## Facts

- A U.S. Air Force veteran served from 1969 to 1976 and developed service-connected bilateral hearing loss and tinnitus after prolonged noise exposure near active runways.
- VA granted service connection and assigned a noncompensable schedular rating for hearing loss and a 10% rating for tinnitus under the hearing-loss rating criteria.
- The veteran sought referral for an extraschedular rating for hearing loss under 38 C.F.R. § 3.321(b)(1), asserting functional effects beyond the schedule, including ear pain associated with hearing aids, anxiety, depression, decreased self-esteem, work interference, and speech-discrimination problems.
- A VA examiner opined that the asserted mental-health complaints were not caused by hearing loss and did not constitute a DSM-5 diagnosable mental disorder.
- The Board denied extraschedular referral, finding the alleged effects were not exceptional or unusual and were adequately contemplated by the schedular framework or otherwise not attributable to service-connected hearing loss.

## Issues

1. Whether the Board misapplied 38 C.F.R. § 3.321(b)(1) or clearly erred in finding the veteran’s hearing-loss disability picture was not “exceptional” and did not require extraschedular referral.
2. Whether symptoms not shown to be caused by a service-connected disability may support extraschedular referral for that disability.
3. Whether ear pain associated with hearing-aid use and claimed functional effects of hearing loss can render the hearing-loss rating criteria inadequate at the referral stage.

## Decision

- The court, sitting en banc, affirmed the Board’s denial of extraschedular referral.
- The court held that extraschedular referral under § 3.321(b)(1) is reserved for rare cases involving truly exceptional or unusual disability pictures that the schedular criteria cannot reasonably describe.
- The court concluded the Board permissibly found that the veteran’s core hearing-loss functional effects (including difficulty hearing and understanding speech) were contemplated by the hearing-loss rating scheme.
- The court also concluded the Board did not err by discounting mental-health complaints and other asserted effects not shown to be caused by service-connected hearing loss, and by treating hearing-aid-related ear pain as not establishing an exceptional disability picture on this record.

## Legal Principles

- Extraschedular referral under 38 C.F.R. § 3.321(b)(1) requires a threshold showing that the schedular criteria are inadequate to describe the veteran’s disability picture; the inquiry focuses on “exceptional” or “unusual” symptoms or severity.
- The extraschedular analysis is limited to impairment attributable to the service-connected disability at issue; symptoms not shown to be caused by that disability cannot justify referral for that disability.
- For hearing loss, the schedular framework in 38 C.F.R. §§ 4.85 and 4.86 is intended to account for ordinary functional effects of diminished hearing and speech understanding, including common communication difficulties.
- Disagreement with the assigned schedular percentage, without a showing that the rating criteria cannot account for the disability picture, is insufficient to trigger extraschedular referral.

## Conclusion

The court affirmed the denial of extraschedular referral for bilateral hearing loss, holding that § 3.321(b)(1) applies only to rare, truly exceptional disability pictures and that the Board reasonably found the veteran’s asserted effects were either contemplated by the hearing-loss rating scheme or not shown to be caused by the service-connected hearing loss.


Long v. Wilkie, 33 Vet. App. 167 (2020)