Chudy: Hearing Loss and Referral for Extraschedular Consideration

Chudy v. O’Rourke, Case Number 17-0082, decided June 14, 2018 considers whether a claim for hearing loss should be referred for extraschedular consideration.  It is in a line of cases most recently including Doucette v. Shulkin, (2017) and King v. Shulkin (2017) which address this issue, but reach a result more narrow than that of King.

In King, 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, in Chudy, the Court focused on the Thun factors and the specific facts alleged by the veteran.  The veteran is retired but pointed to evidence of trouble talking with his grandchildren and wife.  The Court concluded “On its face, this statement has no bearing on whether Mr. Chudy's hearing loss interfered with employment.”  Id. at *6.  The Court then stated:

In any event, the Board directly addressed the December 2015 report in its decision and

explained that the VA examiner "noted that the functional impact of Mr. Chudy's hearing loss was that [he] ha[d] difficulty understanding speech in certain circumstances," but that "this alone d[id] not prohibit his ability to work in his given field." Although the Board may have been terse in its finding no marked interference with employment, the Board's brevity was understandable given that there was no evidence to discuss with respect to this issue, nor has Mr. Chudy identified any such evidence. Read as a whole, the Board's statement of reasons or bases for finding that there was no marked interference with employment is understandable and facilitates judicial review, and the Court otherwise discerns no error in the Board's finding.

Id. at *6.

Judge Greenberg who dissented in Doucette and joined in the King opinion wrote a blistering dissent as what he must see as an attempt to rollback and limit the impact of King. 

He begins by noting Chudy is a combat Vietnam Veteran who has received the Purple Heart who has battled with the VA for years for benefits.  The Court then notes “The majority …  skates over the fact that the Board failed to explain how the rating criteria contemplate the appellant's symptomology. See Thun v. Peake, 22 Vet.App. 111, 115 (2008), aff'd sub nom. Thun v. Shinseki, 572 F.3 1366 (Fed. Cir. 2009) (when either a claimant or the evidence of record suggests that a schedular rating may be inadequate, the VA must determine whether the evidence before it "presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate.").”.  Id. at *9.  He noted symptoms of ear pain, ear pressure and dizziness and states it is unclear how those symptoms are addressed by the diagnostic code.  Id. at *10.  He then turns on the adequacy of the examinations, which were conducted after retirement and note no impact on functional impairment.  He states:

It is illogical to suggest that a retired claimant who describes a difficulty hearing voices would not experience marked interference with employment; the evidence in the current case simply reflects that the appellant is retired. The appellant's absence from the workforce does not preclude the possibility that his uncompensated symptoms would

have caused marked interference with employment.

Id. at *10

This case is nothing more than a pitched battle among the Court’s judges on whether hearing loss claims should result in referral for extraschedular consideration and a longer game issue regarding the impact of extraschedular consideration for all disabilities.  The Secretary, of course, is working against veterans to attempt to narrow the confines of referral for extraschedular consideration and some judges of the Court are fine with that approach. Others, such as Judge Greenberg are fighting for application of it to assist veterans.

Note the decision was written per curium by Judges Schoelen and Pietsch with the dissent by Judge Greenberg.  Interestingly, Judge Schoelen joined in the King decision, but clearly seeks to limit its reach.