Doucette v. Shulkin, docket no. 15-2818 (Mar. 6, 2017)
HELD: “[T]he rating criteria for hearing loss contemplate the functional effects of decreased hearing and difficulty understanding speech in an everyday work environment,” but do not explicitly contemplate “other functional effects, such as dizziness, vertigo, ear pain, etc.” – and the Board does not have to assess whether referral for extraschedular consideration is warranted unless this is raised by the claimant or the evidence of record.
SUMMARY: Veteran Richard Doucette appealed the Board’s denial of a compensable disability rating for his hearing loss, arguing that the Board misapplied 38 C.F.R. § 3.321(b)(1) and failed to adequately explain its determination that referral for extraschedular consideration was not warranted.
The Court first noted that VA’s “rating criteria for hearing loss, unlike a majority of the conditions in VA’s rating schedule, do not list any specific symptoms or functional effects.” *3 (citing 38 C.F.R. §§ 4.85, 4.86). Instead, VA rates this condition based on a “mechanical application of a veteran’s audiometric testing results to a rating table.” The testing includes puretone audiometry and speech discrimination that “measure a veteran’s ability to hear certain frequencies at specific volumes and to understand speech.” *4. VA’s rating tables “correlate the results of audiometric testing with varying degrees of disability.” The Court thus held that VA’s “rating criteria for hearing loss contemplate 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.” *4-5.
The Court determined, however, that the rating criteria do not account for other functional effects, “such as dizziness, vertigo, ear pain, etc.” – and further held that the rating schedule did not explicitly contemplate “effects other than difficulty hearing or understanding speech.” *5. Nevertheless, the Court found that referral for extraschedular consideration was not warranted in all hearing loss cases, and that the “Board is only obligated to discuss extraschedular referral for hearing loss when there is evidence in the record which reveals that the appellant’s hearing loss presents exceptional or unusual circumstances or where the appellant has asserted that a schedular rating is inadequate.” *6-7.
The Court reiterated that it was not suggesting “that the rating criteria contemplate all functional impairment due to a claimant’s hearing loss.” The Court pointed out that “a hearing loss claimant could provide evidence of numerous symptoms,” such as “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.” *8.
The Court found that Mr. Doucette’s hearing difficulties were “contemplated by the schedular rating criteria for hearing loss” and that he had not asserted that his schedular rating was inadequate. The Court thus affirmed the Board’s determination that referral for extraschedular consideration was not warranted. *9.
In dicta, the Court commented that the rating criteria for hearing loss “has led to confusion and inconsistent results for both veterans suffering from hearing loss and adjudicators evaluating their claims,” and questioned “whether it is time for VA to revisit this portion of the rating schedule.” *11.
Judge Schoelen dissented. Although she agreed with the majority that referral for extraschedular consideration was not warranted unless it was raised by the claimant or the record, she believes that the rating criteria for hearing loss “are inadequate to contemplate a veteran’s functional effects and entire disability picture.” She stated that “[b]ecause no symptoms are listed in the rating schedule for hearing loss, there is no way to adequately compare the ‘level of severity and symptomatology’ to the rating criteria,” which is required in determining whether referral for extraschedular consideration is warranted. She pointed out the Court’s prior holding that stated “[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.” * 13 (quoting Martinak v. Nicholson, 21 Vet.App. 447, 455 (2007).
Advocacy note: Even though VA is required by law to construe a claimant’s submissions liberally and assist in developing a claim – and even though VA adjudicators are required to understand the intricacies of VA law and its rating schedule – this decision emphasizes (or maybe even adds to?) the claimant’s burden in establishing entitlement to an appropriate disability rating. One significant flaw in this decision is that it presumes that claimants understand the meaning of “referral for extraschedular consideration” and how to request it, which is a pretty big presumption to impose on claimants seeking benefits in an allegedly claimant-friendly system. In light of this decision, claimants should clearly identify all symptoms related to hearing loss – and, if the rating schedule is not adequately reflecting the level of disability, explain why and request referral for extraschedular consideration.