# Doucette v. Shulkin

> United States Court of Appeals for Veterans Claims · March 6, 2017 · 28 Vet. App. 366

URL: https://www.frixlaw.com/law-library/cases/8167814

## Case

- **Full name:** Richard R. DOUCETTE v. David J. SHULKIN, M.D., Secretary of Veterans Affairs
- **Court:** United States Court of Appeals for Veterans Claims
- **Decided:** March 6, 2017
- **Citations:** 28 Vet. App. 366; 2017 U.S. Vet. App. LEXIS 319; 2017 WL 877340
- **Precedential status:** Published
- **Opinion:** Dissent by Schoelen
- **Judges:** Davis, Lance, Schoelen
- **Cited by:** 168 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/8167814

## How later opinions describe it (automated extraction)

- holding that "the 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 . . . an inabi…
- holding that criteria for hearing loss, which are based solely on numerical results of audiological testing, contemplate the functional effects of hearing loss in "various contexts," as these are "precisely the effects that VA's audiometric tests are designed to measure"
- holding that “the rating criteria for hearing loss contemplate functional effects of decreased hearing and difficulty understanding speech in an everyday work environment”—which “are precisely the effects that VA’s audiometric tests are designed to measure”
- finding that the rating criteria for hearing loss contemplate the functional effects of decreased hearing and difficulty understanding speech in an everyday work environment, as these are the effects that VA's audiometric tests are designed to measure
- explaining that the Board had no obligation to analyze whether referral is warranted for extraschedular consideration if an extraschedular rating is not specifically sought by the claimant or reasonably raised by the facts found by the Board

## Opinion text

SCHOELEN, Judge,
dissenting:
At the outset, I agree with the majority’s assessment that the Board is only required to conduct an extraschedular *374 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.”), affd 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 picture 5 , 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 sympto-matology 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 *375 criteria adequately contemplate the veteran’s disability picture, the Board must compare “the level of seventy and sympto-matology 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 symptoma-tology” 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 “[ujnlike the rating schedule for hearing loss, § 3.321(b) does not rely exclusively on objective test results to determine whether a referral for an ex-traschedular rating is warranted.” Id. (emphasis added).
As the majority correctly states, Marti-nak 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, 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 be *376 tween 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.
. 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 extraschedu-lar 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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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/8167814. Public record. Not legal advice.