Veteranclaims’s Blog

August 18, 2015

Single Judge Application; Three Part Test; Extraschedular Referral; 38 C.F.R. § 3.321(b)(1);

Excerpt from decision below:

“The Court has reduced this regulation to a three-part test. First, the “threshold factor” is whether “the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate.” Thun v. Peake, 22 Vet.App. 111, 115 (2008). To determine whether the evidence presents an “exceptional disability picture,” the adjudicator must compare the level of severity and symptomatology of the claimant’s service-connected disability with the established criteria for that disability. . . . [I]f the criteria reasonably describe the claimant’s disability level and symptomatology, then the claimant’s disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. Id.
If, however, the severity and symptomatology of the appellant’s disability are unusual, then the adjudicator should proceed to the second step of the inquiry. Id. at 115-16. Under the second step, the Board “must determine whether the claimant’s exceptional disability picture exhibits other related factors such as those provided by the regulation as ‘governing norms.'” Id. at 116. If such governing norms as marked interference with employment or frequent periods of hospitalization exist, then the matter must be referred to an appropriate VA official to determine whether, “to accord justice,” an extraschedular disability rating should be assigned. Id.
The Board gave the following explanation for its conclusion that a referral to an appropriate agency official for extraschedular consideration is not warranted in this case: The symptoms associated with the [appellant’s] bilateral hearing loss (i.e., difficulty hearing, especially when there is background noise) are contemplated by the rating criteria and the medical evidence fails to show anything unique or unusual about the [appellant’s] bilateral hearing loss that would render the schedular criteria inadequate. The [appellant’s] main complaint is reduced hearing acuity, which is precisely what is contemplated in the rating assigned. R. at 9.”

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Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 14-3729
EVERETT E. KENNISON, APPELLANT,
V.
ROBERT A. MCDONALD,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before PIETSCH, Judge.
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a), this action may not be cited as precedent.
PIETSCH, Judge: The appellant, Everett E. Kennison, appeals through counsel an October 2, 2014, Board of Veterans’ Appeals (Board) decision in which the Board denied him entitlement to “an initial compensable evaluation for bilateral hearing loss.” Record (R.) at 3-9. This appeal is timely and the Court has jurisdiction over the matter on appeal pursuant to 38 U.S.C. §§ 7252(a) and 7266. Single-judge disposition is appropriate when the issues are of “relative simplicity” and “the outcome is not reasonably debatable.” Frankel v. Derwinski, 1 Vet.App. 23, 25-26 (1990). For the reasons that follow, the Court will vacate the Board’s decision and remand the matter on appeal for the limited purpose of requiring the Board to reconsider its conclusion that referral of the appellant’s claim to an appropriate agency official for extraschedular consideration is not warranted.

I. BACKGROUND
The appellant served on active duty in the U.S. Army from September 1974 until January
1975 and from March 1977 until October 1978. R. at 238-39. In March 2010, he filed a claim for
entitlement to disability benefits for bilateral hearing loss. R. at 177-91. In November 2010, the VA
regional office (RO) granted his claim and assigned his disorder a noncompensable disability rating.
R. at 131-36. In December 2010, he filed a Notice of Disagreement with the disability rating
assigned to his disorder. R. at 122-23.
In his Notice of Disagreement, the appellant wrote that he is “not able to hear my spouse’s
voice at all. She basically has to tap me to get my attention. Then I have to look directly at her to
understand what she is saying. I have learned to read her lips.” R. at 123. VA medical examiners
have indicated that the appellant’s hearing loss “impact[s his] ordinary conditions of daily life,
including ability to work.” R. at 46, 56, 106.
In a March 2012 Statement of the Case, the RO continued its prior decision. R. at 71-84.
In May 2012, the appellant appealed to the Board. R. at 64-65. On October 2, 2014, the Board
issued its decision here on appeal. R. at 3-9. It determined that the applicable rating criteria indicate
that the appellant is not entitled to a compensable disability rating for his hearing loss and that his
case should not be referred to an appropriate VA official for extraschedular consideration. R. at 4-9.
II. ANALYSIS
The appellant does not argue that the Board improperly applied the schedular rating criteria to the symptoms of his hearing disorder. That matter is therefore deemed abandoned on appeal. See Ford v. Gober, 10 Vet.App. 531, 535 (1997) (arguments not raised before the Court are considered
abandoned on appeal). The appellant’s only argument is that the Board did not adequately explain its conclusion that his case should not be referred to an appropriate VA official for extraschedular consideration.
Pursuant to 38 C.F.R. § 3.321(b)(1), in the exceptional case where the schedular evaluations are found to be inadequate, the Under Secretary for Benefits or the Director, Compensation Service, upon field station submission, is authorized to approve on the basis of the criteria set forth in
this paragraph an extra-schedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities. The governing norm in these exceptional cases is: A finding that the case presents 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 schedular standards.
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The Court has reduced this regulation to a three-part test. First, the “threshold factor” is whether “the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate.” Thun v. Peake, 22 Vet.App. 111, 115 (2008). To determine whether the evidence presents an “exceptional disability picture,” the adjudicator must compare the level of severity and symptomatology of the claimant’s service-connected disability with the established criteria for that disability. . . . [I]f the criteria reasonably describe the claimant’s disability level and symptomatology, then the
claimant’s disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. Id.
If, however, the severity and symptomatology of the appellant’s disability are unusual, then the adjudicator should proceed to the second step of the inquiry. Id. at 115-16. Under the second
step, the Board “must determine whether the claimant’s exceptional disability picture exhibits other related factors such as those provided by the regulation as ‘governing norms.'” Id. at 116. If such
governing norms as marked interference with employment or frequent periods of hospitalization exist, then the matter must be referred to an appropriate VA official to determine whether, “to accord
justice,” an extraschedular disability rating should be assigned. Id.
The Board gave the following explanation for its conclusion that a referral to an appropriate agency official for extraschedular consideration is not warranted in this case:
The symptoms associated with the [appellant’s] bilateral hearing loss (i.e., difficulty hearing, especially when there is background noise) are contemplated by the rating criteria and the medical evidence fails to show anything unique or unusual about the [appellant’s] bilateral hearing loss that would render the schedular criteria inadequate.
The [appellant’s] main complaint is reduced hearing acuity, which is precisely what is contemplated in the rating assigned.R. at 9.
The Board’s conclusion is a factual determination subject to the “clearly erroneous” standard of review. Thun, 22 Vet.App. at 115. When making factual determinations, the Board is required to provide a written statement of the reasons or bases for its findings and conclusions adequate to enable an appellant to understand the precise basis for the Board’s decision as well as to facilitate review in this Court. 38 U.S.C. § 7104(d)(1); Allday v. Brown, 7 Vet.App. 517, 527 (1995); Gilbert
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v. Derwinski, 1 Vet.App. 49, 56-57 (1990). To comply with this requirement, the Board must analyze the credibility and probative value of the evidence, account for the evidence that it finds persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Caluza v. Brown, 7 Vet.App. 498, 506 (1995), aff’d per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table); Gilbert, 1 Vet.App. at 57.
The Board decided the extraschedular question under the first prong of the Thun test. See 22 Vet.App. at 115. Although the Board stated that it considered what “the medical evidence” contains, it failed to discuss a majority of the appellant’s lay statements describing the effects of his
disorder. R. at 9; see R. at 46, 56, 106.
In December 2011, the appellant stated that he has “[d]ifficulty understanding speech in noise.” R. at 106. The Board cited this quotation, ignored all others, and used it to form its view that the appellant’s symptoms include “difficulty hearing” and “reduced hearing acuity.” R. at 9. The
appellant also stated, however, that his disorder affects “communication ability for all communication” and that when his wife speaks to him, he cannot hear her “at all.” R. at 46, 56, 123(emphasis added). Further, the appellant has noted that, during speech recognition testing, he had
to “stop and think about what [the examiner] was saying because what I initially heard was not a word.” R. at 123. These statements suggest that the Board may have believed the appellant’s symptoms are less severe than they actually are.
The lay statements that the Board did not discuss appear to be relevant and material to the appellant’s claim. Assuming that they are credible and that the appellant is competent to make them, the Board should have specifically explained why they do not show that the appellant’s hearing loss
is, in its words, “unique or unusual.” R. at 9; see Thompson v. Gober, 14 Vet.App. 187, 188 (2000)(stating that the Board must provide an adequate statement of reasons or bases “for its rejection of any material evidence favorable to the claimant”).
When the Board considers the appellant’s statements on remand, it should first determine whether he is competent to make them and whether they are credible. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006). If it answers those questions in the affirmative, it should then compare the symptomatology that the appellant describes to the rating criteria applicable to hearing loss claims and specifically
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discuss whether “the criteria reasonably describe the claimant’s disability level and symptomatology.” Thun, 22 Vet.App. at 115. If it finds that they do, then referral for extraschedular consideration is not warranted and the Board’s work is done. Id. If it finds that they do not, it should then discuss
whether record evidence conveying that the appellant’s hearing loss affects his ability to work indicates that his hearing loss causes marked interference with employment. Id.; R. at 46, 56, 106.
The Court need not at this time address any other arguments the appellant has raised. See Best v. Principi, 15 Vet.App. 18, 20 (2001) (per curiam order) (holding that “[a] narrow decision preserves for the appellant an opportunity to argue those claimed errors before the Board at the
readjudication, and, of course, before this Court in an appeal, should the Board rule against him”).
On remand, the appellant is free to submit additional evidence and argument on the remanded matters, and the Board is required to consider any such relevant evidence and argument. See Kay v. Principi, 16 Vet.App. 529, 534 (2002); Kutscherousky v. West, 12 Vet.App. 369, 372-73 (1999)(per curiam order). The Court has held that “[a] remand is meant to entail a critical examination ofthe justification for the decision.” Fletcher v. Derwinski, 1 Vet.App. 394, 397 (1991). The Board must proceed expeditiously, in accordance with 38 U.S.C. § 7112 (requiring the Secretary to provide
for “expeditious treatment” of claims remanded by the Court).

III. CONCLUSION
After consideration of the appellant’s and the Secretary’s briefs and a review of the record,
the Board’s October 2, 2014, decision is VACATED and the matter on appeal is REMANDED for
the Board to reconsider whether referral to an appropriate agency official for extraschedular
consideration is warranted.
DATED: August 17, 2015
Copies to:
Robert V. Chisholm, Esq.
VA General Counsel (027)
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