Rossy: Extraschedular consideration for hearing loss not warranted
/Rossy v. Shulkin, 29 Vet.App. 142 (Dec. 13, 2017)
HELD: When the only hearing loss problem alleged by a claimant is “difficulty understanding conversations,” referral for extraschedular consideration is not warranted since that complaint is type of symptom and functional effect that is contemplated and compensated by VA’s rating schedule.
SUMMARY: Jose Rossy served in the U.S. Army from 1949 to 1952. More than 50 years later, he applied for and was granted service connection for bilateral hearing loss, rated 0%. His appeal for a compensable rating was stayed at the Court, pending the outcome of Doucette v. Shulkin, 28 Vet.App. 366 (2017).
In Doucette, the Court held that the rating criteria for hearing loss contemplate and compensate for “the functional effects of hearing loss, namely difficulty understanding speech and the inability to hear sounds in various contexts.” Doucetteleft open “the possibility that extraschedular consideration for hearing loss might be warranted by other symptoms or functional effects,” but held that “extraschedular referral is not reasonably raised when complaints of difficulty hearing are the only complaints of record.”
Because Mr. Rossy’s complaints were “within the type of symptoms and functional effects contemplated and compensated by VA’s schedular rating criteria,” the Court affirmed the Board’s denial of referral for extraschedular consideration.
The Court also concluded that extraschedular referral was not warranted based on the combined effects of Mr. Rossy’s various service-connected conditions because this issue was not reasonably raised by the record or the appellant.
