Walter G. Long v. Robert L. Wilkie
U.S. Vet. App. (2020) (Reporter citation not specified in text) (2020)
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Rule of Law:
To warrant referral for extraschedular consideration, a veteran's service-connected disability must present a disability picture so exceptional or unusual that the regular schedular rating criteria and all other available conventional rating tools are impractical or inadequate to evaluate it.
Facts:
- Walter G. Long served in the Air Force from 1969 to 1976 as an air traffic control radar repairman, working without ear protection in close proximity to active runways.
- In 2009, Long filed a claim for service connection for his resulting hearing loss, which VA granted and assigned a noncompensable rating based on an audiological examination.
- Long experienced various functional effects of hearing loss, including anxiety and depression symptoms, decreased self-esteem, problems with speech discrimination not helped by hearing aids, interference with his ability to work with students, increased difficulty writing lesson plans, and ear pain from his use of hearing aids.
- A 2011 VA clinical psychologist determined that Long's mental health issues (depression, anxiety) were less likely than not related to hearing loss, attributing them to marital/interpersonal difficulties, alcoholism, and a family history.
- Long consistently attributed his ear pain to his use of hearing aids and not directly to his hearing loss.
- Long did not contest that the mechanical nature of the schedular rating criteria for hearing loss directed a noncompensable rating based on audiometric test results.
Procedural Posture:
- Walter G. Long filed a claim for service connection for hearing loss with the Department of Veterans Affairs (VA) in 2009.
- VA granted the claim for service connection but assigned a noncompensable rating.
- Long appealed VA's decision to the Board of Veterans' Appeals (Board).
- The Board affirmed the noncompensable rating, declining to refer Long's claim for extraschedular consideration.
- Long, as appellant, appealed the Board's decision to the United States Court of Appeals for Veterans Claims.
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Issue:
Does a veteran's claim for extraschedular consideration for service-connected hearing loss, presenting symptoms such as anxiety, depression, reduced self-esteem, work-related difficulties, speech discrimination issues, and ear pain from hearing aids, constitute an "exceptional or unusual" disability picture not adequately contemplated by the mechanical rating schedule or other conventional rating tools, thereby warranting referral under 38 C.F.R. § 3.321(b)(1)?
Opinions:
Majority - Toth, Judge
No, Walter G. Long's claim for extraschedular consideration for service-connected hearing loss does not present an exceptional or unusual disability picture because his symptomatology is readily capable of evaluation under the relevant diagnostic criteria and available rating tools. The Court clarified that "exceptionality" remains the touchstone for extraschedular consideration, and Thun's first step is a totality-of-factors inquiry, not a mechanical comparison of individual symptoms to diagnostic criteria. For referral, the disability must be so exceptional that the rating schedule is incapable of assessing it in the first instance. The Court reiterated that all available rating tools (direct, secondary, analogous) must be exhausted first (citing Morgan v. Wilkie, 2019). Psychological complaints not linked to the service-connected disability or lacking a valid DSM-5 diagnosis (citing Martinez-Bodon v. Wilkie, 2020) do not warrant extraschedular consideration. Similarly, pain attributed to hearing aids, rather than the hearing loss itself, lacks the requisite nexus. The Board's factual findings that Long's disability picture was not exceptional were reviewed under the "clearly erroneous" standard and were affirmed as not erroneous.
Concurring in the judgment and dissenting in part - Schoelen, Senior Judge
I concur in the judgment affirming the Board's decision, but I respectfully dissent from the majority's reasoning, arguing that extraschedular referral and awards are simply unavailable for Diagnostic Codes (DCs) that require mechanical applications of test results and are devoid of listed symptoms, such as hearing loss. The majority's reformulation of Thun's first step, replacing a direct comparison of severity and symptomatology to the DC with a "totality of the factors inquiry," deviates from past precedent and introduces unnecessary complications, such as distinguishing "functional impairment" from "functional effects." More fundamentally, DCs that lack listed symptoms render Thun's first step impossible to apply without the Board making prohibited medical determinations in violation of Colvin v. Derwinski (1991). Therefore, extraschedular evaluations should be deemed unavailable for such DCs, and any Board error in this context would be harmless under 38 U.S.C. § 7261(b)(2).
Dissenting - Meredith, Judge
No, the Board's decision should not be affirmed. We believe the majority reaches farther than necessary, acts as the fact-finder rather than reviewer, and does not offer clear guidance on the issue it purports to settle. First, the Board erred by not first considering whether potential schedular rating alternatives existed for Mr. Long's work-related difficulties, ear pain, and self-esteem issues, as required by Morgan v. Wilkie (2019), rendering the extraschedular analysis premature. The majority's affirmance on a different basis than the Board's decision (i.e., finding his symptomatology not exceptional) amounts to an advisory opinion. Second, even if the extraschedular framework were ripe for review, the Board did not make the necessary predicate factual findings to apply the majority's revised framework, warranting a remand (citing Deloach v. Shinseki, 2013). The majority's own analysis regarding ear pain constitutes improper fact-finding. Third, the majority's new terminology (e.g., equating "functional impairments" with "symptoms"), the imposition of an additional burden on claimants (new nexus requirement), and its unclear treatment of prior precedent (e.g., Doucette v. Shulkin, 2017; King v. Shulkin, 2017) lead to confusion and appear to implicitly overrule prior decisions without explicit acknowledgment.
Analysis:
This en banc decision significantly refines the application of 38 C.F.R. § 3.321(b)(1) regarding extraschedular consideration for veterans' disabilities, particularly for conditions rated by mechanical diagnostic codes like hearing loss. It clarifies that Thun's first step is a holistic, "totality of the factors" inquiry focused on whether the entire disability picture is so exceptional that all conventional rating tools are inadequate, rather than a mere line-item comparison of symptoms. The ruling emphasizes the exhaustion of all other rating possibilities (direct, secondary, analogous) before extraschedular referral, establishes a clear nexus requirement between the alleged unusual effects and the service-connected disability, and reinforces the need for formal diagnoses for associated psychiatric conditions. This could lead to fewer successful extraschedular referrals for conditions with mechanical rating schedules, shifting the burden more heavily onto veterans to demonstrate the inadequacy of all available rating methods.
