Citation Nr: 1321332 Decision Date: 07/02/13 Archive Date: 07/12/13 DOCKET NO. 06-38 996 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Diego, California THE ISSUE Entitlement to an increased (compensable) rating for bilateral hearing loss. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Thomas H. O'Shay, Counsel INTRODUCTION The Veteran had active service from July 1987 to September 1991. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a January 2006 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California. The Veteran testified at a Board videoconference hearing held with the RO in November 2009. The Board remanded this case in December 2009 for further development. Thereafter, in a May 2011 decision the Board denied entitlement to a compensable rating for bilateral hearing loss. The Veteran appealed the May 2011 decision to the United States Court of Appeals for Veterans Claims (Court), and in April 2012, the Court granted a Joint Motion filed by the parties, and vacated the Board's decision, remanding the case to the Board. In March 2013, the Board remanded the case in compliance with the Joint Motion. 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 Board's March 2013 remand requested that the Veteran be scheduled for a VA examination, and also requested that the Agency of Original Jurisdiction (AOJ) determine whether the case should be referred to the Director, Compensation and Pension Service for consideration of an extraschedular rating. The record reflects that the Veteran was thereafter scheduled for a VA examination in April 2013, but failed to report. The AOJ then issued a supplemental statement of the case (SSOC) in May 2013 which continued the denial of the claim. Notably, however, the AOJ did not, in the SSOC or in any rating action, comply with the Board's other instruction to specifically consider whether the matter should be referred for extraschedular consideration. Indeed, conspicuously absent in the May 2013 SSOC's recitation of what the Board's remand required is any mention of the instruction to consider referral for extraschedular consideration. The Board notes that a remand confers on the appellant, as a matter of law, the right to compliance with the terms of the remand order and imposes on VA a concomitant duty to ensure compliance with those terms. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The Board consequently must remand the case for compliance with the prior remand instructions. As to the VA examination the Veteran did not attend, the Board notes that he has not offered an explanation for his failure to report, and it appears that notice of the examination was sent to his most recent address of record. Given, however, that the Veteran has otherwise been consistent in attending his scheduled examinations, and as the Board is remanding the case again, the Board finds that the Veteran should be afforded one more opportunity to attend the examination. He is reminded, however, that the duty to assist is not a one-way street. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). The Board expects his cooperation with VA's attempt to assist him in his claim. Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for an examination to determine the current severity of his bilateral hearing loss. The claims file and a copy of this remand should be made available to the examiner. The report should state that the claims file was reviewed. The examiner should perform an evaluation for hearing impairment as required by 38 C.F.R. § 4.85, that shall include a controlled speech discrimination test (Maryland CNC) and a pure tone audiometry test. The VA examiner should a) provide a description of any functional effects caused by service-connected hearing disability; b ) review the prior adequate hearing reports and render an opinion on the current level of hearing loss and its impact on the Veteran; and c) opine whether the evidence shows that the disability has undergone varying or distinct levels of severity throughout the entire period of time the rating claim has been pending. The examiner should reference the May 2008 private employer record that includes a hearing test for employment purposes. All opinions and conclusions expressed must be supported by a rationale in a report. 2. Thereafter, and even if the Veteran fails to report for any scheduled VA examination, the AOJ should make the following determinations: A) Determine if the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. If not, no further analysis is needed; B) If the schedular evaluation is inadequate because it does not contemplate the level of disability and symptomatology, determine whether the Veteran's exceptional disability picture exhibits other related factors such as (but not limited to) "marked interference with employment" or "frequent periods of hospitalization." If not, no further analysis is needed; C) If the rating schedule is inadequate and the Veteran has marked interference with employment, frequent periods of hospitalization or other related factors then refer to the case to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for a determination of whether, to accord justice, the Veteran's disability picture requires the assignment of an extraschedular rating. 3. The AOJ should then re-adjudicate the issue on appeal. If the decision remains in any way adverse to the Veteran, provide a supplemental statement of the case (SSOC) to the Veteran and his representative. The SSOC must contain notice of all relevant actions taken on the claim for benefits, to include the applicable law and regulations considered pertinent to the issue remaining on appeal. An appropriate period of time should be allowed for response. Thereafter, the case should be returned to the Board, if appropriate. 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 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 remanded by the Board or by the Court 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). _________________________________________________ JAMES L. MARCH 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).