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.
