Veteranclaims’s Blog

August 6, 2017

Single Judge Application; Johnson v. McDonald, 762 F.3d 1362, 1365 (Fed. Cir. 2014); Collective Impact disabilities; Extraschedular; Hearing Loss;

Excerpt from decision below:

“Specifically, the Board failed to consider the collective impact of the appellant’s service-connected conditions. See Johnson v. McDonald, 762 F.3d 1362, 1365 (Fed. Cir. 2014) (noting that the Board is required to base extraschedular consideration on the “collective impact of multiple disabilities”).”

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“The Board failed to address the collective impact of the appellant’s service-connected disabilities on his ability to communicate, particularly in a workplace environment. Remand is required for the Board to address the collective impact of the appellant’s service-connected disabilities. See Johnson, supra.”

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Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 16-1825
TIMOTHY D. HOWARD, APPELLANT,
V.
DAVID J. SHULKIN, M.D.,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before GREENBERG, Judge.
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a), this action may not be cited as precedent.
GREENBERG, Judge: The appellant, Timothy D. Howard, appeals through counsel that part of an April 4, 2016, Board of Veterans’ Appeals (Board) decision that denied him entitlement to a compensable rating for bilateral hearing loss.1 Record (R.) at 2-13. The appellant argues that the Board erred by failing to ensure that the duty to assist was satisfied when it provided the appellant with inadequate medical examinations. Appellant’s Brief at 1-14. For the following reason, the Court will vacate that part of the Board’s April 2016 decision on appeal and remand the matter for readjudication.
Justice Alito noted in Henderson v. Shinseki that our Court’s scope of review in this appeal is “similar to that of an Article III court reviewing agency action under the Administrative Procedure Act, 5 U.S.C. § 706.” 562 U.S. 428, 432 n.2 (2011); see 38 U.S.C. § 7261. The creation of a special court solely for veterans, and other specified relations, is consistent with congressional
1 The Board also remanded the matter of entitlement to service connection for a bilateral foot disability, to include arthritis. This matter is not currently before the Court. See Hampton v. Gober, 10 Vet.App. 481, 482 (1997). Additionally, the Board denied the appellant service connection for an acquired psychiatric disability, to include depression and anxiety, and a compensable rating on a scheduler basis for the appellant’s service-connected bilateral hearing loss. The appellant presents no argument as to these matters and the Court deems them abandoned. See Pederson v. McDonald, 27 Vet.App. 276, 285 (2015) (en banc) (holding that, where an appellant abandons an issue or claim, the Court will not address it).
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intent as old as the Republic. See Hayburn’s Case, 2 U.S. (2 Dall.) 409, 410 n., 1 L. Ed. 436 (1792) (“[T]he objects of this act are exceedingly benevolent, and do real honor to the humanity and justice of Congress.”). “The Court may hear cases by judges sitting alone or in panels, as determined pursuant to procedures established by the Court.” 38 U.S.C. § 7254. Accordingly, the statutory command of Congress that a single judge may issue a binding decision, pursuant to procedures established by the Court, is “unambiguous, unequivocal, and unlimited.” Conroy v. Aniskoff, 507 U.S. 511, 514 (1993); see generally Frankel v. Derwinski, 1 Vet.App. 23, 25-26 (1990).
From the beginning of the Republic statutory construction concerning congressional promises to veterans has been of great concern. “By the act concerning invalids, passed in June, 1794, vol. 3. p. 112, the secretary at war is ordered to place on the pension list, all persons whose names are contained in a report previously made by him to congress. If he should refuse to do so, would the wounded veteran be without remedy? Is it to be contended that where the law in precise terms, directs the performance of an act, in which an individual is interested, the law is incapable of securing obedience to its mandate? Is it on account of the character of the person against whom the complaint is made? Is it to be contended that the heads of departments are not amenable to the laws of their country?” Marbury v. Madison, 5 U.S. 137, 164, 2 L. Ed. 60, 69 (1803).
The appellant served on active duty in the U.S. Navy from August 1970 to March 1972. R. at 2005, 2010. During service the appellant fired weapons without protecting his hearing. R. at 305.
In November 2010, the appellant filed for benefits based on service connection for bilateral hearing loss. See R. at 287, 292, 2181. In June 2011, VA granted the appellant a noncompensable rating for bilateral hearing loss. R. at 1932. The appellant appealed this decision. R. at 1903. VA determined that additional development was needed and the appellant underwent a VA examination in May 2015. R. at 301.
The May 2015 examiner noted that the appellant had difficulty hearing in crowds and hearing speech over the telephone. R. at 305. The appellant is also service connected for a bilateral knee condition that he states affects his mobility. See R. at 283, 2306.
In April 2016, the Board issued a decision denying a compensable rating for the appellant’s bilateral hearing loss. R. at 2-25. The Board also determined that extraschedular consideration was not warranted because “the rating criteria reasonably describe the Veteran’s disability level
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and symptomatology for the service-connected bilateral hearing loss disability.” R. at 15. This appeal ensued.
The Court determines that the Board failed to provide an adequate statement of reasons and bases for why its denial of a referral for extraschedular consideration. See Gilbert v. Derwinski, 1 Vet.App. 49, 56-57 (1990) (finding that Congress mandated, by statute, that the Board provide a written statement of reasons or bases for its conclusions that is adequate to enable the appellant to understand the precise basis for the Board’s decision and to facilitate review in this Court). Specifically, the Board failed to consider the collective impact of the appellant’s service-connected conditions. See Johnson v. McDonald, 762 F.3d 1362, 1365 (Fed. Cir. 2014) (noting that the Board is required to base extraschedular consideration on the “collective impact of multiple disabilities”).
The appellant is service connected for bilateral hearing loss as well as a bilateral knee condition. R. at 283. The appellant has complained that he has trouble hearing on the phone and that his knee affects his mobility. See R. at 2306, 283. The Board failed to address the collective impact of the appellant’s service-connected disabilities on his ability to communicate, particularly in a workplace environment. Remand is required for the Board to address the collective impact of the appellant’s service-connected disabilities. See Johnson, supra.
Because the Court is remanding the matter, it will not address the appellant’s remaining arguments. See Dunn v. West, 11 Vet.App. 462, 467 (1998). On remand, the appellant may present, and the Board must consider, any additional evidence and arguments. See Kay v. Principi, 16 Vet.App. 529, 534 (2002). The remanded matter is to be provided expeditious treatment. See 38 U.S.C. § 7112; see also Hayburn’s Case, 2 U.S. at 410 n. (“[M]any unfortunate and meritorious [veterans], whom Congress have justly thought proper objects of immediate relief, may suffer great distress, even by a short delay, and may be utterly ruined, by a long one . . . .” (internal quotation marks omitted)).
For the foregoing reason, and on review of the record, that part of the April 4, 2016, Board decision on appeal is VACATED and the matter is REMANDED for readjudication.
DATED: July 31, 2017
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Copies to:
Lisa J. McNair Palmer, Esq.
VA General Counsel (027)

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