Citation Nr: 0813335	
Decision Date: 04/23/08    Archive Date: 05/01/08

DOCKET NO.  06-08 456	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Los 
Angeles, California


THE ISSUES

1.  Entitlement to a compensable evaluation for bilateral 
hearing loss, on appeal from an initial grant of service 
connection.

2.  Entitlement to an extraschedular evaluation for bilateral 
hearing loss.  


REPRESENTATION

Appellant represented by:	California Department of 
Veterans Affairs


WITNESS AT HEARING ON APPEAL

Appellant




ATTORNEY FOR THE BOARD

Patrick J. Costello, Counsel


INTRODUCTION

The veteran served on active duty from August 1971 to 
November 1974.  

This matter comes before the Board of Veterans' Appeals 
(Board) on appeal from a rating decision rendered in June 
2005 by the Department of Veterans Affairs (VA) Regional 
Office (RO), located in Los Angeles, California.  That rating 
decision denied the veteran's request for service connection 
for bilateral hearing loss.  Subsequently, service connection 
was granted and the veteran has appealed the assignment of a 
noncompensable evaluation.  

The issue addressed in the REMAND portion of the decision 
below and is REMANDED to the RO via the Appeals Management 
Center (AMC), in Washington, DC.


FINDINGS OF FACT

1.  The VA has fulfilled its notice and duty to assist to the 
appellant by obtaining and fully developing all relevant 
evidence necessary for the equitable disposition of the issue 
addressed in this decision.

2.  The veteran has Level IV hearing in the right ear and 
Level I hearing in the left ear.  On a more recent 
examination, the veteran has been found to have Level II 
hearing in the right ear and Level II hearing in the left 
ear.  




CONCLUSION OF LAW

The criteria for a compensable evaluation for bilateral 
hearing loss have not been met.  38 U.S.C.A. §§ 1155, 5107 
(West 2002 & Supp. 2007); 38 C.F.R. §§ 3.321, 4.1-4.14, 
4.104, Diagnostic Code 6100 (2007).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

The veteran has come before the VA asking that a compensable 
evaluation be assigned for his bilateral hearing loss.  The 
Veterans Claims Assistance Act of 2000 (VCAA) describes VA's 
duty to notify and assist claimants in substantiating a claim 
for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 
5107, 5126 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 
3.156(a), 3.159 and 3.326(a) (2007).

Upon receipt of a complete or substantially complete 
application for benefits, VA is required to notify the 
claimant and his or her representative, if any, of any 
information, and any medical or lay evidence, that is 
necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) 
(West 2002 & Supp. 2006); 38 C.F.R. § 3.159(b) (2007); 
Quartuccio v. Principi, 16 Vet. App. 183 (2002).  Proper VCAA 
notice must inform the claimant of any information and 
evidence not of record (1) that is necessary to substantiate 
the claim; (2) that VA will seek to provide; (3) that the 
claimant is expected to provide; and (4) must ask the 
claimant to provide any evidence in her or his possession 
that pertains to the claim in accordance with 38 C.F.R. § 
3.159(b)(1).  VCAA notice should be provided to a claimant 
before the initial unfavorable agency of original 
jurisdiction (AOJ) decision on a claim.  Pelegrini v. 
Principi, 18 Vet. App. 112 (2004); see also Mayfield v. 
Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 
444 F. 3d 1328 (Fed. Cir. 2006).

VA satisfied its duty to notify by means of a letter sent to 
the veteran from the agency of original jurisdiction (AOJ) in 
December 2004 before the issuance of the initial AOJ prior to 
the issuance of the initial AOJ decision.  The letter 
informed the appellant of what evidence was required to 
substantiate the claim for service connection and of his, and 
VA's, respective duties for obtaining evidence.  The 
appellant was also asked to submit evidence and/or 
information in his possession to the AOJ.

Since the RO's original letter preceded its initial award of 
service connection, it did not provide notice of the evidence 
needed to substantiate the claim for an increased (initial) 
rating.  However, VA is not required to provide separate 
notice under 38 U.S.C.A. § 5103(a) with regard to 
"downstream" issues, where the notice was provided in 
connection with the original claim.  See VAOPGCPREC 8-2003 
(Dec. 22, 2003) (cited at 69 Fed. Reg. 25,180 (2004)); 
Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997).  
Nevertheless, VA subsequently provided notice as to the 
higher rating issue in the Statement of the Case (SOC) that 
was issued in January 2006 and the subsequent Supplemental 
Statements of the Case (SSOCs) that were issued in March and 
July 2007.  

VA has informed the appellant of which evidence he was to 
provide to VA and which evidence VA would attempt to obtain 
on his behalf.  In this regard, the VA sent the appellant 
notice of the VCAA, which spelled out the requirements of the 
VCAA and what the VA would do to assist the appellant.  The 
VA informed the appellant that it would request records and 
other evidence, but that it was the appellant's 
responsibility to ensure that the VA received the records.  
The appellant was told that he should inform the VA of any 
additional records or evidence necessary for his claim.  The 
Board has fulfilled its duty to assist.  In this instance, 
the VA obtained the veteran's available medical treatment 
records and those other records that the VA was made aware 
thereof.  As such, the VA obtained those records and they 
have been included in the claims folder, available for 
review.

The Board has also considered whether a VA medical 
examination or opinion should be obtained.  See 38 U.S.C.A. § 
5103A (West 2002 & Supp. 2006); 38 C.F.R. § 3.159 (2007).  
The record indicates that the veteran did undergo VA medical 
examinations in November 2004, August 2005, and April 2007.  
These results have been included in the claims folder for 
review.  The Board finds that the VA has met its duty to 
assist the veteran in obtaining a medical examination of the 
veteran.  The Board will, therefore, consider the claim based 
on the evidence previously developed.

Moreover, the appellant was given the opportunity to present 
evidence and testimony before an RO hearing officer and the 
Board.  The appellant was given notice that the VA would help 
him obtain evidence but that it was up to the appellant to 
inform the VA of that evidence.  During the course of this 
appeal, the appellant and his representative have proffered 
documents and statements in support of the veteran's claim.  
It seems clear that the VA has given the appellant every 
opportunity to express his opinions with respect to the issue 
now before the Board and the VA has obtained all known 
documents that would substantiate the appellant's assertions.

During the pendency of this appeal, on March 3, 2006, the 
United States Court of Appeals for Veterans Claims, 
hereinafter the Court, issued a decision in the consolidated 
appeal of Dingess/Hartman v. Nicholson, 19 Vet. App. 473 
(2006), which held that the VCAA notice requirements of 38 
U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five 
elements of a service connection claim.  Those five elements 
include:  1) veteran status; 2) existence of a disability; 
(3) a connection between the veteran's service and the 
disability; 4) degree of disability; and 5) effective date of 
the disability.  The Court held that upon receipt of an 
application for a service-connection claim, 38 U.S.C.A. § 
5103(a) and 38 C.F.R. § 3.159(b) require VA to review the 
information and the evidence presented with the claim and to 
provide the claimant with notice of what information and 
evidence not previously provided, if any, will assist in 
substantiating or is necessary to substantiate the elements 
of the claim as reasonably contemplated by the application.  
Additionally, this notice must include notice that a 
disability rating and an effective date for the award of 
benefits will be assigned if service connection is awarded.  
Id.

Here the veteran was provided with notice of what type of 
information and evidence was needed to substantiate his claim 
for service connection and he was given information 
concerning disability ratings, but he was not provided with 
notice of the type of evidence necessary to establish an 
effective date for the disability on appeal.  Despite the 
inadequate notice provided to the veteran on this element, 
the Board finds no prejudice to the veteran in proceeding 
with the issuance of a final decision.  See Bernard v. Brown, 
4 Vet. App. 384, 394 (1993) (where the Board addresses a 
question that has not been addressed by the agency of 
original jurisdiction, the Board must consider whether the 
veteran has been prejudiced thereby).  In that regard, as the 
Board concludes below that as the evidence is against the 
appellant's claim, any questions as to the effective date or 
the rating criteria to be assigned are rendered moot.

According to Vazquez-Flores v. Peake, 27 Vet. App. 37 (2008), 
for an increased-compensation claim, section 5103(a) 
requires, at a minimum, that the Secretary notify the 
claimant that, to substantiate a claim, the claimant must 
provide, or ask the Secretary to obtain, medical or lay 
evidence demonstrating a worsening or increase in severity of 
the disability and the effect that worsening has on the 
claimant's employment and daily life.  Further, if the 
Diagnostic Code under which the claimant is rated contains 
criteria necessary for entitlement to a higher disability 
rating that would not be satisfied by the claimant 
demonstrating a noticeable worsening or increase in severity 
of the disability and the effect of that worsening has on the 
claimant's employment and daily life (such as a specific 
measurement or test result), the Secretary must provide at 
least general notice of that requirement to the claimant.  
Additionally, the claimant must be notified that, should an 
increase in disability be found, a disability rating will be 
determined by applying relevant Diagnostic Codes, which 
typically provide for a range in severity of a particular 
disability from noncompensable to as much as 100 percent 
(depending on the disability involved), based on the nature 
of the symptoms of the condition for which disability 
compensation is being sought, their severity and duration, 
and their impact upon employment and daily life.  As with 
proper notice for an initial disability rating and consistent 
with the statutory and regulatory history, the notice must 
also provide examples of the types of medical and lay 
evidence that the claimant may submit (or ask the Secretary 
to obtain) that are relevant to establishing entitlement to 
increased compensation - e.g., competent lay statements 
describing symptoms, medical and hospitalization records, 
medical statements, employer statements, job application 
rejections, and any other evidence showing an increase in the 
disability or exceptional circumstances relating to the 
disability. 

In this case, the veteran was provided pertinent information 
in VCAA notice cited above and in the SOC and the two SSOCs.  
Cumulatively, the veteran was informed of the necessity of 
providing on his own or by VA, medical or lay evidence 
demonstrating a worsening or increase in severity of the 
disability and the effect that worsening has on the 
claimant's employment and daily life; the claimant was 
informed that should an increase in disability be found, a 
disability rating will be determined by applying relevant 
diagnostic code(s); and examples of pertinent medical and lay 
evidence that the claimant may submit (or ask the Secretary 
to obtain) relevant to establishing entitlement to increased 
compensation.  

In the case currently before the Board, the VCAA notice did 
not make specific reference to Diagnostic Code 6100, of 38 
C.F.R. Part 4 (2007).  In Sanders v. Nicholson, No. 2006-7001 
(Fed. Cir. May 16, 2007), the Federal Circuit stated that all 
VCAA notice errors are presumed prejudicial and require 
reversal unless the VA can show that the error did not affect 
the essential fairness of the adjudication.  To do this, the 
VA must show that the purpose of the notice was not 
frustrated, such as by demonstrating that any defect was 
cured by actual knowledge on the part of the claimant, that a 
reasonable person could be expected to understand from the 
notice what was needed, that a benefit could not have been 
awarded as a matter of law, or perhaps where the claimant has 
stated that he or she has no further evidence to submit, or 
where the record reflects that VA has obtained all relevant 
evidence.  There must be a demonstration that there was no 
error.  See Fenstermacher v. Phila. Nat'l Bank, 493 F.2d 333, 
337 (3d Cir.1974) ("[N]o error can be predicated on 
insufficiency of notice since its purpose had been 
served.").  In order for the Court to be persuaded that no 
prejudice resulted from a notice error, the record must 
demonstrate that, despite the error, the adjudication was 
nevertheless essentially fair.  See also Dunlap v. Nicholson, 
21 Vet. App. 112, 118 (2007).  

The Court has stated that "Nothing in law or common sense 
supports a conclusion that the Court should put on blinders 
and ignore [the 'extensive administrative appellate process'] 
or a conclusion that a notice error prior to the initial 
decision by the Secretary could not be rendered non-
prejudicial when the full panoply of administrative appellate 
procedures established by Congress are provided to the 
claimant.  It is well settled that a remand is not warranted 
when no benefit would flow to the claimant."  See Vazquez-
Flores.

The claimant demonstrated that there was actual knowledge of 
what was needed to establish the claim.  Actual knowledge is 
established by statements or actions by the claimant or the 
claimant's representative that demonstrate an awareness of 
what was necessary to substantiate his or her claim.  See 
Dalton v. Nicholson, 21 Vet. App. 23, 30-31 (2007); see also 
Short Bear v. Nicholson, 19 Vet. App. 341, 344 (2005).  The 
mere act of submitting evidence does not demonstrate actual 
knowledge.  See Vazquez-Flores.  In this instance, the 
veteran and his representative demonstrated his awareness 
through his various submissions to the VA over the long 
course of this appeal.  That is, the veteran had written that 
his hearing loss was more disabling and that he should 
receive a compensable evaluation.  The veteran further 
insinuated through his statements to the VA that he was aware 
of what was required in order for a higher disability to be 
assigned.  

Accordingly, the Board finds that the essential fairness was 
maintained in this case as the claimant has demonstrated 
actual knowledge of the evidence, which was needed to 
establish the claim, and since VA has obtained all relevant 
evidence.  The claimant demonstrated an understanding of the 
evidence required to substantiate the higher rating sought 
and that a higher rating would be assigned based on the 
pertinent diagnostic criteria.  The claimant discussed the 
pertinent criteria and submitted supporting evidence and he 
has indicated that there was no further evidence to submit.  
The criteria were discussed in the statement of the case and 
the claimant was told why a higher rating was not warranted 
under that criteria.  

In sum, the claimant was provided the information necessary 
such that any defective predecisional notice error was 
rendered non-prejudicial in terms of the essential fairness 
of the adjudication.  Thus, the Board finds that although 
there may be a VCAA deficiency, the evidence of record is 
sufficient to rebut this presumption of prejudice as the 
record shows that this error was not prejudicial to the 
claimant and the essential fairness of the adjudication 
process in this case was preserved.  

As there is no indication that any failure on the part of VA 
to provide additional notice of assistance reasonably affects 
the outcome of this case, the Board finds that such failure 
is harmless.  See Mayfield v. Nicholson, 19 Vet. App. 103 
(2005), rev'd on other grounds, Mayfield v. Nicholson, 444 
F.3d 1328 (Fed. Cir. 2006).

In this case, because each of the four content requirements 
of a VCAA notice has been fully satisfied, there is no error.  
Here, the appellant is not prejudiced by the Board's 
consideration of his claim as VA has already met all notice 
and duty to assist obligations to the appellant under the 
VCAA.  In essence, the appellant in this case has been 
notified as to the laws and regulations governing increased 
ratings claims.  He has been advised of the evidence 
considered in connection with his appeal and what information 
VA and the appellant would provide.  He has been told what 
the VA would do to assist him with his claim and the VA has 
obtained all documents it has notice thereof that would 
assist in the adjudication of the appellant's claim.  Thus, 
the Board finds that there has been no prejudice to the 
appellant that would warrant further notification or 
development.  As such, the appellant's procedural rights have 
not been abridged, and the Board will proceed with appellate 
review.  Bernard v. Brown, 4 Vet. App. 384, 393 (1993).

Disability evaluations are determined by the application of a 
schedule of ratings that is based on the average impairment 
of earning capacity.  38 U.S.C.A. § 1155 (West 2002); 38 
C.F.R., Part 4 (2007).  Separate diagnostic codes identify 
the various disabilities.  38 C.F.R. § 4.1 (2007) requires 
that each disability be viewed in relation to its history and 
that there be emphasis upon the limitation of activity 
imposed by the disabling condition.  38 C.F.R. § 4.2 (2007) 
requires that medical reports be interpreted in light of the 
whole recorded history, and that each disability must be 
considered from the point of view of the veteran working or 
seeking work.  38 C.F.R. § 4.7 (2007) provides that, where 
there is a question as to which of two disability evaluations 
shall be applied, the higher evaluation is to be assigned if 
the disability picture more nearly approximates the criteria 
required for that rating.  Otherwise, the lower rating is to 
be assigned.

The regulations do not give past medical reports precedence 
over current findings.  Francisco v. Brown, 7 Vet. App. 55, 
58 (1994).  While the evaluation of a service-connected 
disability requires a review of the appellant's medical 
history with regard to that disorder, the Court has held 
that, where entitlement to compensation has already been 
established, and an increase in the disability rating is at 
issue, the present level of disability is of primary concern.  
Id.; Peyton v. Derwinski, 1 Vet. App. 282 (1991); 38 C.F.R. 
§§ 4.1, 4.2 (2007).  With respect to the issue before the 
Board, the appeal does stem from the veteran's disagreement 
with an evaluation assigned in connection with the original 
grant of service connection, and the potential for the 
assignment of separate, or "staged" ratings for separate 
periods of time, based on the facts found, are for 
consideration.  Fenderson v. West, 12 Vet. App. 119 (1999).

An evaluation of the level of disability present also 
includes consideration of the functional impairment of the 
veteran's ability to engage in ordinary activities, including 
employment.  38 C.F.R. § 4.10 (2007).

As reported, the veteran has asked that his bilateral hearing 
loss disability should be assigned a compensable evaluation.  
For references purposes, on the authorized audiological 
evaluation, performed in August 2005, in pure tone 
thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
40
45
40
50
55
LEFT
30
30
25
25
30

Speech audiometry revealed speech recognition ability of 69 
percent in the right ear and of 96 percent in the left ear.  
The average pure tone thresholds, in decibels, for the right 
ear was 47.5 and for the left ear was 27.5.

The most recent VA Audiological Examination was performed in 
April 2007.  Speech audiometry revealed speech recognition 
ability of 84 percent in the right ear and 88 percent in the 
left ear.  The average pure tone thresholds, in decibels, for 
the right ear was 50 and for the left ear was 37.  

To evaluate the degree of disability from defective hearing, 
the VA Schedule for Rating Disabilities (Rating Schedule) 
establishes eleven auditory acuity levels from level I for 
essentially normal acuity through level XI for profound 
deafness.  38 C.F.R. §§ 4.85 and 4.87, Diagnostic Code 6100; 
Table VI (2007); 38 C.F.R. § 4.85(b) and (e) (2007).  See 
Lendenmann v. Principi, 3 Vet. App. 345 (1992).

The horizontal rows represent the ear having the better 
hearing, while the vertical columns represent the ear having 
the poorer hearing.  The percentage evaluation is located at 
the point where the row and column intersect.  38 C.F.R. § 
4.85(e) (2007).  Table VII was amended in that hearing loss 
is now rated under a single code, that of Diagnostic Code 
6100, regardless of the percentage of disability.  See 64 
Fed. Reg. 25204 (May 11, 1999).

Applying the above test results to Table VI of the Rating 
Schedule, the veteran's hearing loss results are as follows:

Date
Right Ear Roman 
Numeral Designation
Left Ear Roman 
Numeral Designation
August 2005
IV
I
April 2007
II
II

When the formula in Table VII for determining the disability 
evaluation is applied to these numeric designations, the 
results are as follows:

        August 2005		0 percent
			April 2007		0 percent

38 C.F.R. § 4.85, Table VII (2007).

The regulations also provide for evaluating veterans with 
certain patterns of hearing impairment that cannot always be 
accurately assessed under 38 C.F.R. § 4.85 (2007) because the 
speech discrimination test may not reflect the severity of 
communicative functioning that these veterans experience.  
See 64 Fed. Reg. 25203 (May 11, 1999).  The first provision, 
that of 38 C.F.R. § 4.86(a) (2007), indicates that if pure 
tone thresholds in any four of the five frequencies of 500, 
1000, 2000, 3000, and 4000 Hertz are 55 decibels or more, an 
evaluation can be based either on Table VI or Table VIa, 
whichever results in a higher evaluation.  See 64 Fed. Reg. 
25209 (May 11, 1999).  This provision corrects for the fact 
that with a 55-decibel threshold level (the level at which 
speech becomes essentially inaudible) the high level of 
amplification needed to attempt to conduct a speech 
discrimination test would be painful to most people, and 
speech discrimination tests may therefore not be possible or 
reliable.  Id.  Because the veteran does not have four 
frequencies measured at 55 decibels or greater, this 
provision does not apply.

The second provision, that of 38 C.F.R. § 4.86(b) (2007), 
indicates that when the puretone threshold is 30 decibels or 
less at 1000 Hertz and 70 decibels or more at 2000 Hertz, the 
Roman numeral designation for hearing impairment will be 
chosen from either Table VI or Table VIa, whichever results 
in the higher numeral, and that numeral will then be elevated 
to the next higher Roman numeral.  Id.  This provision 
compensates for a pattern of hearing impairment that is an 
extreme handicap in the presence of any environmental noise, 
and a speech discrimination test conducted in a quiet room 
with amplification of sound does not always reflect the 
extent of impairment experienced in the ordinary environment.  
Id.  This provision does not apply because the veteran has 
not been measured to have hearing loss of 70 decibels or more 
at 2000 Hertz.  The amended regulations changed the title of 
Table VIa from "Average Puretone Decibel Loss" to "Numeric 
Designation of Hearing Impairment Based Only on Puretone 
Threshold Average."  See 64 Fed. Reg. 25202 (May 11, 1999).

The Board is certainly cognizant of the veteran's argument to 
the effect that his hearing loss should be assigned a 
compensable evaluation.  However, the Board is bound in its 
decisions by applicable provisions of law and regulations.  
See 38 U.S.C.A. § 7104 (West 2002); 38 C.F.R. § 19.5 (2007).  
In addition, the Court has explained that the assignment of 
disability ratings for hearing impairment is derived from a 
mechanical application of the Rating Schedule to numeric 
designations assigned after audiometric evaluations are 
rendered.  Lendenmann v. Principi, 3 Vet. App. 345, 349 
(1992).

In this case, the mandated mechanical application of the 
Rating Schedule to the numeric designations assigned based on 
the reported audiometric evaluation does not warrant an 
evaluation more than previously assigned by the RO.  
Accordingly, the Board concludes that a compensable 
evaluation is not supported by the record and increased 
evaluations are not warranted at any time during the pendency 
of the appeal.  See Fenderson, supra.

In determining whether a higher rating is warranted for a 
disease or disability, VA must determine whether the evidence 
supports the veteran's claim or is in relative equipoise, 
with the veteran prevailing in either event, or whether a 
preponderance of the evidence is against the claim, in which 
case the claim is denied.  Gilbert v. Derwinski, 1 Vet. App. 
49 (1990).  Although the Board sympathizes with the veteran's 
difficulties due to his hearing loss, the Board is 
constrained to abide by VA regulations.  In light of the 
above, the Board finds that the evidence is against his 
claim.


ORDER

Entitlement to a compensable evaluation for bilateral hearing 
loss, on appeal from an initial grant of service connection, 
is denied.  


REMAND

It is noted that the veteran has an accredited veteran's 
representative who has assisted the veteran with his claim 
for benefits.  That representative submitted a VA Form 1-646, 
Statement of Accredited Representation in Appealed Case, in 
July 2007.  In that statement, the accredited representative 
stated the following:

	. . . subjective problems are not 
accounted for in the rating schedule, but 
if the problem is too bad, it should be 
looked at for special extra-schedular 
consideration.  In this case hearing aids 
do not help him, and they magnify the 
background so as to interfere with 
speech.  

A review of the SOC and the SSOCs, along with the original 
rating decision, fails to show that the issue of an 
extraschedular evaluation as being addressed.  

38 C.F.R. § 3.321(b)(1) (2007) provides that, where the 
disability picture is so exceptional or unusual that the 
normal provisions of the VA Schedule for Rating Disabilities 
(Rating Schedule) would not adequately compensate the veteran 
for the service-connected disability, then an extraschedular 
evaluation will be assigned.  If the question of an 
extraschedular rating is raised by the record or by the 
veteran before the Board, the correct course of action for 
the Board is to raise the issue and remand the matter for 
decision in the first instance by the RO.  Bagwell v. Brown, 
9 Vet. App. 157, 158 (1996); Floyd v. Brown, 9 Vet. App. 88, 
94 (1996).  Judicial precedent has held that, in the absence 
of "evidence of 'an exceptional or unusual disability 
picture with such related factors as marked interference with 
employment or frequent periods of hospitalization as to 
render impractical the application of the regular schedular 
standards' . . . the Board [is] not required to discuss the 
possible application of § 3.321(b)(1)."  Shipwash v. Brown, 
8 Vet. App. 218, 227 (1995).

Since the veteran's representative has raised the issue of 
whether an extraschedular evaluation should be assigned, this 
issue, in accordance with Bagwell and Floyd, must be returned 
to the RO for additional action.  Moreover, the RO/AMC must 
notify the veteran how he can prevail with respect to an 
extraschedular evaluation.  That is, the RO/AMC is required 
to inform the veteran that in order to succeed it has to be 
shown that his disorder presents such an exceptional or 
unusual disability picture, due to such factors as marked 
interference with employment or frequent periods of 
hospitalization, that application of the regular schedular 
standards is impractical.  Since the veteran has not been 
specifically told what he must do in order to prevail on his 
claim, the claim must be returned to the RO/AMC for further 
action.

Accordingly, further appellate consideration will be deferred 
and the case is REMANDED to the RO for the following 
development:

1.  The RO/AMC must ensure that the 
notification requirements set forth at 38 
U.S.C.A. § 5103(a) (West 2002 & Supp. 
2006) and 38 C.F.R. § 3.159(b)(1) (2007), 
as well as VAOPGCPREC 7-2004, are fully 
complied with and satisfied as to the 
issue of an extraschedular evaluation in 
accordance with 38 C.F.R. § 3.321(b)(1) 
(2007).  In particular, the RO/AMC must 
inform the claimant:  (1) of the 
notification and duty to assist 
provisions of the VCAA and its 
implementing regulations, (2) about the 
information and evidence not of record 
that is necessary to substantiate an 
extraschedular evaluation claim; (3) 
about the information and evidence that 
VA will seek to provide; (4) about the 
information and evidence the claimant is 
expected to provide; and (5) request or 
tell him to provide any evidence in his 
possession that pertains to his claim.

The claims file must include 
documentation that there has been 
compliance with the VA's duties to notify 
and assist a claimant as set forth in the 
VCAA as specifically affecting the issue 
of an extraschedular evaluation in 
accordance with 38 C.F.R. § 3.321(b)(1) 
(2007).  

2.  The RO/AMC should review the claims 
folder and ensure that all of the 
foregoing development actions have been 
conducted and completed in full.  If any 
development is incomplete, appropriate 
corrective action is to be implemented.  
38 C.F.R. § 4.2 (2007); see also Stegall 
v. West, 11 Vet. App. 268 (1998).

Following completion of the above actions, the RO/AMC should 
review the veteran's claims and determine whether the 
veteran's extraschedular evaluation claim may be granted.  
The RO/AMC is reminded that in evaluating the disability that 
it must consider referring the service-connected claim for 
extraschedular evaluations under 38 C.F.R. § 3.321(b)(1) 
(2007), and that its actions, including that of not sending 
of the claim to the Director, VA Compensation and Pension, 
must be documented on readjudication.

If any determination remains adverse to the veteran, he and 
his representative should be provided a supplemental 
statement of the case that contains any additional evidence, 
citations of applicable laws and regulations not previously 
provided, and the reasons and bases for the decision.  The 
veteran and his representative should be given the 
opportunity to respond thereto.  Thereafter, the case should 
be returned to the Board, if in order.  The Board intimates 
no opinion as to the ultimate outcome of this case.  The 
veteran need take no action until otherwise notified.

The appellant has the right to submit additional evidence and 
argument on the matter or matters the Board has remanded.  
Kutscherousky v. West, 12 Vet. App. 369 (1999).

This claim must be afforded expeditious treatment.  The law 
requires that all claims that are remanded by the Board of 
Veterans' Appeals or by the United States Court of Appeals 
for Veterans Claims for additional development or other 
appropriate action must be handled in an expeditious manner.  
See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2007).




______________________________________________
F. JUDGE FLOWERS
Veterans Law Judge, Board of Veterans' Appeals



 Department of Veterans Affairs