Dudley A. King v. David J. Shulkin
16-2959
| Vet. App. | Dec 21, 2017Background
- King appeals a June 1, 2016 Board decision denying a compensable rating for bilateral hearing loss and denying extraschedular referral.
- The Board held that the rating criteria adequately described his disability and that higher ratings were available for more severe symptoms, thus denying extraschedular referral.
- King served in the U.S. Army (1969–1971) with Vietnam service; he previously received a noncompensable hearing loss rating.
- VA examinations in 2009 and 2011 documented significant functional effects, including difficulty hearing and balance issues tied to separate conditions.
- The 2014 Board remand noted possible worsening, but the 2016 decision relied on the view that daily life impact was contemplated by the schedular criteria.
- The court remands to consider whether the Board erred in applying Thun and § 3.321(b)(1) and whether a separate extraschedular referral is warranted.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Role of higher schedular ratings in extraschedular analysis | King argues higher schedular ratings cannot defeat extraschedular referral. | King contends the Board properly considered rating criteria; higher ratings are relevant only for schedular purposes. | Availability of higher schedular ratings is irrelevant to extraschedular referral. |
| Adequacy of the rating schedule to contemplate functional effects | King asserts the schedule does not fully capture functional effects like social isolation and daily-life interference. | Secretary maintains the rating schedule contemplates functional effects and additional effects are not outside it. | The court remands to assess whether the first Thun element was satisfied and whether additional effects fall outside the schedule. |
| Consideration of the entire disability picture in extraschedular referral | King argues the Board failed to consider the combined effects of all service-connected disabilities. | Secretary argues the entire disability picture is not required if effects are already attributed to other conditions or contemplated by schedular criteria. | Remand to evaluate whether the Board properly considered related factors and overall impairment. |
Key Cases Cited
- Lockheed Corp. v. Widnall, 113 F.3d 1225 (Fed. Cir. 1997) (proper interpretation of regulation language and plain meaning governs agency analysis)
- United States v. U.S. Gypsum Co., 333 U.S. 364 (Supreme Court 1948) (clear standard for reviewing agency fact findings and statutory interpretation)