Veteranclaims’s Blog

January 21, 2017

Single Judge Application;§ 3.321(b); Extraschedular Rating in Hearing Loss; Objective and Subjective Requirements; Martinak v. Nicholson, 21 Vet.App. 447, 455 (2007); Thun v. Peake, 22 Vet.App. 111, 115 (2008);

Excerpts from decision below:

“extraschedular ratings. 38 C.F.R. § 3.321(b)(1) (2015). “Whether a claimant is entitled to an extraschedular rating under § 3.321(b) is a three-step inquiry:” If (1) the schedular evaluation does not contemplate the claimant’s level of disability and symptomatology, and (2) the disability picture exhibits other related factors such as marked interference with employment or frequent periods of hospitalization, then (3) the case must be referred to an authorized official to determine whether, to accord justice, an extraschedular rating is warranted. Thun v. Peake, 22 Vet.App. 111, 115 (2008).”

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“The Court has held that “[u]nlike the rating schedule for hearing loss, § 3.321(b) does not rely exclusively on objective test results to determine whether a referral for an extraschedular rating is warranted,” and therefore, “in addition to dictating objective test results, a VA audiologist must fully describe the functional effects caused by a hearing disability in his or her final report.” Martinak v. Nicholson, 21 Vet.App. 447, 455 (2007).”

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Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 15-1043
DARRELL T. CAULK, APPELLANT,
V.
ROBERT A. MCDONALD, SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before SCHOELEN, Judge.
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a), this action may not be cited as precedent.
SCHOELEN, Judge: The appellant, Darrell T. Caulk, through counsel, appeals a December 4, 2014, Board of Veterans’ Appeals (Board) decision in which the Board denied his claim for a compensable rating for service-connected bilateral hearing loss. Record of Proceedings (R.) at 2-10. This appeal is timely, and the Court has jurisdiction to review the Board’s decision pursuant to 38 U.S.C. §§ 7252(a) and 7266(a). Single-judge disposition is appropriate. See Frankel v. Derwinski, 1 Vet.App. 23, 25-26 (1990). For the following reasons, the Court will vacate the decision and remand the matter for further proceedings consistent with this decision.
I. BACKGROUND The appellant served in the U.S. Army National Guard, with a period of active duty service from June 1980 to September 1980. R. at 48. In January 2011, the appellant filed a disability compensation claim for bilateral hearing loss. R. at 163. In June 2011, the appellant underwent a VA audiological examination, during which the appellant reported a history of in-service exposure to cannons, rifles, artillery, and explosions. R. 103-04. The examiner diagnosed the appellant with “sensori[]neural hearing loss bilaterally,” characterized as “[n]ormal to [m]oderately severe” in the right ear and “[n]ormal to [s]evere” in the left ear. R. at 105. The examiner opined that the appellant’s hearing loss caused “significant effects” on his occupation and “hearing difficulty” during occupational activities. Id. The examiner also opined that the appellant’s hearing loss had no effects on his usual daily activities. Id. The appellant underwent another examination after submitting his service treatment records, and in July 2011, the new examiner opined that the appellant’s bilateral sensorineural hearing loss was “most likely caused by or a result of military service from acoustic trauma during service.” R. at 101-02. That same month, VA granted the appellant a noncompensable rating for his bilateral hearing loss. R. at 92-98. In October 2011, the appellant’s wife submitted a lay statement asserting that the appellant must listen to the television at a high volume, has trouble hearing when he is on the phone, and has difficulty hearing his alarm clock when it is on certain settings. R. at 46. Additionally, in December 2011, the appellant submitted lay statements on behalf of himself, his wife, and his step-daughter. R. at 89-91. All three lay statements detail the appellant’s daily living troubles, such as not being able to hear while talking on the phone and needing to have the television set at a loud volume. Id. In February 2012, the regional office (RO) issued a Statement of the Case (SOC) that continued the appellant’s noncompensable rating for bilateral hearing loss. R. at 80. That same month, the appellant perfected his appeal to the Board. R. at 51-52. In March 2012, the appellant submitted the results of a private audiometric evaluation and a another lay statement detailing his military noise exposure. R. at 41-42. In September 2013, the RO issued a Supplemental SOC continuing the appellant’s 0% rating for bilateral hearing loss. R. at 33-36. On December 4, 2014, the Board issued the decision on appeal, which denied the appellant a compensable rating for his bilateral hearing loss. R. at 2-10. Additionally, the Board determined that the matter did not warrant extraschedular referral because the appellant’s symptoms were contemplated by the diagnostic code. R. at 9. This appeal followed.

II. ANALYSIS The appellant argues that the Board provided inadequate reasons and bases for its determination that the matter did not warrant extraschedular referral. Appellant’s Brief (Br.) at 3. Specifically, the appellant asserts that the Board ignored favorable evidence demonstrating the severe
2
functional effects of his hearing loss. Id. at 3-4. The Secretary argues that the Board’s reasons and 1 bases are adequate because the Board recognized that the functional effects of the appellant’s hearing loss are “contemplated by the relevant [diagnostic codes] and standards for evaluation based on audiometric testing.” Secretary’s Br. at 7. Generally, disability ratings for hearing loss are derived from the mechanical process of applying the rating schedule to the specific numeric scores assigned by audiology testing. See Lendenmann v. Principi, 3 Vet.App. 345, 349 (1992); 38 C.F.R. § 4.85, Diagnostic Codes (DCs) 6100-6110 (2015). In exceptional cases, VA has authorized the assignment of extraschedular ratings. 38 C.F.R. § 3.321(b)(1) (2015). “Whether a claimant is entitled to an extraschedular rating under § 3.321(b) is a three-step inquiry:” If (1) the schedular evaluation does not contemplate the claimant’s level of disability and symptomatology, and (2) the disability picture exhibits other related factors such as marked interference with employment or frequent periods of hospitalization, then (3) the case must be referred to an authorized official to determine whether, to accord justice, an extraschedular rating is warranted. Thun v. Peake, 22 Vet.App. 111, 115 (2008). The Court has held that “[u]nlike the rating schedule for hearing loss, § 3.321(b) does not rely exclusively on objective test results to determine whether a referral for an extraschedular rating is warranted,” and therefore, “in addition to dictating objective test results, a VA audiologist must fully describe the functional effects caused by a hearing disability in his or her final report.” Martinak v. Nicholson, 21 Vet.App. 447, 455 (2007). The Board’s determination whether referral for an extraschedular disability rating is appropriate is a factual determination that the Court reviews under the “clearly erroneous” standard of review. Thun, 22 Vet.App. at 115. In rendering its decision, the Board must provide a statement of the reasons or bases for its determination, 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); see Allday v. Brown, 7 Vet.App. 517, 527 (1995); Gilbert, 1 Vet.App. at 56-57.
The appellant does not allege error regarding the Board’s denial of a higher schedular1 evaluation for bilateral hearing loss. Therefore, the Court will not consider the matter. 3
In the decision on appeal, the Board stated: The symptoms of his disability have been reflected by the scheduler criteria. In regards to hearing loss, the June 2011 VA examination report noted that he has difficulty hearing with regards to occupational activities, but that there were no effects reported on the Veteran’s usual daily life. See Martinak[], 21 Vet. App. [at] 447 []. Further, the Veteran has provided lay testimony that he has difficulty hearing the television unless the volume is set at a high level, that he is unable to hear his alarm clock in the morning, and that he tends to yell when using the telephone, because he has difficulty hearing conversation. Such an effect does not take the Veteran’ s case outside the norm as to require consideration of a higher evaluation on an extraschedular basis because difficulty hearing is contemplated by the rating criteria. R. at 9. The Court finds the Board’s terse conclusion inadequate. Thun makes clear that the Board is obligated to consider not merely the nature of symptoms manifested by a veteran’s disability but also “the level of severity.” 22 Vet.App. at 115. This is especially so in hearing loss cases because, “[u]nlike the rating schedule for hearing loss, § 3.321(b) does not rely exclusively on objective test results to determine whether a referral for an extraschedular rating is warranted.” Martinak, 21 Vet.App. at 455; cf. 38 C.F.R. §§ 4.85-4.86 & Tables VI-VII (2015) (setting forth objective evaluation criteria for hearing loss). The Board’s decision does little more than restate the appellant’s lay testimony before summarily dismissing the subjective issues, and the decision contains no discussion of the severity of the appellant’s symptoms. See Thun, supra; see also Dennis v. Nicholson, 21 Vet.App. 18, 22 (2007) (“The Court has long held that merely listing evidence before stating a conclusion does not constitute an adequate statement of reasons and bases.” (citing Abernathy v. Principi, 3 Vet.App. 461, 465 (1992))). Furthermore, the Board’s brief discussion of the functional effects caused by the appellant’s hearing disability, such as the occupational issues identified by the examiner, is wholly inadequate to facilitate judicial review. See Martinak, Allday, and Gilbert, all supra. In sum, the Court agrees with the appellant that the Board provided inadequate reasons or bases to support its determination that referral for extraschedular consideration is not warranted. Accordingly, the Court will vacate that portion of the December 2014 Board decision and remand the matter for readjudication consistent with this decision.
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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 of the 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 Secretary to provide for “expeditious treatment” of claims remanded by the Court).
III. CONCLUSION After consideration of the appellant’s and the Secretary’s pleadings, and a review of the record, the Board’s December 4, 2014, decision is VACATED and the matter is REMANDED to the Board for further proceedings consistent with this decision. DATED: June 10, 2016
Copies to:
Robert V. Chisholm, Esq.
VA General Counsel (027)

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