Long v Wilkie - Functional impact assessment

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Long v Wilkie

Air Force Veteran takes his Claim to court

Air Force veteran Walter G. Long recently took his claim, Long v. Wilkie, to the Court of Appeals for Veterans Claims. Long was appealing the decision made by the Board of Veterans' Appeals, which refused to refer his noncompensable bilateral hearing loss rating for extraschedular consideration.

Long's argument and the Court's decision

Long firmly argued that the Department of Veterans Affairs had made an error by failing to explain how the diagnostic criteria for hearing loss encompassed the range of symptoms and effects that he experienced. He believed that his reduced self-esteem, social impairment, anxiety, and depression were not adequately taken into account.

However, the Court ultimately affirmed the Board's decision, denying Long's claim for disability compensation, stating that the rating criteria for hearing loss did indeed account for Long's symptoms. It determined that his hearing loss, despite the additional symptoms he presented, did not qualify as exceptional.

Functional impact assessment

Long had also argued that the schedular rating criteria for hearing loss did not fully address the functional impact of his condition. In his claim for disability compensation, Long claimed that his hearing loss led to anxiety, depression, decreased self-esteem, and difficulties in his work with students.

In response, the Board concluded that the rating criteria adequately described the severity of Long's disability and the associated symptoms. It also dismissed Long's disability compensation claim that his anxiety and depression were directly related to his hearing loss, based on the evaluation of a VA clinical psychologist.

Thun framework and hearing loss symptomatology

Once again, the Court upheld the Board's decision, finding no clear errors in their conclusions. It reiterated the standard for determining whether a veteran's disability compensation claim is exceptional or unusual, as established in Thun v. Peake. The Court emphasized the key factor of "exceptionality" when considering extraschedular consideration and highlighted that the Thun "first step" should be approached holistically, taking into account all relevant factors.

Additionally, the Court referred to its ruling in Doucette v. Shulkin, where it had determined that the rating criteria for hearing loss encompassed symptomatology related to decreased hearing, even if those symptoms were not explicitly listed in the diagnostic code. As a result, the Court dismissed Long's disability compensation claim due to the absence of certain symptoms in the diagnostic criteria would satisfy the Thun "first step."

Significance of functional effects and DSM-5 diagnosis

The Court further delves into the significance of considering functional effects when determining the exceptional nature of symptomatology under § 3.321(b)(1). It distinguishes between the initial and subsequent steps of the Thun analysis, highlighting that the first step primarily focuses on evaluating the adequacy of the VA disability rating schedule, while the second step deals with assessing the impact of the symptoms.

Additionally, the Court reaffirms that extraschedular consideration should only be entertained once all other VA benefits rating tools have been exhausted. It emphasizes the requirement of a valid DSM-5 diagnosis for compensating a psychiatric disability, clarifying that psychological difficulties without a formal diagnosis are not grounds for extraschedular consideration. Furthermore, the Court underscores that extraschedular consideration does not offer an exception to the rule that a disability must be attributable to an injury or disease acquired during active duty.

Establishing a nexus and Board's obligation

In the discussion, the Court also emphasizes the vital need to establish a nexus between a service-connected disability and the symptoms for which extraschedular consideration is being sought. It cites the Doucette case, which elucidated that the rating criteria for hearing loss encompass the functional effects of decreased hearing and challenges in understanding speech in everyday work environments.

The Court argues that the Board is not obligated to address all conceivable schedular alternatives for rating a disability compensation claim unless they are raised by the claimant or reasonably evident in the record. In the disability claim at hand, the Court determines that Mr. Long's hearing-related symptoms align with the precedent set in Doucette and finds no error in the Board's decision.

Dissenting opinions and concerns

Additionally, the Court refutes Mr. Long's assertion that the Board was required to clarify how the mechanical nature of the VA benefits rating criteria for hearing loss accounts for the various functional effects he experiences. It reiterates that extraschedular consideration does not provide an exception to the rule of prejudicial error.

Lastly, the Court contends that Mr. Long's complaints regarding reduced self-esteem and social impairment can be evaluated under VA's General Rating Formula for Mental Disorders for the purpsoes of disability compensation.

The Bounds of Regulation: Why Alternative Framework is Inappropriate

The court examines the possibility of creating an alternative framework to the Thun ruling. However, they argue that this approach would lead them to operate outside the bounds of the regulation. Consequently, the court concludes that an alternative framework is not the appropriate path forward for Long to qualify for VA disability benefits.

Thun's Weight: A Straightforward Application of Regulatory Text

Advocating for the continued relevance of the Thun ruling, the court emphasizes that it represents a direct and clear application of the regulatory text. The court suggests that Thun should still be considered a significant precedent in these VA disability benefits claims.

Reinforcing the Need for Independent Medical Evidence

To establish the severity, common symptomatology, and usual treatment of a disability, the court contends that the Board must rely on independent medical evidence. This requirement ensures a thorough evaluation of a veteran's condition.

Accepting Thun as Good Law: Overruling Conflicting Jurisprudence

Building upon their support for Thun, the court proposes that the Board should accept it as good law. Furthermore, they recommend that extraschedular evaluations be considered unavailable for Diagnostic Codes that necessitate the mechanical application of test results. In doing so, the court aims to resolve any potential conflicts with previous jurisprudence.

Affirming the Board's Decision: Final Conclusion

After careful consideration, the court ultimately affirms the Board's decision regarding Long's VA disability benefits claim. Their analysis and arguments lead them to conclude that the Board's ruling is sound and in alignment with the applicable regulations.

Exploring Morgan v. Wilkie: Exhausting Other Tools for a Disability Claim

The court also takes the opportunity to discuss the decision in Morgan v. Wilkie. They highlight how this disability claim establishes that extraschedular consideration is only appropriate after all other methods for determining a disability benefits rating have been exhausted.

Missing Threshold Analysis: Potential Schedular Rating Alternatives

In their examination of the Veterans Affairs Board of Veterans Appeal's decision, the court notes a crucial oversight: the failure to consider potential schedular rating alternatives for the challenges faced by the veteran in question, Long. They deem this threshold analysis necessary for a comprehensive evaluation.

Premature Opinions on Extraschedular Referral Denial

The court argues that it would be premature to pass judgment on the propriety of the Veterans Affairs denial of referral for extraschedular consideration. This indicates that further examination and evaluation may be required before reaching a conclusive decision.

Lack of Clarity in Synthesizing Caselaw: The Majority's Critique

Critiquing the majority's attempt to synthesize the major caselaw regarding the extraschedular framework, the court asserts that this endeavor has yielded little clarity in practice. This observation prompts further consideration of how to provide more concise guidance on the matter.

The Dissenting Opinion: Questioning the Majority's Interpretation

Finally, in a dissenting opinion, it is asserted that the majority's interpretation of the term "symptom" as a substitute for "impairment" or "functional impairment" lacks clarity. This dissenting perspective invites a deeper exploration of the terminology used and its impact on the overall understanding of disabilities.

With this comprehensive analysis, we have gained insight into the court's perspective on addressing extraschedular referral issues and the Thun ruling. By examining different arguments and opinions, we can better navigate the complexities of the VA benefits claims process.

The dissent also expresses concern that the majority's treatment of precedent may lead to confusion at both the agency and court level.

Additionally, the dissent argues that the majority's requirement for a "requisite and legally recognized nexus" between a disability and service may place an undue burden on claimants.

Finally, the dissent contends that the majority's assertion that the inquiry into whether a disability is exceptional is not reducible to a comparison between symptoms and diagnostic criteria could be read as overruling prior court decisions.

The court discusses the rating criteria for hearing loss, noting that it is "mechanical" in nature and relies on audiometric test results.

The court references a 2018 amendment to § 3.321(b)(1) that changed the extraschedular analysis, but argues that it does not affect the substance or structure of the Thun analysis.

Differing Perspectives on the Veteran's Claim

In a dissenting opinion, it is argued that the majority's conclusion regarding the veteran's ear pain necessitates further fact-finding and should be remanded to the Board. The dissent also raises concerns about the majority's analysis of evidence and arguments pertaining to the veteran's psychological symptoms, highlighting flaws in their reasoning.

Extraschedular Evaluation and Disagreement with Majority's Logic

The dissent ultimately concludes that an extraschedular evaluation is not available for hearing loss; however, it disagrees with the majority's reasoning. The court critiques the assumption made by the majority regarding the applicability of the fifth edition of the Diagnostic and Statistical Manual of Mental Disorders to the appellant's disability claim.

Importance of Prejudicial Error and Lack of Explanation

Addressing the importance of considering the rule of prejudicial error during disability claim reviews, the court questions the majority's failure to explain why affirming on a different basis than the Board decision rests would be appropriate. The dissent expresses concerns that the majority's characterization of the holding in Doucette v. Shulkin may lead to further confusion in the extraschedular realm.

Ruminating on Symptoms vs. Signs and Nexus Requirement

The court delves into the distinction between "symptoms" and "signs" in medical terminology. While symptoms denote the subjective aspect of evidence of disease, signs refer to objective evidence. Additionally, the court questions the basis for imposing a new nexus requirement after service connection has already been established.


The dissenting opinion challenges the majority's findings regarding the veteran's ear pain and psychological symptoms. It advocates for a remand to the Board for further fact-finding, disagreeing with the majority's logic on extraschedular evaluation. The court also highlights concerns about the potential confusion stemming from the majority's interpretation of the Doucette v. Shulkin precedent. Furthermore, the dissent raises questions about the majority's failure to explain their decision to affirm on a different basis and explores the distinction between symptoms and signs in medical evidence. Finally, the court questions the imposition of a new nexus requirement after service connection has already been established.

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