Citation Nr: 1320806 Decision Date: 06/27/13 Archive Date: 07/05/13 DOCKET NO. 06-23 640 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in North Little Rock, Arkansas THE ISSUES 1. Entitlement to extraschedular consideration under 38 C.F.R. § 3.321(b)(1) for service-connected bilateral hearing loss. 2. Entitlement to a total disability rating based upon individual unemployability (TDIU). REPRESENTATION Veteran represented by: Robert Chisholm, Attorney ATTORNEY FOR THE BOARD Helena M. Walker, Counsel INTRODUCTION The Veteran served on active duty from May 1956 to May 1960, and May 1961 to May 1965. This case comes before the Board of Veterans' Appeals (Board) on appeal of a March 2006 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in North Little Rock, Arkansas. In a November 2011 decision, the Board denied a rating in excess of 40 for bilateral hearing loss between September 2004 and November 2005; denied a rating in excess of 30 percent between November 2005 and November 2009; and awarded a 60 percent rating, effective in November 2009. The Veteran appealed this decision to the Court of Appeals for Veterans Claims (Court), and in January 2013, the parties filed a joint motion for remand (JMR). Based on the JMR, the Court issued an order that same month vacating and remanding the Board's January 2011 decision only to the extent that it declined to refer the claim of entitlement to an increased rating for bilateral hearing loss on an extraschedular basis. Also in the November 2011 decision, the Board remanded the issue of entitlement to a TDIU for further development. The requested action was taken and the case has now been returned to the Board for adjudication. The appeal is REMANDED to the RO. VA will notify the Veteran if further action is required. REMAND The Board finds that further development is necessary regarding the Veteran's request for an extraschedular rating for his bilateral hearing loss and his claim of entitlement to a TDIU. The Veteran was originally granted service connection for bilateral hearing loss in May 1987 and assigned a 20 percent evaluation. In March 2006, the evaluation was increased to 40 percent effective September 9, 2004, and then a 30 percent evaluation was assigned effective November 17, 2005. In June 2010, the Veteran's bilateral hearing loss claim was referred to the Under Secretary for Benefits or the Director of Compensation and Pension for extraschedular consideration under 38 C.F.R. § 3.321(b)(1). Subsequent to that, the Veteran was afforded another VA audiological examination, following which, he was awarded a 60 percent rating, effective June 28, 2011. In a November 2011 Board decision, a 60 percent rating for bilateral hearing loss was awarded, effective November 18, 2009. As discussed in the JMR, the parties agreed that although the Veteran's claim was once referred to the Veterans Benefits Administration (VBA) for extraschedular consideration, this referral prompted the Director to request that the Veteran be scheduled for a current audiological examination. As a result of the findings in the new VA examination, the Veteran was awarded an increased disability rating. The parties agreed that the Board did not provide adequate reasons and bases for why another referral was not made to (who is now known as) the Director of Compensation Service for extraschedular consideration. In light of the concerns expressed in the JMR, the Veteran's contentions regarding the impact of his hearing loss on employability, and the fact that significant additional evidence has been received since the case was last considered for extraschedular consideration, the Board finds that the Veteran's claim should be forwarded to the Director of Compensation Service to determine whether extraschedular consideration is warranted for his bilateral hearing loss. Consideration of the Veteran's claim for entitlement to a TDIU remains deferred pending resolution of the Veteran's claim for an extraschedular rating for his bilateral hearing loss, and as such, is inextricably intertwined with this claim. See Parker v. Brown, 7 Vet. App. 116 (1994); Harris v. Derwinski, 1 Vet. App. 180 (1991). Accordingly, the case is REMANDED for the following action: 1. The RO must refer the matter of the increased evaluation for bilateral hearing loss to the Director of Compensation Service for extraschedular consideration under 38 C.F.R. § 3.321(b)(1). The Board specifically directs the attention of the reviewing official to the Veteran's statements that he lost his job due to his hearing loss disability. 2. The RO is free to undertake any additional development deemed necessary regarding his TDIU claim, to include referring the TDIU claim to the Director of Compensation Service for extraschedular consideration pursuant to 38 C.F.R. § 4.16(b) if appropriate. 3. Thereafter, readjudicate the issues on appeal-including his request for a TDIU. If any benefit sought on appeal is not granted to the Veteran's satisfaction, the Veteran and his representative should be provided with a Supplemental Statement of the Case (SSOC) and afforded the opportunity to respond thereto. The matter should then be returned to the Board, if in order, for further appellate process. By this remand, the Board intimates no opinion as to any final outcome warranted. No action is required of the Veteran until he is otherwise notified but he has the right to submit additional evidence and argument on the 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). _________________________________________________ MICHAEL LANE 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).