Citation Nr: 1319576 Decision Date: 06/18/13 Archive Date: 06/27/13 DOCKET NO. 09-50 697 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUE Entitlement to an initial compensable evaluation for bilateral hearing loss. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD D.J. Drucker, Counsel INTRODUCTION The Veteran had active military service from October 1968 to February 1971. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a November 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Louisville, Kentucky, that, in pertinent part, denied service connection for right ear hearing loss and granted service connection for left ear hearing loss, that was assigned an initial compensable evaluation. The Veteran perfected an appeal as to the denial of service connection for his right ear and the disability rating assigned for his left ear. Thereafter, in a July 2010 rating decision, the RO granted service connection for right ear hearing loss and recharacterized the Veteran's disability on appeal as bilateral hearing loss. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND The Veteran seeks an initial compensable evaluation for his service-connected bilateral hearing loss. He argues that the severity of his hearing loss warrants a compensable disability rating due to its impact on his personal life and occupational efforts. In an August 2010 written statement, he contended that the severity of his hearing loss was not adequately represented by recent audiometric tests. In a May 2012 written statement, his representative noted that it was over three years since the Veteran's last VA examination. The record reflects that the Veteran last underwent VA audiology examination in conjunction with his claim in January 2010. In support of his claim, he submitted a private audiogram performed in February 2011 that reflects some loss of hearing acuity compared to prior testing. As that examination is also over two years old, and as it does not appear to contain speech recognition testing compatible with VA regulations, another examination should be arranged to ascertain the current severity of the Veteran's hearing loss. Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994). Again, VA is obliged to afford a veteran a contemporaneous examination where there is evidence of an increase in the severity of the disability. VAOPGCPREC 11-95 (1995). Further, while the Board cannot assign an extraschedular rating in the first instance, it can specifically adjudicate whether to refer a case to the VA Director of Compensation and Pension (C&P) Services for an extraschedular evaluation when the issue is either raised by the claimant or is reasonably raised by the evidence of record. See Thun v. Peake, 22 Vet. App. 111, 115 (2008); Barringer v. Peake, 22 Vet. App. 242 (2008). If, and only if, the Director determines that an extra-schedular evaluation is not warranted, does the Board then have jurisdiction to decide the extra-schedular claim on the merits. In fact, although the Board is precluded from initially assigning an extraschedular rating, there is no restriction on the Board's ability to review the adjudication of an extraschedular rating once the Director of C&P determines that an extraschedular rating is not warranted. Anderson v. Shinseki, 22 Vet. App. 423, 427-8 (2009). See Floyd v. Brown, 9 Vet. App. 88, 9 (1996); see also 38 U.S.C.A. §§ 511(a), 7104(a) (West 2002) ("All questions in a matter ... subject to decision by the Secretary shall be subject to one review on appeal to the ... Board."). Here, there is medical and lay evidence of record to indicate that the Veteran's service-connected bilateral hearing loss has significant effects on his occupation, and his case must be referred to the Director of C&P for special consideration under 38 C.F.R. § 3.321(b) (2012). Notably, in his August 2010 signed statement, the Veteran described his job as a Customer Service Representative that required he sit at a reception desk, answer telephone calls, and communicate with visitors. He had difficulty understanding callers that caused difficulty in relaying accurate messages and often left his workstation to enter the lobby to hear visitors that left the telephone unattended. The Veteran also reported that extraneous noise interfered with his ability to hear conversational speech. He requested a reasonable accommodation and additional sound insulation in the walls was added to his work station. Moreover, in an August 2010 signed statement, the Veteran's supervisor described the effects of his hearing loss on his ability to perform his job responsibilities. In fact, in January 2010, the VA examiner said that the Veteran's hearing loss had "significant effects" on his occupation and the disability's impact on occupational activities was "hearing difficulty". The Veteran has reported having difficulty with conversational speech when there is background noise. See Martinak v. Nicholson, 21 Vet. App. 447, 455 (2007). The Board also notes that VA medical records, dated from March 2010 to February 2011, were recently added to the file. Some of this evidence was not considered by the RO in the first instance and such consideration was not waived by the Veteran or his representative. See Disabled American Veterans v. Secretary of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003); 38 C.F.R. §§ 19.37, 20.1304 (2012). Recent VA medical records from the VA medical center (VAMC) in Louisville, Kentucky, and the Newburg Community Based Outpatient Clinic (CBOC), dated since February 2011, should also be obtained. Accordingly, the case is REMANDED for the following action: 1. Obtain all medical records regarding the Veteran's treatment at the VAMC in Louisville and the Newburg CBOC, for the period from February 2011 to the present, and from any additional VA and non-VA medical provider identified by him. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C.A. § 5103A(b)(2) (West 2002 & Supp. 2012) and 38 C.F.R. § 3.159(e) (2012). 2. After completion of the above development, schedule the Veteran for a VA audiology examination. The claims folder must be provided to and reviewed by the examiner in conjunction with the examination. All indicated tests and studies should be performed, including audiometric testing, and all clinical findings should be set forth in detail. It is requested that the VA examiner indicate all present symptoms and manifestations attributable to the Veteran's service-connected bilateral hearing loss. The VA examiner should further comment upon the effect of hearing loss on the Veteran's occupational functioning and daily activities. 3. After the above has been completed, refer the Veteran's claim to the Director of Compensation and Pension Service, pursuant to the provision of 38 C.F.R. § 3.321(b) for consideration of whether this benefit is warranted on an extra-schedular basis. Either the Under Secretary or the Director must review the evidence of record to determine whether the Veteran's service-connected bilateral hearing loss has created marked interference with employment or frequent periods of hospitalization warranting an extra- schedular rating. A review of the claims folder is required. 4. Upon completion of the above, the RO should readjudicate the claim of entitlement to an initial compensable rating for bilateral hearing loss, to include extraschedular consideration. If any benefit sought on appeal remains denied, the Veteran and his representative should be furnished an appropriate SSOC and be provided an opportunity to respond. Thereafter, the case should be returned to the Board, if in order. No action is required of the Veteran until he is notified by the RO; however, the Veteran is advised that failure to report for any scheduled examination may result in the denial of his claim. 38 C.F.R. § 3.655 (2012). 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. 2012). _________________________________________________ ERIC S. LEBOFF 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) (2012).