Friday, December 3, 2010

Unemployability and Hearing Loss

by Kristina Derro

A recent decision by the Court, on one of our client’s claims, stressed the importance that VA must get a medical opinion before it summarily declined to refer an issue for extraschedular consideration for unemployability. Our client worked as an accountant, handling his clients’ taxes. He was forced to stop working because his hearing loss was so debilitating that he was prevented from talking with and understanding his clients. Fearing that he would accidentally submit something erroneous to the IRS because he did not hear his clients correctly, he stopped working. VA refused to refer our client’s claim for consideration for unemployability because it determined that the Veteran could still perform the physical and mental acts required by being an accountant, he just could not hear and understand his clients.

After we submitted our legal argument, the Court determined that the VA was wrong by not referring the case to a physician to make a determination on the effect the Veteran’s hearing loss had on his ability to remain employed. The Court chastised VA for using its own unsubstantiated opinion, and not relying on independent medical evidence from a physician on the topic. After all, one can reason that if the Veteran could not hear his clients, he would be unable to hear and understand any other employer as well.

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