UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
No. 16-0720
JOSE R. ROSSY, APPELLANT,
V.
DAVID J. SHULKIN, M.D.,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
On Appeal from the Board of Veterans' Appeals
(Decided December 13, 2017)
Michael S. Just, of Providence, Rhode Island, was on the brief for the appellant.
Meghan Flanz, Interim General Counsel; Mary Ann Flynn, Chief Counsel; James B.
Cowden, Deputy Chief Counsel; and Nicholas R. Esterman, all of Washington, D.C., were on the
brief for the appellee.
Before BARTLEY, GREENBERG, and TOTH, Judges.
TOTH, Judge, filed the opinion of the Court. GREENBERG, Judge, filed a dissenting
opinion.
TOTH, Judge: Jose R. Rossy served in the Army from June 1949 to October 1952. The
only issue before the Court concerns his service-connected bilateral hearing loss. In a December
2015 decision, the Board denied a compensable schedular rating for that condition, as well as a
referral for a rating based on extraschedular consideration. He appeals, arguing that the Board
erred in denying extraschedular referral because it wrongly concluded that the applicable schedular
rating criteria contemplated the functional effects of his hearing loss. After he filed his opening
brief, we decided Doucette v. Shulkin,
28 Vet. App. 366 (2017), which affirmed a Board decision
denying extraschedular referral when the only functional effects alleged were aspects of hearing
loss. Concluding that Doucette directs the outcome here, we likewise affirm.
I. BACKGROUND
More than 50 years after leaving service, Mr. Rossy sought disability compensation for
bilateral hearing loss. During development of the claim, he underwent numerous VA audiology
examinations and submitted a private audiology report. These documents reflect that the veteran's
main complaint relating to his hearing loss was not being able to hear conversations, especially in
noisy or crowded places, including difficulty hearing his wife. Based on audiology test results, the
VA regional office eventually granted service connection for left and right ear sensorineural
hearing loss but assigned a noncompensable evaluation. Dissatisfied with this rating, Mr. Rossy
appealed to the Board.
In the December 2015 decision on appeal, the Board denied a compensable schedular rating
for bilateral hearing loss. On the question of a rating on an extraschedular basis, the Board
determined that referral was unwarranted because his hearing loss was "adequately contemplated
by the applicable diagnostic criteria." R. at 12. Through an attorney, Mr. Rossy appealed the
portion of the Board decision regarding hearing loss to this Court.1
After his opening brief was filed, the Court granted the Secretary's motion to stay
proceedings pending a panel decision in Doucette. Following issuance of the Doucette decision,
the Secretary filed his brief, urging us to affirm the Board's denial. Despite being given a filing
extension, Mr. Rossy did not submit a reply brief, so we have no argument from him challenging
Doucette's reasoning or applicability here.
II. ANALYSIS
Although this case was submitted to a panel for resolution, we need not tread any new
ground in reaching a proper disposition. Congress authorized the Secretary to "adopt and apply a
schedule of ratings of reductions in earning capacity from specific injuries or combination of
injuries. . . . based, as far as practicable, upon the average impairments of earning capacity resulting
from such injuries in civil occupations." 38 U.S.C. § 1155. VA responded in the hearing-loss
context by promulgating two tables that assign a Roman numeral value to each ear based on
hearing loss reflected by controlled speech discrimination and puretone audiometry tests or, in
certain situations, by a puretone audiometry test alone; a third table prescribes the appropriate
disability rating to assign (0 percent to 100 percent) based upon the resulting Roman numeral
values. See 38 C.F.R. § 4.85 & Tables VI, VIa, and VII (2017). A separate regulatory section
1
The Board remanded six other issues, including a higher initial rating for post-traumatic stress disorder
(PTSD). The Court has no jurisdiction over those matters. See Warren v. McDonald,
28 Vet. App. 214, 215 n.1 (2016).
The Board also granted an earlier effective date of February 6, 2008, for the award of disability compensation for
PTSD. Because Mr. Rossy makes no argument regarding the PTSD effective date, the Court will dismiss the appeal
as to that matter. See Pederson v. McDonald,
27 Vet. App. 276, 281-85 (2015) (en banc).
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addresses how to evaluate "exceptional patterns of hearing impairment," which arise when the
puretone threshold is 55 or more decibels at each of 4 specified frequencies. 38 C.F.R. § 4.86
(2017). This Court has no authority to consider whether the schedular criteria for measuring or
compensating hearing loss is the optimal, or even an adequate, method.
Doucette, 28 Vet. App. at
369 n.3; see 38 U.S.C. § 7252(b) ("The Court may not review the schedule of ratings for disabilities
adopted under section 1155 . . . or any action of the Secretary in adopting or revising that
schedule.").
Notwithstanding the specific schedular rating criteria prescribed for hearing loss and other
disabilities, the Secretary has recognized that there might be "exceptional" cases when "schedular
evaluations are found to be inadequate." 38 C.F.R. § 3.321(b)(1) (2017). In a case that presents
"an exceptional or unusual disability picture with such related factors as marked interference with
employment or frequent periods of hospitalization," the Board must refer the matter to certain VA
officials for a determination of whether and to what extent an extraschedular rating is appropriate.
Id. The Board is required to consider whether a referral for extraschedular consideration is
warranted in two situations: where it is expressly raised by a claimant or reasonably raised by the
record. See, e.g., Colayong v. West,
12 Vet. App. 524, 536 (1999). Either way, the analysis is the
same. Since the Board did address the issue in its decision, the relevant inquiry here is whether it
committed any error in determining that referral was unwarranted.
Generally, the first element or step in an extraschedular analysis is for the Board to compare
the severity and type of symptoms manifested by a service-connected disability with the schedular
rating criteria for that disability. Thun v. Peake,
22 Vet. App. 111, 115 (2008). In Thun, we
described this step as an inquiry into whether "the claimant's disability picture is contemplated by
the rating schedule."
Id. (citing VA Gen. Coun. Prec. 6-1996 (Aug. 16, 1996)).
In Doucette, the Court addressed how to conduct an extraschedular analysis—specifically,
the first Thun inquiry—in the context of a hearing loss claim. We held that the rating criteria for
§§ 4.85 and 4.86 contemplate, and thus compensate for, the functional effects of hearing loss,
namely difficulty understanding speech and the inability to hear sounds in various contexts.
Doucette, 28 Vet. App. at 369. While leaving open the possibility that extraschedular consideration
for hearing loss might be warranted by other symptoms or functional effects associated with that
disability, we further held that extraschedular referral is not reasonably raised when complaints of
difficulty hearing are the only complaints of record.
Id. at 371. To hold otherwise, the Court
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reasoned, would allow the exception to swallow the rule by requiring the Board to conduct an
extraschedular analysis as a matter of course in every hearing loss claim, an outcome that would
be "contrary to the Secretary's determination as to how hearing loss should be compensated."
Id.
Accordingly, we found that Mr. Doucette's complaints—"difficulty in distinguishing sounds in a
crowded environment, locating the source of sounds, understanding conversational speech,
hearing the television, and using the telephone"—were symptoms or functional effects
contemplated by the rating criteria for hearing loss and concluded that the first Thun element hadn't
been met.
Id. at 371-72.
We see no basis to distinguish Mr. Rossy's case from Mr. Doucette's. Here, the only hearing
loss problem alleged by Mr. Rossy was difficulty understanding conversations, particularly in
noisy or crowded circumstances. But absent other factors, Doucette tells us that this sort of
complaint is squarely within the type of symptoms and functional effects contemplated and
compensated by VA's schedular rating criteria. The Board denied referral for extraschedular
consideration on that basis, and we discern no error in that denial. The contrary arguments
presented in the veteran's opening brief are foreclosed by Doucette.
Finally, for the sake of completeness, we also conclude that referral for extraschedular
consideration was not warranted based on the combined effects of Mr. Rossy's service-connected
disabilities. The Federal Circuit held that the "plain language of § 3.321(b)(1) provides for referral
for extra-schedular consideration based on the collective impact of multiple disabilities." Johnson
v. McDonald,
762 F.3d 1362, 1365 (Fed. Cir. 2014).2 But that holding did not alter the established
rule that the Board need only address issues either explicitly raised by a claimant or reasonably
raised by the record. Yancy v. McDonald,
27 Vet. App. 484, 495 (2016). In this case, Mr. Rossy's
attorney did not raise a collective-impact argument in his opening brief. Such omission by itself
constitutes abandonment of that argument on appeal. See Mitchell v. Shinseki,
25 Vet. App. 32, 38
(2011). Moreover, even upon review of the complete record before the agency filed in this Court,
we find no indication that the veteran explicitly asserted that the combined effects of bilateral
hearing loss and post-traumatic stress disorder—his only other service-connected condition—
required extraschedular consideration. Nor was the issue reasonably raised by the record before
2
We note that, in response to Johnson, the Secretary recently published a final rule amending § 3.321(b)(1)
to prohibit extraschedular consideration based on the combined effects of more than one service-connected disability.
Extra-Schedular Evaluations for Individual Disabilities, 82 Fed. Reg. 57,830 (Dec. 8, 2017). However, because this
amendment does not take effect until January 8, 2018, it is inapplicable here.
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the Board. (For examples of cases where we've found the collective impact issue reasonably raised
by the record, see
Yancy, 27 Vet. App. at 496, and Cantrell v. Shulkin,
28 Vet. App. 382, 394-95
(2017).)
In sum, because Mr. Rossy has failed to demonstrate any Board error regarding his bilateral
hearing loss, the Court will affirm the Board decision regarding that claim. See Cacciola v. Gibson,
27 Vet. App. 45, 57-58 (2014).
III. CONCLUSION
Having considered the parties' briefs, applicable law, and record before the Board, we
AFFIRM the December 22, 2015, Board decision as to bilateral hearing loss and DISMISS the
balance of the appeal.
GREENBERG, Judge, dissenting: I dissent. The appellant is service connected for PTSD
and hearing loss, and I believe the record reasonably raised a collective impact issue that the Board
failed to address. See
Johnson, 762 F.3d at 1365; see also
Yancy, 27 Vet. App. at 495. The appellant
has difficulties communicating because of his hearing disability and he reported during a medical
examination that his PTSD causes feelings of detachment and estrangement from others. R. at 512,
353, 318, 742. I would have remanded the matter to allow the Board to address this issue in the
first instance.
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