King: Hearing Loss and Referral for Extraschedular Consideration and Duocette Explicated

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.