On March 6, 2017, the United States Court of Appeals for Veterans Claims (Court) issued a decision in Doucette v. Shulkin, affirming the Board of Veterans’ Appeals (Board) decision denying entitlement to an initial compensable rating for his service-connected hearing loss. Judge Lance, with whom Chief Judge Davis joined, wrote the majority opinion and Judge Schoelen issued a dissenting opinion.
Mr. Doucette argued that the Board misapplied 38 C.F.R. § 3.321(b)(1) and failed to provide an adequate statement of reasons or bases for its decision that he was not entitled to referral for extraschedular consideration. The Secretary responded that the service-connected hearing loss did not present such an exceptional disability picture that evaluation under the rating schedule was not adequate.
The Court initially addressed whether the schedular rating criteria for hearing loss contemplates specific functional effects of hearing impairment. It explained that the rating criteria for hearing loss do not list any particular symptoms or functional effects; rather, review is done through the mechanical application of the audiometric testing results to a rating table. After explaining the history of the current rating criteria, the Court held “that the rating criteria for hearing loss contemplate[s] 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.”
The Court then explained that the rating criteria does not account for, other functional effects, such as dizziness, vertigo, or ear pain. The Court made clear that, contrary to Mr. Doucette’s argument, the Board was not required to engage in an extraschedular analysis in all hearing loss claims because the purpose of extraschedular ratings is to recognize exceptional or unusual circumstances. The Court stated that “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.”
Based on the particular facts in Mr. Doucette’s case, the Court found that the reported effects of his hearing loss, for example difficulty distinguishing sounds in a crowded environment, locating the source of sounds, understanding conversational speech, hearing the television, and using the telephone, are each a manifestation of his difficulty hearing or understanding speech and already contemplated by the schedular rating criteria. As a result, the Court held that the Board had no obligation to address extraschedular referral. Notwithstanding that finding, it noted that the Board did provide an extraschedular analysis, and determined that the Board properly determined that the reported symptoms were not exceptional or unusual.
In her dissenting opinion, Judge Schoelen wrote that she “believe[d] the rating criteria are inadequate to contemplate a veteran’s functional effects and entire disability picture.” Judge Schoelen commented that “the rating schedule for hearing loss does not explain what the effects of the match of puretone threshold with speech discrimination should be.” She noted it was impossible for the Court to interpret the severity or functional effects of a veteran’s hearing loss based on the tables provided by VA in its regulations, and she stated that “[t]he majority fails to explain how the Board could review the functional effects of hearing loss and match those functional effects with nonexistent criteria.”
Read more on the Court’s decision.
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