"It is the duty of the people to care for him who shall have borne the battle, his widow, and orphan."
-Abraham Lincoln

Tuesday, March 14, 2017

Doucette: Hearing Loss and Referral for Extraschedular Consideration

Doucette v. Shulkin, Case Number 15-2818, decided March 6, 2017 considers whether a claim for hearing loss should be referred for extraschedular consideration.

The veteran didn’t dispute the determination that the hearing loss was proper per the scheduler rating, but that the Board failed to provide an adequate statement of reasons or bases for its determination that he wasn’t entitled to referral for extraschedular consideration.  He specifically contended the Board failed to explain how his hearing loss was properly contemplated by the rating schedule and to adequately discuss extraschedular consideration in terms of the hearing loss’s effects on his functional capacity.

The Court explained that when evaluating hearing loss the VA

measures a veteran's ability to hear certain frequencies at specific volumes and to understand speech, using rating tables to correlate the results of audiometric testing with varying degrees of disability. In light of the plain language of §§ 4.85 and 4.86, as well as the regulatory history of those sections, the Court holds that the rating criteria for hearing loss contemplate the functional effects of decreased hearing and difficulty understanding
speech in an everyday work environment, as these are precisely the effects that VA's audiometric tests are designed to measure. Thus, 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. However, as the rating criteria do not otherwise discuss, let alone account for, other functional effects, such as dizziness, vertigo, ear pain, etc., the Court cannot conclude that the rating schedule, on its face, contemplates effects other than difficulty hearing or understanding speech.

Id. at *4-5.

As applied in this case, 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.  Specifically, as to hearing loss, the Court stated “the Board is only obligated to discuss extraschedular referral for hearing loss when there is evidence in the record which reveals that the appellant's hearing loss presents exceptional or unusual circumstances or where the appellant has asserted that a schedular rating is inadequate.”  Id. at *6-7.  The Court further stated

To be clear, although the Court holds that the rating criteria for hearing loss contemplate the functional effects of difficulty hearing and understanding speech, the Court does not suggest that the rating criteria contemplate all functional impairment due to a claimant's hearing loss. On the contrary, a hearing loss claimant could provide evidence of numerous symptoms, including—for purposes of example only—ear pain, dizziness, recurrent loss of balance, or social isolation due to difficulties communicating, and the Board would be required to explain whether the rating criteria contemplate those functional effects. In general, however, the Secretary's decision to rate hearing loss disabilities by the application of a veteran's audiometric testing results to rating tables does not alter the circumstances under which the Board must discuss whether referral is appropriate in an individual veteran's appeal.

Id. at *8.

The Court then turned to the merits of this case noting the appellant asserted his hearing loss made it difficult to distinguish sounds in a crowded environment, locating sources of sounds, understanding conversational speech, hearing the TV and using a telephone.  But, the Court noted “each [is] a manifestation of his difficulty hearing or understanding speech which, as the Court discussed above, is contemplated by the scheduler rating criteria for hearing loss.”  Id. at *8.  Therefore, the Court determined the Board wasn’t obligated to discuss extraschedular referral in this case.

A dissent by Judge Schoelen notes the rating criteria is inadequate to contemplate the veteran’s functional effects and the Board provided an inadequate statement of reasons or bases regarding its refusal to refer the hearing loss claim for extraschedular consideration.
She explains:

The fundamental problem arises because the rating schedule for hearing loss does not explain what the effects of the match of puretone threshold with speech discrimination should be. 38 C.F.R. §§ 4.85 (2016), 4.86 (2016). Sections 4.85 and 4.86 consist of tables designed to identify different levels of hearing loss in a controlled environment, but the tables do not address the functional effects or severity of a veteran's hearing loss. Instead, the rating schedule produces only Roman numerals. Although the rating schedule  undoubtedly contemplates hearing loss, it is impossible for the Court to interpret with any particularity the severity or functional effects of a veteran's hearing loss simply by seeing, for example, Roman numeral "IV."

Id. at *12.

She notes that a prior decision, Martinak, directs only VA audiologists to note functional effects of hearing loss and not the Board, but states “nothing in Martinak absolves the Board of its responsibility to provide an adequate statement of reasons or bases it ins decision.”  Id. at *13.  She then doubles down and states “no matter how extensive the Board's statement of reasons or bases is, I do not believe that that statement can ever sufficiently fill in the gaps in the rating schedule. The majority fails to explain how the Board could review the functional effects of hearing loss and match those functional effects with nonexistent criteria. If the Board were permitted to do so, their analysis would be tantamount to a Colvin violation.”  Id. at *14.  She then concludes that she would remand directing the Board to provide an adequate statement of reasons or bases for refusing to refer for extraschedular consideration.

The powerful dissent, which exposes the flaws in the VA rating for hearing loss call out for a the veteran to seek appellate review of this decision. The result should be either more detailed discussions of referral for extraschedular considerations or a revised Diagnostic Code.


Decision by Judge Lance and joined by Chief Judge Davis.  Dissent by Judge Schoelen.