms were “in any way related to [his]hearing loss disability.” R. at 11. However, the Board failed to consider the March 2011 private examination report, in which the examiner associated dizziness with the appellant’s in-service acoustic trauma.See R. at 479-80. The Board thus failed to adequately address whether the appellant’s current vertigo symptoms are related to his service-connected hearing loss.”

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Designated for electronic publication only

UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS

No. 19-0332

HARVEY M.PICCUS,APPELLANT,

V.

ROBERT L.WILKIE,SECRETARY OF VETERANS AFFAIRS,APPELLEE.

Before GREENBERG, Judge. MEMORANDUM DECISION Note: Pursuant to U.S. Vet. App. R. 30(a),this action may not be cited as precedent.

GREENBERG, Judge: Veteran Harvey M. Piccus appeals through counsel that part of a December 4, 2018, Board of Veterans’ Appeals decision that denied a disability rating in excess of 10% for bilateral hearing loss.1Record (R.) at 3-13. The appellant argues that the Board erred by relying on an inadequate medical examination, failing to refer the appellant’s claim for extraschedular consideration, and erroneously finding that vestibular orders permitted no more than a 10%rating. Appellant’s Brief at 6-8. For the following reason, the Court will vacate that part ofthe December 2018 Board decision on appeal and remand the matter for readjudication. Justice Alito noted inHenderson v. Shinsekithat our Court’s scope of review in this appeal is “similar to that of an Article III court reviewing agency action under the Administrative Procedure Act, 5U.S.C. § 706.” 562U.S. 428, 432 n.2 (2011); see38U.S.C. §7261. The creation of a special court solely for veterans, and other specified relations such as their widows, is consistent with congressional intent as old as the Republic. See Hayburn’s Case, 2U.S. (2 Dall.) 1The Board also denied a disability rating in excess of 10% for service-connected tinnitus. As the appellant has stated that this determination “is not at issue,” see Appellant’s Brief at 2n.1, the Court deems this matter abandoned. See Pederson v. McDonald, 27 Vet.App. 276, 285 (2015) (en banc) (holding that, where an appellant abandons an issue or claim, the Court will not address it).2409, 410 n., 1 L. Ed. 436 (1792) (“[T]he objects of this act are exceedingly benevolent, and do real honor to the humanity and justice of Congress.”). “The Court may hear cases by judges sitting alone or in panels, as determined pursuant to procedures established by the Court.” 38 U.S.C. §7254. Accordingly, the statutory command of Congress that a single judge may issue a binding decision, pursuant to procedures established by the Court, is “unambiguous, unequivocal, and unlimited.” Conroy v. Aniskoff, 507U.S. 511, 514 (1993); see generally Frankel v. Derwinski, 1Vet.App. 23, 25-26 (1990). From the beginning of the Republic, statutory construction concerning congressional promises to veterans has beenof great concern. “By the act concerning invalids, passed in June, 1794, vol. 3. p. 112, the secretary at war is ordered to place on the pension list, all persons whose names are contained in a report previously made by him to congress. If he should refuse to do so, would the wounded veteran be without remedy? Is it to be contended that where the law, in precise terms, directs the performance of an act, in which an individual is interested, the law is incapable of securing obedience to its mandate? Is it on account of the character of the person against whom the complaint is made? Is it to be contended that the heads of departments are not amenable to the laws of their country?” Marbury v. Madison, 5 U.S. 137, 164, 2 L. Ed. 60, 69 (1803).The appellant served on active duty in the U.S.Army from August 1961 until August 1963 as a dental officer. R. at 418 (DD Form 214).In November 2008, the appellant filed for benefits based on service connection for left ear hearing loss. R. at 677-85. In November 2009, the appellant underwent a VA audiological examination. R. at 559-61. He reported having difficulty communicating. R. at 561. A Maryland CNC test showed speech recognitionscores of 98% in the right ear and 2% in the left ear.R. at 560. Puretone audiometry thresholds werethe following:HERTZ5001000200030004000RIGHT1015102030LEFT308515120115R. at 560.3The appellant underwent an independent audiological examination in March 2011. R. at 477-80. The examiner opined thatthe appellant’s current hearing losswas at least as likely as not related toan in-service acoustic trauma. R. at 480.The examiner noted that this trauma also caused dizziness. R. at 479-80.Relying on the March 2011 examiner’s opinion, in June 2011 theregional office (RO) granted service connection for left ear hearing loss and assigned a 10% rating effective November 2008. R. 450-54.The appellant underwent another VA audiological examination in June 2014. R.at 347-57.He reported difficulty localizing sound or hearing conversations where background noise is present. R. at 353.A speech recognition test showed scores of 100% in the right ear and 0% in the left ear. R. at 349.Puretone audiometry thresholds werethefollowing:HERTZ5001000200030004000RIGHT1020103535LEFT4590105+105+105+R. at 348-49.The appellant submitted a private September 2014 audiogram, which showedthe followingpuretone audiometry thresholds:HERTZ5001000200030004000RIGHT2530204040LEFT75105105+105+105+R. at 191.In November 2014, the RO granted service connection for right ear hearing loss and continued a 10% rating for bilateral hearing loss. R. at 162-65.The appellant underwent another VA audiological examination in May 2016. R. at 127-38. He reported asking people to sit on his right side because his hearing was superior in that ear. R. at 134. A speech recognition test showed scores of 100% in the right ear and 0% in the left ear. R. at 130. Puretone audiometry thresholds wereas follows:4HERTZ5001000200030004000RIGHT2520203540LEFT100105+105+105+105+R. at 129.The appellant submitted a private August 2018 audiogram and report. R. at 40-43.He reported that he had experienced 2 episodes of vertigo per year for each of the previous 2 years. R. at 40. The appellant had speech recognition scores of 96% in the right ear and 0% in the left ear. R. at 40. Puretone audiometry thresholds wereas follows:HERTZ5001000200030004000RIGHT3035405055LEFT105120120120120R. at 42.In December 2018, the Boarddenied a disability rating in excess of 10% for bilateral hearing loss. R. at 3-13.The Board applied the appellant’s November 2009, June 2014, September 2014, May 2016, and August 2018 puretone threshold and speech recognition scores to the schedular rating criteriaand foundthat a 10% rating, but no higher,was warranted throughout the appeal period. R. at 6-10 (citing 38 C.F.R. § 4.85, Diagnostic Code (DC) 6100, Tables VI, VIA, VII (2019)). With respect to a possible extraschedular rating, the Board found that the rating criteria contemplated the appellant’s reported decreased hearing acuity and difficulty understanding conversational speech. R. at 11(citing Doucette v. Shulkin, 28 Vet.App. 366 (2017)). The Board found no evidence from the August 2018 VA examination report that the appellant’s vertigo was related to his service-connected bilateral hearing loss. R. at 11.The Board concluded that referral of the matter for extraschedular consideration was not warranted. R. at 12.This appeal ensued. The Court concludes that the Board provided an inadequate statement of reasons or bases for finding that a disability rating in excess of 10% for bilateral hearing loss was not warranted because the Board did not consider all favorable and material evidence. See Caluza v. Brown, 7 Vet.App. 498, 506 (1995)(finding that the Board must account for and provide the reasons for its 5 rejection of any material evidence favorable to the claimant), aff’d per curiam, 78 F.3d 604 (Fed. Cir. 1996). The Board determined that referral for extraschedular consideration was not warranted, in part because “[t]here was no indication” from the August 2018 private examiner that appellant’s vertigo symptoms were “in any way related to [his]hearing loss disability.” R. at 11. However, the Board failed to consider the March 2011 private examination report, in which the examiner associated dizziness with the appellant’s in-service acoustic trauma.See R. at 479-80. The Board thus failed to adequately address whether the appellant’s current vertigo symptoms are related to his service-connected hearing loss. Remand is warranted for the Board to provide an adequate statement of reasons or bases for its degree of disability determination that addresses all favorable and material evidence. See Caluza, 7 Vet.App. at 506.Because the Court is remanding the appellant’s claim, it will not address the appellant’s remaining arguments.See Dunn v. West, 11Vet.App. 462, 467 (1998). On remand, the appellant may present, and the Board must consider, any additional evidence and arguments. See Kay v. Principi, 16Vet.App. 529, 534 (2002). This matter is to be provided expeditious treatment. See 38U.S.C. §7112; seealso Hayburn’s Case, 2U.S. (2 Dall.) at 410, n. (“[M]any unfortunate and meritorious [veterans], whom Congress have justly thought properobjects of immediate relief, may suffer great distress, even by a short delay, and may be utterly ruined, by a long one.”).For the foregoing reason, that part of the December 4, 2018, Board decision on appeal is VACATEDand the matter is REMANDED for readjudication.DATED: December 30, 2019

Copies to: Thomas E. Zeno, Esq.

VA General Counsel (02

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