Citation Nr: 1310372 Decision Date: 03/27/13 Archive Date: 04/09/13 DOCKET NO. 06-13 149 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUE Entitlement to an increased (compensable) evaluation for bilateral mixed hearing loss, with postoperative residuals of otosclerosis in the right ear. REPRESENTATION Appellant represented by: Virginia Department of Veterans Services WITNESSES AT HEARING ON APPEAL The appellant and his spouse ATTORNEY FOR THE BOARD Stephen F. Sylvester, Counsel INTRODUCTION The Veteran served on active duty from May 1965 to June 1985. This case originally came before the Board of Veterans' Appeals (Board) on appeal of a February 2005 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia. In August 2007, the Veteran's case was remanded by the Board for additional development. Upon completion of that development, the Veteran's case was returned to the Board, which, in a decision of April 2009, denied entitlement to a compensable evaluation for bilateral mixed hearing loss. The Veteran subsequently appealed the Board's April 2009 decision to the United States Court of Appeals for Veterans Claims (Court), which, in a March 2011 Memorandum Decision, set aside the Board's April 2009 decision, and remanded the case for additional proceedings. The Veteran's case was then remanded on two additional occasions, in January and June 2012, for further development. The case is now once more before the Board for appellate review. For reasons which will become apparent, this appeal is once again being REMANDED to the RO via the Appeals Management Center (AMC) in Washington, D.C. VA will notify you if further action is required on your part. REMAND Upon review of this case, there continues to exist some question as to the current severity of the Veteran's service-connected bilateral mixed hearing loss. In that regard, at the time of the Board's prior remand in June 2012, it was noted that, while it appeared that previous examiners had followed the requirements set forth in the Handbook of Standard Procedures and Best Practices for Audiology Compensation and Pension Examinations (K.C. Dennis ed. 2004) [the Handbook], those examiners had failed to specifically state that they had, in fact, followed those procedures. Given the fact that the Court, at the time of its March 2011 Memorandum Decision, made specific reference to the provisions of that Handbook, it was felt that, as part of any future VA audiometric examination, it must specifically be stated that the requirements of the Handbook had, in fact, been followed. Accordingly, as part of its June 2012 remand, the Board requested that the Veteran be afforded an additional VA audiometric examination, which examination should specifically follow the requirements set forth in the Handbook of Standard Procedures and Best Practices for Audiology Compensation and Pension Examinations, and that the examiner's report must specifically state that those requirements had been followed. Regrettably, while based on a review of the most recent VA audiometric examination in August 2012, the aforementioned requirements were, in fact, followed, the audiometric examiner once again failed to specifically so state. As noted above, such a statement is necessary prior to a final adjudication of the Veteran's claim for an increased rating. See Stegall v. West, 11 Vet. App. 268 (1998). The Board further observes that, at the time of the aforementioned VA audiometric examination in August 2012, it was noted that speech discrimination/recognition scores did not necessarily reflect how the Veteran would function in a normal everyday environment. Further noted was that the Veteran's ability to recognize speech in daily life would vary from situation to situation, and depend on a number of factors, including whether the speaker was male or female, the level and rate of speech, the level of competing noise and the location of that noise, the proximity of the speaker or distance between the speaker and the Veteran, and other contextual cues. However, no opinion was offered regarding whether it was possible to "extrapolate" from test results obtained in a "controlled" environment, such as a soundproof booth, to the Veteran's everyday performance in the real world. Such information would be most useful to a proper adjudication of the Veteran's claim for an increased rating for bilateral mixed hearing loss. Finally, the Board notes that, at the time of the aforementioned VA audiometric examination in August 2012, the Veteran exhibited what could best be described as a fairly significant hearing loss in both his right and left ears. However, the application of the appropriate schedular criteria to that hearing loss results in a noncompensable rating. Significantly, both the Veteran and his spouse have consistently argued that, at least as concerns the Veteran's bilateral mixed hearing loss, the schedular criteria are inadequate. More specifically, it has been argued that the Veteran's hearing difficulties have affected his professional life and that he has failed to hear many conversations or instructions at work, resulting in miscommunication with his supervisors and additional time required for explanation. In fact, the Veteran's wife, who had at one point worked with him in the same facility, indicated that she had witnessed that co-workers "talked around him and over him just to avoid having to say something over and over again." Inasmuch as such difficulties might reasonably be construed as constituting some "interference with employment," the Board is of the opinion that referral of the Veteran's case to the Director, Compensation and Pension Service, for consideration of an extraschedular evaluation would be appropriate in this case. Accordingly, in light of the aforementioned, the case is once again REMANDED to the RO/AMC for the following actions: 1. Any pertinent VA or any other inpatient or outpatient treatment records, subsequent to August 2012, the date of the most recent VA audiometric examination of record, should be obtained and incorporated in the claims folder. The Veteran should be requested to sign the necessary authorization for release of any private medical records to the VA. He should also be asked to identify records of any pertinent treatment. All attempts to procure such records should be documented in the file. If the RO/AMC cannot obtain records identified by the Veteran, a notation to that effect should be included in the claims file. In addition, the Veteran and his representative should be informed of any such problem. 2. The Veteran's entire claims folder should then be furnished to the same VA examiner who conducted the aforementioned August 2012 audiometric examination, or to another VA audiologist, should that examiner be unavailable. Following a review of the Veteran's claims folder, and, in particular, the report of the August 2012 audiometric examination, that examiner should, to the extent possible, attempt to extrapolate the Veteran's audiometric performance in a soundproof booth to his everyday performance in the real world. In addition, the examiner should specifically indicate that, in conducting the August 2012 VA audiometric examination, he followed all requirements noted in the Handbook of Standard Procedures and Best Practices for Audiology Compensation and Pension Examinations. All such information/statements, once obtained, should be made a part of the Veteran's claims folder. 3. The Veteran's appeal should then be referred to the Director, Compensation and Pension Service, for a determination as to whether he is entitled to an extraschedular evaluation under the provisions of 38 C.F.R. 3.321(b)(1) (2012) for his service-connected bilateral mixed hearing loss. 4. The RO/AMC should then readjudicate the Veteran's claim for an increased (compensable) evaluation for bilateral mixed hearing loss with postoperative residuals of otosclerosis in the right ear on both a schedular and extraschedular basis. Should the benefit sought on appeal remain denied, the Veteran and his representative should be provided with a Supplemental Statement of the Case (SSOC). The SSOC must contain notice of all relevant action taken on the claim for benefits since the issuance of the most recent SSOC in January 2013. An appropriate period of time should be allowed for response. Thereafter, the case should be returned to the Board, if in order. The Board intimates no opinion as to the ultimate outcome in this case. The Veteran need take no action unless 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. 2010). _________________________________________________ MICHAEL D. LYON Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2011).