Doucette v. Shulkin
2017 U.S. Vet. App. LEXIS 319
| Vet. App. | 2017Background
- Veteran served in the Marine Corps (1972–1975) and pursued service connection for hearing loss; initial claims in 1976 and 2004 led to eventual grant of service connection for bilateral hearing loss in 2009 at a noncompensable rating (effective 2004).
- Veteran underwent multiple VA audiological exams (2004–2013) and testified at Board hearings; he reported difficulty understanding speech, locating sounds, and trouble in noisy environments.
- The June 1, 2015 Board decision denied an initial compensable rating and found extraschedular referral under 38 C.F.R. § 3.321(b)(1) was not warranted because the schedular criteria adequately contemplated his functional hearing deficits.
- On appeal the veteran argued the Board misapplied § 3.321(b)(1) and failed to provide adequate reasons or bases for declining extraschedular referral, contending the Board did not analyze functional effects of his hearing loss.
- The Secretary defended the Board’s conclusion, arguing the evidence did not show an exceptional disability picture beyond the rating criteria.
- The Court affirmed the Board, holding that the hearing-loss rating criteria contemplate difficulty hearing and understanding speech (as measured by audiometry and speech discrimination), that the veteran’s reported effects were within those contemplated effects, and that extraschedular referral was therefore not required.
Issues and Key Cases Cited
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the Board erred by failing to refer for extraschedular consideration under 38 C.F.R. § 3.321(b)(1) | Doucette: Board failed to explain how rating schedule contemplates his functional effects and did not adequately consider extraschedular referral | Secretary: Record does not show an exceptional or unusual disability picture; schedular criteria and audiometric testing contemplate the veteran’s functional hearing deficits | Affirmed: No extraschedular referral required because the veteran’s difficulties (hearing/understanding speech, trouble in noise) are contemplated by §§ 4.85/4.86 testing and tables; Board’s reasons are adequate |
| Whether the rating criteria for hearing loss contemplate functional effects beyond pure test results | Doucette: Rating tables lack explicit functional criteria, so Board must analyze functional effects and may need to refer extraschedularly | Secretary: Audiometry and speech discrimination tests and the rating tables were designed to reflect real-world functional hearing loss | Held: The Court reads §§ 4.85/4.86 and their history to show they contemplate difficulty hearing and understanding speech in everyday settings, but not nonhearing effects (dizziness, pain) |
| Scope of Martinak (requirement to describe functional effects) | Doucette: Martinak requires Board to address functional impairment when deciding extraschedular referral | Secretary: Martinak requires examiners to elicit functional effects but does not impose an extraschedular duty in every hearing-loss case | Held: Martinak obligates VA examiners to report functional effects; it does not require the Board to conduct extraschedular analyses in every hearing-loss claim absent evidence raising that issue |
| Adequacy of Board’s reasons or bases regarding both Thun steps | Doucette: Board’s analysis was cursory and failed to compare veteran’s symptomatology to schedular criteria or show whether employment/hospitalization effects exist | Secretary: Board addressed the record, discussed exams and testimony, and reasonably concluded the disability picture was not exceptional | Held: Board’s statement, read as a whole, was adequate; first Thun element not met, any second-element error harmless absent first-element showing |
Key Cases Cited
- Thun v. Peake, 22 Vet.App. 111 (establishes three-step extraschedular inquiry and requirement to compare symptomatology to schedular criteria)
- Yancy v. McDonald, 27 Vet.App. 484 (Board must consider extraschedular referral only when record or claimant raises it)
- Martinak v. Nicholson, 21 Vet.App. 447 (VA audiologists must describe functional effects of hearing disability in reports)
- Lendenmann v. Principi, 3 Vet.App. 345 (describes mechanical application of audiometric results to rating tables)
- Colayong v. West, 12 Vet.App. 524 (Board must consider extraschedular referral when evidence or veteran raises inadequacy of schedular rating)
- Shinseki v. Sanders, 556 U.S. 396 (standard on harmless error and prejudicial error)