Rossy: Hearing Loss and Referral for Extraschedular Consideration, Reconsidered

Rossy v. Shulkin, Case Number 16-0720, decided December 13, 2017 considers whether a claim for hearing loss should be referred for extraschedular consideration. 

The Court determined this case was controlled by Doucette v. Shulkin, 28 Vet. App. 366 (2017).  Essentially Doucette concerned a case where the scheduler rating for hearing loss was not dispute but the veteran believed it should have been referred for extraschedular consideration.  In Doucette the Court noted the Board only has to consider referral for extraschedular consideration when there is evidence in the record showing exceptional or unusual circumstances or where the veteran has asserted that a scheduler rating is inadequate. 

The Court here, said Doucette controls and noted the only particularized hearing problem was understanding conversations, particularly in noisy or crowded circumstances.  The Court noted that referral for extraschedular considerations might be necessary based on a collective impact of multiple disabilities but states the veteran’s attorney did not raise such an argument in his opening brief and such omission constitutes abandonment.  It further notes that even reviewing the record, the Court found no indication the veteran explicitly asserted the combined effects of bilateral hearing and his PTSD required extraschedular considerations nor reasonably raised the issue before the Board.

Judge Greenberg dissented and wrote the record reasonably raised the collective impact issue because the appellant has difficulties communicating because of his hearing loss and reported his PTSD causes feelings of detachment and estrangement from others. 

The lesson from this case might be to explicitly raise a combined effect argument when seeking extraschedular consideration.  However, the case also displays the Court taking a narrow view of what was raised by the veteran and before the Board, a concern when so many veterans are not represented by attorneys.

Decision by Judge Toth and joined by Judge Bartley.  Dissent by Judge Greenberg