Have you ever felt like the VA just doesn’t “get” what you’re saying?

If so, you’re not alone – we have talked about the “Tower of Babel” effect that seems to occur with great frequency in VA Claims decisions.

What is the Tower of Babel effect?  

That’s where you say one thing, and the VA understands it to mean something completely different.

This recently happened to a Veteran in his claim for an extra-schedular rating – he thought that his VA disability hearing loss payments were not enough.

What I like about this case is that – even though it’s a single judge decision by the Veterans Court – it clearly demonstrates that the Court is becoming as frustrated as Veterans.

So, let’s jump in – I’m not going to try not to give you a bunch of legalese….but I have to warn you, this is a complex area of the law.  When in doubt  – get help (or at least find out how to find the best help for YOUR VA disability hearing loss claim.)

I’m going to tell you what happened in this case, how it turned out, and – most important – how you can USE the logic of this Court decision in your own VA Claim.

First and Foremost – What on Earth  is an Extra-Schedular Rating?

The Veteran in this case sought an “extra-schedular” rating – the compensation he was receiving for his VA Disability hearing loss was not adequate enough to compensate the real symptoms and limitations he was facing.

Extra-schedular ratings are governed by 38 CFR 3.321(b) – they are NOT the same as an extra-schedular TDIU rating.  The VA – and more than one VSO out there – often confuses these 2 types of claims.

We’ve talked about extra-schedular ratings before – they are 1 of the 5 ways that a Veteran can get to a 100% total VA disability rating.

But for those that don’t remember – or for those of you that are new here – an extra schedular rating is a 100% rating given to a Veteran when the VA’s Impairment Rating Schedule does not adequately compensate the Veteran for the way a specific  disability is impacting their lives.

(Don’t confuse this with appealing the assignment of an incorrect rating….extra-schedular  ratings apply when the Impairment Rating assigned is legally correct, but inadequate.  Increased rating appeals and claims are to be used when the VA gets the initial rating wrong, or the Veteran’s condition changes and gets worse.) 

This Veteran’s Case for an Extra Schedular Rating for VA Disability Hearing Loss.

The Veteran – a field artillery guy like myself – had bilateral hearing loss that the VA service-connected. Even though his hearing loss had a profound impact on his ability to function in the world, the VA assigned him a 0% rating.

(VA bilateral hearing loss rating tables are based on low-frequency hearing loss in a audiological test –  in my opinion, they don’t adequately consider the fact that one can still have non-compensable hearing loss but still have problems functioning in the world with that hearing loss.)

So the Veteran appealed.  Ultimately, the case worked its way up to the BVA and CAVC.  The VA – and the BVA – focused on the impact the hearing loss had on the Veteran’s employability; this factor was largely irrelevant to what the Veteran claimed.

The Veterans Court let the VA know that they used the wrong analysis – again – in deciding an extra schedular rating.  The leading case in this area is Thun v Peake, 22 Vet. App 111 (2008).  The Thun case says that when the Veteran claims an extra-schedular rating under 38 CFR 3.321(b), it must perform the following analysis:

1) First, compare the level of severity of the Veteran’s actual symptoms and limitations with the established criteria in the VA Impairment Ratings Table.

2) Second, if the Impairment Rating schedule fails to consider the symptoms and limitations that the Veteran is experiencing in reality, the VA (or the BVA) is to consider whether those symptoms and limitations include what are called “related” factors:  marked interference with employment, and frequent hospitalizations.

3) Third, if those “related factors” exist, the claim must be referred to the Under Secretary for Benefits or the Director of VA Compensation Service for a decision as to the proper rating to assign.

How Can You Use the Thun Case to Improve YOUR VA Claim? 

Most times, the VA doesn’t follow the Thun steps.

To bring Thun into “play”, you have to have a claim that the impairment rating the VA assigned does not adequately consider the limitations you face in your life with that disability.  This type of claim can be added in  ANY claim for rating of any disability that is related to military service.

1) If your disability has symptoms and limitations that are not discussed in the VA Impairment Ratings Table, or the rating does not adequately compensate you due to a unique disability picture, be sure to tell the VA you want them to consider a claim for an extra-schedular rating under 38 CFR 3.321(b).

2) If the VA does not analyze your claim exactly as laid out above – or if they do not refer your case to the proper person for decision (see Thun Step #3) above, then make sure that you file a timely Notice of Disagreement to the Ratings Decision.  Argue to the BVA that the VA did not properly apply Thun in your claim.

3) If the BVA still denies, consider reaching out to an attorney to appeal to the Veterans Court to raise a Thun violation before the Court.

I have been watching the Court for several years, and there is a LOT of activity on the Thun principles lately – primarily because in so many Veteran’s claims, the ratings tables do not adequately consider the Veteran’s REAL disability picture. 

The Veterans Court is Showing Signs of Mounting Frustration with the VA.

The Court is increasingly frustrated with the VA and BVA’s  improper analyses of these types of claims.  In a recent non-precedential decision, a single judge on the Veterans Court had this to say:

“But without even a scintilla of a description of the various ratings and how they apply to this particular veteran, who has difficulty understanding conversation and localizing sound, the [BVA thwarted the] Court’s appellate review….[and] applied the wrong standard for extraschedular consideration; the Board was required to explain whether the appellant’s hearing loss “marked[ly] interfer[ed] with employment,” not whether it rendered him unemployable.”   Short v. McDonald, CAVC Cause No. 13-0623 (July 31, 2014).

Interestingly, the Court signaled its lack of patience with the VA when it quoted “Hayburn’s Case” in its decision – this is a case from the US Supreme Court in 1792 which we have talked about several times on this blog.  It stands (among other things)  for the idea that “expedited relief” to Veteran’s is more than just a cute phrase – it should be a reality.

2 Comments

  1. Steven C. Luke

    So does this apply if you have faced a reduction in benefits?
    My case is long pass the appeal process, c&p in 2011, decision in 2012.
    But now I was just going to agree with them and say, but now my condition is worse and warrants the higher rating. When in fact it has never improved!

    Reply
    • Chris Attig

      Steven,

      If you had a claim for an extraschedular rating at any point, and the VA ignored it …AND…. if you are past the appeal period then CUE is typically the only available path I can think of based on the facts you’ve listed there; otherwise, what I do is consider whether I should reopen and claim an extra-schedular rating. Lay evidence is going to be a HUGE factor – so make sure you have plenty to show all the symptoms and limitations outside the rating schedule.

      Chris

      Reply

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