King v. Shulkin, Case Number 16-2959, decided December
21, 2017 considers whether a claim for hearing loss should be referred for
extraschedular consideration. While it is
in accord with Doucette v. Shulkin, decided March 6, 2017 by the Court,
I believe it also explicates Doucette in a manner more helpful to
veterans. The dissenting judge in Doucette
actually was part of the panel in King.
In my note on Doucette I stated 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.” It looks
like the Court took the path available to them in King and drilled down
on the referral for extraschedular considerations.
The Court focuses on two “central issues: (1) whether, in
fact, the rating criteria
adequately contemplated the functional effects of the
appellant's bilateral hearing loss such that extraschedular referral was not
required and (2) whether the availability of higher schedular ratings has any
role in an extraschedular analysis by the Board.” Id. at *3-4.
However, first the Court, in a beautifully written
explanation, considers the extraschedular referral legal framework. It notes:
that the rating schedule is based
on average impairment. Accordingly, for exceptional cases, VA has provided for
the assignment of extraschedular ratings in 38 C.F.R. § 3.321(b)(1), which
reads, in relevant part:
To accord justice . . . to the
exceptional case where the schedular evaluations are found to be inadequate,
the Under Secretary for Benefits or the Director, Compensation and Pension . . . is authorized to approve on the
basis of the criteria set forth in this paragraph an extra-schedular evaluation
commensurate with the average capacity impairment due exclusively to the
service-connected disability or disabilities. The governing norm in these
exceptional cases is: A finding that the case present 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 scheduler standards.
There is an important point here
that bears emphasis, one that can often be lost in the technicalities of the
law. The goal of the entire rating process is to appropriately compensate veterans. The schedular and
extraschedular analyses are just different means of doing so. One can think of
them as something like Robert Frost's diverging roads in his famous poem The Road Not Taken. The more traveled road (traditional schedular
analysis) may not always adequately encapsulate a veteran's disability picture.
Therefore, veterans may, provided there is sufficient evidence of record, take
the one less traveled by (extraschedular analysis). Regardless of which road is
chosen, and unlike Frost's poetic description, the destination is the same:
providing veterans with compensation appropriate to make up for the
earning-related impact of a service-connected disability.
Id. at *4-5.
The Court also repeated and explicated the three Thun
elements necessary for referral for extraschedular consideration and notes the
Board declined to refer based on the first element and referenced as a reason “higher
ratings for more severe symptoms.” Id.
at *6.
The Court soundly rejected the Secretary’s position and held
“the availability of higher schedular ratings plays no role in an extraschedular
analysis and that it is inappropriate for the Board to deny extraschedular
referral on this basis.” Id. at *8. The Court reasoned that “[t]he plain language
of § 3.321(b)(1) makes this clear: extraschedular consideration should be
considered ‘where the scheduler evaluations are found to be inadequate.’” Id. at *9.
The Court then determined its analysis of Section 3.321 is relevant to
all claims and not just hearing loss.
Id. at *10.
The opinion also contains a nugget that is interesting. The Court is generally not willing to engage
in fact finding, instead remanding cases to the Board for findings of
fact. This practice, whether required or
not, results in many remands that then require more work by the VA and a
seemingly endless hamster wheel for veterans.
The Secretary had argued the Board’s reference to higher scheduler ratings
was superfluous and thus harmless. The
Court noted the only way the Board’s reference could be harmless if the Court
concluded the evidence did not establish the presence of functional effects not
contemplated by the rating schedule or that even if they were present, there
was insufficient evidence of their linkage to the service connected disability. The Court then stated “Such determinations
would require us to engage in a host of fact finding, something this Court is
unwilling to do on this record.” Id. at
*10. While the Court is stating they
will not engage in fact finding, they seem to go out of their way to say they
will not do so based on the limited record before them. I don’t know if this signals the Court may be
willing to engage in more extensive factfinding under the right set of facts and
with the right record, but the language is different than normally used and at
least plants the seeds of more far reaching change.
Note the decision was written by Judge Allen and represents
what I believe is his first published opinion for the Court. It is masterfully and clearly written,
revealing his academic background, and a step forward for veterans. The decision was joined in by Judges Schoelen
and Greenberg.
