Richard R. Doucette v. David J. Shulkin

UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS

NO. 15-2818

RICHARD R. DOUCETTE, APPELLANT,

V.

DAVID J. SHULKIN, M.D.,

SECRETARY OF VETERANS AFFAIRS, APPELLEE.

On Appeal from the Board of Veterans' Appeals

(Argued November 2, 2016 Decided March 6, 2017)

Shawn D. Murray, of Providence, Rhode Island, was on the brief for the appellant. Zachary

M. Stolz, of Providence, Rhode Island, argued before the Court.

Leigh A. Bradley, General Counsel; Mary Ann Flynn, Assistant General Counsel; Selket N.

Cottle, Deputy Chief Counsel; and Robert Schneider, all of Washington, D.C., were on the brief for

the appellee.

Before DAVIS, Chief Judge, and LANCE and SCHOELEN, Judges.

LANCE, Judge, filed the opinion of the Court. SCHOELEN, Judge, filed a dissenting

opinion.

LANCE, Judge: The appellant, Richard R. Doucette, appeals, through counsel, a June 1,

2015, Board of Veterans' Appeals (Board) decision that, in part, denied entitlement to an initial

compensable rating for his service-connected bilateral hearing loss.1 Record (R.) at 1-19. On

July 18, 2016, this case was submitted to a panel for decision, and on August 3, 2016, the Court

ordered the parties to file supplemental memoranda of law. The parties filed their supplemental

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The Court lacks jurisdiction over the claims for entitlement to an increased disability rating for his service-

connected chronic low back strain, currently rated as 40% disabling, and to a total disability rating based on individual

unemployability that were remanded and they will not be addressed further. See 38 U.S.C. §§ 7252(a), 7266(a); Howard

v. Gober, 220 F.3d 1341, 1344 (Fed. Cir. 2000).

memoranda on September 2, 2016. Oral argument was held on November 2, 2016.2 For the reasons

that follow, the Court will affirm the Board's June 1, 2015, decision.

I. FACTS

The appellant served on active duty in the U.S. Marine Corps from November 1972 to

August 1975. R. at 37. Shortly after his separation from service, he submitted a claim for

entitlement to service connection for hearing loss in his right ear. R. at 1360-63. A February 1976

rating decision denied his claim. R. at 1338.

In March 2004, the appellant submitted a claim for entitlement to service connection for

bilateral hearing loss, R. at 1156-57, and underwent a VA audiological examination in June 2004,

R. at 1138-39. A July 2004 rating decision denied his claim, as he had not submitted new and

material evidence sufficient to reopen his previously denied hearing loss claim. R. at 1127-32. He

submitted a timely Notice of Disagreement (NOD), R. at 1121-23, VA issued a Statement of the

Case (SOC), R. at 1086-1100, and he perfected his appeal, R. at 1084-85.

The appellant presented testimony at an October 2006 Board hearing. R. at 949-70. In a

January 2007 decision, the Board determined that he had submitted new and material evidence to

reopen his previously denied claim and remanded the claim for additional development. R. at 894-

910. The appellant underwent VA audiological examinations in October 2007, R. at 878-82,

December 2008, R. at 806-07, and July 2009, R. at 727-28.

An August 2009 rating decision granted service connection for bilateral hearing loss, rated

as noncompensable, effective March 25, 2004. R. at 715-26. The appellant filed a timely NOD.

R. at 669-70. He underwent another VA audiological examination in February 2013. R. at 640-49.

VA issued an SOC in April 2013, R. at 600-17, and he perfected his appeal the following month,

R. at 576-77. The appellant presented testimony at a Board hearing in November 2013. R. at 1401-

13.

In the June 2015 decision on appeal, the Board denied entitlement to an initial compensable

rating for service-connected bilateral hearing loss. R. at 1-19. In doing so, the Board found that a

2

Oral argument was held at the Emory University School of Law in Atlanta, Georgia. The Court extends its

appreciation to the law school for its hospitality.

2

referral for extraschedular rating was not warranted, as the appellant's symptoms and their resultant

effects are adequately contemplated by the rating criteria. R. at 12.

II. THE PARTIES' ARGUMENTS

The appellant does not challenge the Board's determination as to the proper schedular

disability rating. See Cromer v. Nicholson, 19 Vet.App. 215, 217 (2005) ("[I]ssues not raised on

appeal are considered abandoned."), aff'd, 445 F.3d 1346 (Fed. Cir. 2006). Rather, he argues that

the Board misapplied 38 C.F.R. § 3.321(b)(1) and failed to provide an adequate statement of reasons

or bases for its determination that he was not entitled to referral for extraschedular consideration.

Appellant's Brief (Br.) at 5-13; Reply Br. at 1-8. He specifically contends that the Board failed to

explain how his hearing loss disability was properly contemplated by the rating schedule and to

adequately "discuss extraschedular consideration in terms of the effects of [his] hearing loss on his

functional capacity." Appellant's Br. at 10.

The Secretary responds that the Board did not clearly err when it found that the appellant was

not entitled to referral for extraschedular consideration and that it provided an adequate statement

of reasons or bases to support its decision. Secretary's Br. at 8-27. In particular, he asserts that the

appellant fails to cite any evidence that his service-connected bilateral hearing loss presents such

an exceptional disability picture that evaluation under the rating schedule is inadequate. Id.

III. ANALYSIS

This case hinges on two issues: first, whether the schedular rating criteria for hearing loss

contemplate specific functional effects of hearing impairment; and second, the interplay between

schedular and extraschedular evaluations for hearing loss.

A. Schedular Evaluations for Hearing Loss

The 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. See 38 C.F.R. §§ 4.85 (2016), 4.86

(2016). Instead, VA evaluates service-connected hearing loss through the mechanical application

of a veteran's audiometric testing results to a rating table. See Lendenmann v. Principi, 3 Vet.App.

345, 349 (1992). Specifically, VA conducts two audiometric tests for compensation purposes: a

puretone audiometry test, which measures puretone decibel thresholds at 1000, 2000, 3000, and

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4000 Hertz, and a controlled speech discrimination test, the Maryland CNC. 38 C.F.R. § 4.85(a),

(d). Based on the results of these tests, each ear is assigned an evaluation corresponding to the level

of hearing impairment using either Table VI, which requires results from both tests, or, in certain

circumstances, Table VIa, which requires only the puretone threshold results. 38 C.F.R. §§ 4.85(b),

(c), (h), 4.86. The evaluations for each ear are combined using Table VII to determine the

appropriate disability rating. 38 C.F.R. § 4.85(e), (h).

VA first proposed the current rating criteria for hearing loss in May 1987. See 52 Fed. Reg.

17,607 (May 11, 1987). VA explained that the "new schedule provides for evaluating hearing loss

based on a combination of puretone averages and speech discrimination," measuring a veteran's

ability to hear sound at specific frequencies and volumes and to identify spoken words, respectively.

52 Fed. Reg. at 17,607. These tests would "provide[] for a more accurate representation of actual

hearing impairment by recognizing that individuals with slight to moderate decibel loss as

determined by puretone averaging may have significant impairment in speech discrimination and

vice versa." 52 Fed. Reg. at 17,607. VA adopted the revised schedule on November 18, 1987,

effective December 18, 1987. 52 Fed. Reg. 44,117, 44,117 (Nov. 18, 1987).

In April 1994, VA proposed two amendments to § 4.85 to recognize exceptional patterns of

hearing impairment that were not fully contemplated by the existing criteria. See 59 Fed. Reg.

17,295 (Apr. 12, 1994). The first proposed amendment contemplated a pattern of hearing loss where

"speech discrimination tests in a controlled setting are often near normal, [but] they do not reflect

the true extent of difficulty understanding speech in the everyday work environment, even with the

use of hearing aids." Id. at 17,296. The second proposed amendment contemplated a pattern of

hearing loss constituting "an extreme handicap in the presence of any environmental noise, [which]

often cannot be overcome by the use of hearing aids." Id. VA explained that "[t]he intended effect

of these two new provisions is to fairly and accurately assess the hearing disabilities of veterans as

reflected in a real life industrial setting." Id. VA adopted the proposed amendments on May 11,

1999, effective June 10, 1999. 64 Fed. Reg. 25,202 (May 11, 1999).

In sum, when evaluating hearing loss, VA measures a veteran's ability to hear certain

frequencies at specific volumes and to understand speech, using rating tables to correlate the results

of audiometric testing with varying degrees of disability. In light of the plain language of §§ 4.85

and 4.86, as well as the regulatory history of those sections, the Court holds that the rating criteria

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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. Thus, when a claimant's hearing loss results in an inability to hear

or understand speech or to hear other sounds in various contexts, those effects are contemplated by

the schedular rating criteria.3 However, as the rating criteria do not otherwise discuss, let alone

account for, other functional effects, such as dizziness, vertigo, ear pain, etc., the Court cannot

conclude that the rating schedule, on its face, contemplates effects other than difficulty hearing or

understanding speech.

B. Extraschedular Referral

1. General Background

As this Court has held on multiple occasions, the Board generally must consider referral for

extraschedular consideration only "'[w]here there is evidence in the record that shows exceptional

or unusual circumstances or where the veteran has asserted that a schedular rating is inadequate.'"

Yancy v. McDonald, 27 Vet.App. 484, 493 (2016) (quoting Colayong v. West, 12 Vet.App. 524, 536

(1999); see also Thun v. Peake, 22 Vet.App. 111, 115 (2008) ("When either a claimant or the

evidence of record suggests that a schedular rating may be inadequate, the Board must specifically

adjudicate the issue of whether referral for an extraschedular rating is warranted."), aff'd sub nom.

Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). In other words, although "[e]xtraschedular rating

consideration is a component of [an] appellant's claim for an increased rating," Brambley v. Principi,

17 Vet.App. 20, 23 (2003), the Board is not obligated to analyze whether referral is warranted if

"§ 3.321(b)(1) [is] neither specifically sought by [the claimant] nor reasonably raised by the facts

found by the Board," Dingess v. Nicholson, 19 Vet.App. 473, 499 (2006), aff'd, 226 Fed.Appx. 1004

(Fed. Cir. 2007); see also Robinson v. Peake, 21 Vet.App. 545, 552 (2008) (holding that the Board

is required to consider all issues raised by a claimant or reasonably raised by the evidence of record),

aff'd sub nom. Robinson v. Shinseki, 557 F.3d 1355 (Fed. Cir. 2009). Thus, although the parties

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To the extent that the appellant may disagree with how degrees of hearing impairment correspond with various

disability ratings, the Secretary's policy decisions regarding how to measure and compensate hearing loss disabilities

and to not compensate hearing loss until it reaches a specific level are decisions beyond the Court's authority to review.

See 38 U.S.C. § 7252(b) ("The Court may not review the schedule of ratings for disabilities . . . or any action of the

Secretary in adopting or revising that schedule."); see also Wingard v. McDonald, 779 F.3d 1354, 1356-57 (Fed. Cir.

2015) (discussing this Court's inability to review the schedule of ratings for disabilities); Copeland v. McDonald,

27 Vet.App. 333, 338 (2015); Prokarym v. McDonald, 27 Vet. App. 307, 311-12 (2015).

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agreed at oral argument that an extraschedular analysis was required in all cases before the Board,

see Oral Argument at 11:11-23, 26:03-27:10, 55:36-45, this Court has squarely rejected that

contention. See Yancy, 27 Vet.App. at 493-94; Smallwood v. Brown, 10 Vet.App. 93, 98 (1997).

Once the claimant or the record raises the issue of whether extraschedular referral is

warranted, the Board must determine whether the case presents an exceptional or unusual disability

picture with such related factors as frequent periods of hospitalization or marked interference with

employment. 38 C.F.R. § 3.321(b)(2016). "The determination of whether a claimant is entitled to

an extraschedular rating . . . is a three-step inquiry." Thun, 22 Vet.App. at 115 (clarifying that,

although the Court in Thun identified three "steps," they are, in fact, necessary "elements" of an

extraschedular rating). The first step in the inquiry is to determine whether "the evidence before VA

presents such an exceptional disability picture that the available schedular evaluations for that

service-connected disability are inadequate." Id.; see Sowers v. McDonald, 27 Vet.App.472, 478

(2016) ("The rating schedule must be deemed inadequate before extraschedular consideration is

warranted."). "Therefore, initially, there must be a comparison between the level of severity and

symptomatology of the claimant's service-connected disability with the established criteria found

in the rating schedule for that disability." Thun, 22 Vet.App. at 115. If the adjudicator determines

that the available schedular ratings are inadequate, the second step of the inquiry requires the

adjudicator to "determine whether the claimant's exceptional disability picture exhibits other related

factors," such as marked interference with employment or frequent periods of hospitalization. Id.

at 116. Then, if the first two steps have been satisfied, the adjudicator must refer the claim to the

Under Secretary for Benefits or the Director of the Compensation Service for a determination of

whether an extraschedular rating is warranted. Id.

"[T]he first Thun element compares a claimant's symptoms to the rating criteria, while the

second addresses the resulting effects of those symptoms." Yancy, 27 Vet.App. at 494. Although

the first and second Thun elements are interrelated, they "involve separate and distinct analyses,"

and "[i]f either element is not met, then referral for extraschedular consideration is not appropriate."

Id.

2. Extraschedular Referral for Hearing Loss

Nothing in the rating criteria for hearing loss changes these general requirements for when

referral for extraschedular consideration is warranted, and the Board is only obligated to discuss

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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. See Yancy, 27 Vet.App. at 493; Thun, 22 Vet.App.

at 115; Dingess, 19 Vet.App. at 499; Smallwood, 10 Vet.App. at 98.

To the extent that the appellant asserts that Martinak v. Nicholson, 21 Vet.App. 447 (2007),

requires the Board to address a claimant's functional impairment resulting from hearing loss,

Appellant's Br. at 9-11, his argument is misplaced. Martinak imposes neither a general requirement

on the Board to engage in an extraschedular analysis nor specific requirements on the Board once

it decides that an extraschedular discussion is warranted. Rather, Martinak held that the applicable

regulatory provisions require VA examiners to elicit information from a claimant concerning the

functional effects of his or her disability. 21 Vet.App. at 455. Although the Court noted that a VA

audiologist's description of the functional effects of a claimant's hearing loss can aid the Board in

making an extraschedular determination, nowhere did it hold that the Board has a duty to engage

in an extraschedular analysis in all hearing loss claims. See id.

Moreover, requiring an extraschedular analysis in all hearing loss cases runs contrary to the

purpose of extraschedular ratings: to recognize exceptional or unusual circumstances. Compare

38 C.F.R. § 4.1 (2016), with 38 C.F.R. § 3.321(b). Section 4.1 provides "that percentage ratings

represent as far as can practicably be determined the average impairment in earning capacity

resulting from such diseases and injuries and their residual conditions in civil occupations" and that

"the degrees of disability specified are considered adequate to compensate for considerable loss of

working time from exacerbations or illnesses proportionate to the severity of the several grades of

disability." However, § 3.321(b)(1) provides that in the "exceptional case where the schedular

evaluations are found to be inadequate," VA may approve "an extra-schedular evaluation

commensurate with the average earning capacity impairment due exclusively to the

service-connected disability or disabilities." If the Board were required to conduct an extraschedular

discussion in all hearing loss cases, that would suggest that the majority of, if not all, hearing loss

claimants are under-compensated, which would in turn suggest an issue with the schedular rating

criteria rather than the individual claimants' disability ratings. Stated otherwise, if the Board were

required to engage in an extraschedular analysis in all hearing loss cases, the average loss of earning

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capacity due to hearing loss could no longer be considered average. Such an outcome appears

contrary to the Secretary's determination as to how hearing loss should be compensated.

To be clear, although the Court holds that the rating criteria for hearing loss contemplate the

functional effects of difficulty hearing and understanding speech, the Court does not suggest that

the rating criteria contemplate all functional impairment due to a claimant's hearing loss. On the

contrary, a hearing loss claimant could provide evidence of numerous symptoms, including—for

purposes of example only—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. In general, however, the Secretary's decision to rate hearing

loss disabilities by the application of a veteran's audiometric testing results to rating tables does not

alter the circumstances under which the Board must discuss whether referral is appropriate in an

individual veteran's appeal. See Yancy, 27 Vet.App. at 493; Thun, 22 Vet.App. at 115; Dingess,

19 Vet.App. at 499; Smallwood, 10 Vet.App. at 98; see also Lendenmann, 3 Vet.App. at 349.

C. Application to the Appellant's Claim

Turning to the merits of the appellant's claim, he asserts that his hearing loss results in

difficulty in distinguishing sounds in a crowded environment, locating the source of sounds,

understanding conversational speech, hearing the television, and using the telephone. Appellant's

Br. at 8. These difficulties, however, are each a manifestation of his difficulty hearing or

understanding speech which, as the Court discussed above, is contemplated by the schedular rating

criteria for hearing loss. See ante at 4-5. These functional effects thus did not reasonably raise the

issue of whether referral for extraschedular consideration was warranted, the appellant did not assert

below that his schedular rating was inadequate, and he does not now otherwise identify any evidence

of record which reveals that his hearing loss presents an exceptional or unusual disability picture.4

Accordingly, the Court holds that the Board was not obligated to discuss extraschedular referral in

4

The Board noted that the appellant "has reported some dizziness, unsteadiness, and imbalance" but it explained

that "there is no indication in the VA treatment records or upon any VA medical examination that these symptoms are

due to his [bilateral hearing loss]." R. at 12. On appeal, the appellant neither challenges the Board's finding that his

dizziness, unsteadiness, and imbalance are not attributable to his bilateral hearing loss nor cites evidence suggesting

otherwise.

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this case. See Yancy, 27 Vet.App. at 493. Nevertheless, as the Board did provide an extraschedular

analysis, the Court will discuss it.

In its decision, the Board found that the appellant's "symptoms and their resultant effects are

contemplated adequately by th[e rating] criteria" and that his service-connected bilateral hearing loss

"disability picture is not unusual or exceptional," as "the criteria reasonably describe it." R. at 12.

In so finding, the Board explained that in October 2004, VA issued the appellant a hearing aid for

his left ear. R. at 11; see R. at 1076-77. The Board discussed a February 2013 VA medical

examination which noted that the appellant used his hearing aid on a part-time basis and that "he

reported difficulty understanding and difficulty hearing in most situations" and that "this difficulty

is worse in noisy situations." R. at 11-12; see R. at 645. The Board noted the appellant's testimony

at the October 2006 Board hearing in which he "testified that having to ask others to repeat

themselves is embarrassing, that he has to turn the television volume up, and that he does not know

where sound is coming from in noisy situations which makes them overwhelming." Id.; see R. at

955. The Board also discussed the February 2013 VA examiner's opinion, with respect to the

appellant's ability to work, that he "would have difficulty locating sounds particularly without his

hearing aid" and that he "should be able to use the telephone with his right ear and to communicate

in most situations especially if given preferential seating." R. at 12; see R. at 645. The Board

determined that "the resultant effect of [the appellant's] symptoms[,] in combination[,] is difficulty

hearing." R. at 13. Ultimately, the Board concluded that as "the rating criteria are adequate, referral

for consideration of the assignment of an extraschedular rating is not warranted." Id.

The appellant asserts that "the Board failed to offer any explanation, beyond a cursory

conclusion" that the schedular criteria were adequate, for its determination that referral for

extraschedular consideration was not warranted and cites evidence that he argues the Board failed

to address, namely his difficulty distinguishing sounds in a crowded environment, locating the

source of sounds, understanding conversational speech, hearing the television, and using the

telephone. Appellant's Br. at 8. As discussed at length above, however, the Board specifically

accounted for the appellant's resultant effects of his hearing loss, but determined that his symptoms

were not exceptional or unusual. R. at 11-13. The Board discussed the appellant's entire disability

picture and ultimately determined that, given that his disability picture was not exceptional or

unusual, the schedular rating criteria adequately contemplated his hearing loss. R. at 6-13; see

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Yancy, 27 Vet.App. at 494. The Court holds that, when read as a whole, the Board's decision is

understandable and facilitates judicial review. See id.; Thun, 22 Vet.App. at 115; see also Prickett

v. Nicholson, 20 Vet.App. 370, 375 (2006) (Board decision generally should be read as a whole).

Further, although the appellant asserts that the Board misapplied the second Thun step, his

arguments are unavailing. Appellant's Br. at 10-13. A review of the record reveals that there is no

evidence of marked interference with employment or frequent periods of hospitalization or any other

evidence that would render his disability picture as "exceptional or unusual." See 38 C.F.R.

§ 3.321(b). Moreover, given the Board's determination that the first step of Thun was not satisfied,

and assuming without deciding that the Board erred in its analysis of the second Thun step, any error

is harmless. See Shinseki v. Sanders, 556 U.S. 396, 406 (2009) (holding that the Veterans Court

must "take due account of the rule of prejudicial error"); Yancy, 27 Vet.App. at 494. The appellant

has not alleged any symptoms that can be considered exceptional or unusual for a claimant suffering

from hearing loss and does not cite evidence that the Board failed to consider. The Court holds that

the appellant has failed to demonstrate clear error in the Board's finding that referral for

extraschedular consideration was not warranted, and its decision is understandable and facilitates

judicial review. See Thun, 22 Vet.App. at 115; Hilkert v. West, 12 Vet.App. 145, 151 (1999) (en

banc) ("An appellant bears the burden of persuasion on appeals to this Court."), aff'd per curiam,

232 F.3d 908 (Fed. Cir. 2000) (table); see also 38 U.S.C. § 7104(d)(1); Allday v. Brown, 7 Vet.App.

517, 527 (1995).

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D. Other Matters

Finally, although the Court acknowledges the limits on its ability to review the content of

the rating schedule, it will offer a few additional comments regarding VA's evaluation of hearing

loss. The rating criteria for hearing loss operate in a manner unique among the other disabilities in

the rating schedule by mechanically applying test results to a table without expressly listing any

specific symptoms or functional effects. This distinctiveness has led to confusion and inconsistent

results for both veterans suffering from hearing loss and adjudicators evaluating their claims.

Notwithstanding the Court's holding that the rating criteria for hearing loss contemplate the

functional effects of decreased hearing and difficulty understanding speech in an everyday work

environment, the lack of explicit symptoms in the rating criteria complicates VA's evaluation and

the Court's review of hearing loss cases. The Court is thus compelled to question whether it is time

for VA to revisit this portion of the rating schedule in a manner addressing the concerns of the

appellant, the majority, and our dissenting colleague. If the Secretary were to revise the rating

criteria for hearing loss and provide additional guidance on what symptoms the rating criteria

contemplate, it could only improve agency adjudication and judicial review of hearing loss claims.

IV. CONCLUSION

Upon consideration of the foregoing, the Board's June 1, 2015, decision is AFFIRMED.

SCHOELEN, Judge, dissenting: At the outset, I agree with the majority's assessment that

the Board is only required to conduct an extraschedular analysis when the issue is reasonably raised

by the parties or by the record. See Yancy v. McDonald, 27 Vet.App. 484, 493 (2016) (noting that

the Board is required to consider referral for extraschedular consideration "[w]here there is evidence

in the record that shows exceptional or unusual circumstances or where the veteran has asserted that

a schedular rating is inadequate" (citing Colayong v. West, 12 Vet.App. 524, 536 (1999))); see also

Thun v. Peake, 22 Vet.App. 111, 115 (2008) ("When either a claimant or the evidence of record

suggests that a schedular rating may be inadequate, the Board must specifically adjudicate the issue

of whether referral for an extraschedular rating is warranted."), aff'd sub nom. Thun v. Shinseki,

572 F.3d 1366 (Fed. Cir. 2009). However, I write separately because I believe that the rating criteria

are inadequate to contemplate a veteran's functional effects and entire disability picture5, and I

believe the Board in this case provided an inadequate statement of reasons or bases regarding its

refusal to refer the hearing loss claim for an extraschedular evaluation.

The fundamental problem arises because the rating schedule for hearing loss does not explain

what the effects of the match of puretone threshold with speech discrimination should be. 38 C.F.R.

§§ 4.85 (2016), 4.86 (2016). Sections 4.85 and 4.86 consist of tables designed to identify different

levels of hearing loss in a controlled environment, but the tables do not address the functional effects

or severity of a veteran's hearing loss. Instead, the rating schedule produces only Roman numerals.

Although the rating schedule undoubtedly contemplates hearing loss, see Lendenmann v. Principi,

3 Vet.App. 345, 349 (1992), it is impossible for the Court to interpret with any particularity the

severity or functional effects of a veteran's hearing loss simply by seeing, for example, Roman

numeral "IV."

VA attempts to solve this quandary by pointing to the 2002 VA Clinician's Guide and the

legislative history of §§ 4.85 and 4.86. As the Secretary himself notes, the Clinician's Guide is an

instructive, but not legally binding, document that gives each examiner discretion as to how to

conduct an examination in an individual case. Secretary's Supplemental Brief at 13-14; see Allin

v. Brown, 6 Vet.App. 207, 214 (1994); VA CLINICIAN'S GUIDE, § 1.1 (2002) ("The Clinician's Guide

and any of its parts (worksheets) are intended solely as a guide for clinicians, and it is not legally

binding on a clinician to perform all portions of the examination protocol."). Moreover, the Board

does not cite the Clinician's Guide anywhere in the decision on appeal, the Court cannot locate a

more recent (post-Martinak) version of the guide, and VA does not indicate if or how the hearing

loss provisions of the guide are implemented by VA examiners. Accordingly, the Clinician's Guide

is of minimal persuasive value and cannot add anything substantive to the regulatory scheme.

Similarly, the regulatory history of §§ 4.85 and 4.86 does not describe the functional effects or

5

Although the majority highlights this Court's statutory prohibition on reviewing the "schedule of ratings for disabilities

. . . or any action of the Secretary in adopting or revising that schedule," n.3 (quoting 38 U.S.C. 7252(b)), supra, I would

simply note that the appellant does not ask the Court to review the rating schedule for its adequacy. Rather, the

appellant's argument regarding extraschedular consideration requires the Court to review the severity and

symptomatology of his hearing condition that the rating schedule does not contemplate. See Thun, 22 Vet.App. at 115;

Colayong, 12 Vet.App. at 536.

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symptomatology contemplated by the regulations because the regulations themselves are devoid of

functional effects and symptoms.

Under this Court's holding in Thun, to determine whether the schedular rating criteria

adequately contemplate the veteran's disability picture, the Board must compare "the level of

severity and symptomatology of the claimant's service-connected disability with the established

criteria found in the rating schedule for that disability." Thun, 22 Vet.App. at 115 (emphasis added).

If an exceptional disability picture is found, the regional office or Board must determine whether

related factors exist, such "as marked interference with employment or frequent periods of

hospitalization as to render impractical the application of the regular schedular standards." 38 C.F.R.

§ 3.321(b)(1); Thun, 22 Vet.App. at 116. Because 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 as Thun requires when determining whether the schedular rating criteria

adequately contemplate a veteran's disability picture.

It is precisely for this reason that the Court held in Martinak that "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). In formulating its holding, the Court explicitly

noted internal VA guidance that "reaffirmed the need for VA audiologists to describe the effect of

a hearing disability on a claimant's occupational functioning and daily activities." Id. (citing

Revised Disability Examination Worksheets, VA Fast Letter 07-10 (Apr. 24, 2007) (on file with

VA)). The Court further reasoned that "[t]he policy of describing the results of all tests conducted

makes sense, particularly in the context of the extraschedular rating provision," and 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." Id. (emphasis added).

As the majority correctly states, Martinak only directs VA audiologists to note the functional

effects of a veteran's hearing loss, and not the Board; however, nothing in Martinak absolves the

Board of its responsibility to provide an adequate statement of reasons or bases in its decision

sufficient to facilitate judicial review. 38 U.S.C. § 7104(d)(1); see Allday v. Brown, 7 Vet.App. 517,

527 (1995); Gilbert v. Derwinski, 1 Vet.App. 49, 55-57 (1990). Once adjudicators have functional-

effects information rendered by VA examiners, they must address it. See Caluza v. Brown,

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7 Vet.App. 498, 506 (1995) (noting that, to comply with its reasons or bases requirement, the Board

must provide the reasons for its rejection of any material evidence favorable to the claimant), aff'd

per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table). Despite this duty to address the information,

§§ 4.85 and 4.86 provide no actual guidance on how to analyze the information.

Therefore, no matter how extensive the Board's statement of reasons or bases is, I do not

believe that that statement can ever sufficiently fill in the gaps in the rating schedule. The majority

fails to explain how the Board could review the functional effects of hearing loss and match those

functional effects with nonexistent criteria. If the Board were permitted to do so, their analysis

would be tantamount to a Colvin violation. Colvin v. Derwinski, 1 Vet.App. 171, 172 (1991)

(holding that the Board "must consider only independent medical evidence to support [its] findings

rather than provide [its] own medical judgment in the guise of a Board opinion"); see Kahana v.

Shinseki, 24 Vet.App. 428, 435 (2011) ("[U]nder Colvin, when a Board inference results in a

medical determination, the basis for that inference must be independent and it must be cited."). A

regulatory mechanism already exists to fill the gap between functional effects listed and functional

effects contemplated by the rating schedule – extraschedular evaluation. Cf. Johnson v. McDonald,

762 F.3d 1362, 1366 (Fed. Cir. 2014) (stating that "[38 C.F.R.] § 3.321(b)(1) performs a gap-filling

function").

For these reasons, I would remand the case for the Board to provide an adequate statement

of reasons or bases regarding its refusal to refer the hearing loss claim for an extraschedular

evaluation. Therefore, I respectfully dissent.

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