Citation Nr: 1325972 Decision Date: 08/15/13 Archive Date: 08/26/13 DOCKET NO. 12-23 009 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Honolulu, Hawaii THE ISSUE Entitlement to an initial, compensable rating for bilateral hearing loss. REPRESENTATION Appellant represented by: Hawaii Office of Veterans Services WITNESSES AT HEARING ON APPEAL Appellant and N.S., observer ATTORNEY FOR THE BOARD A. Zenzano, Associate Counsel INTRODUCTION The Veteran served on active duty from November 1952 to November 1956. This appeal to the Board of Veterans' Appeals (Board) arose from a July 2011 rating decision in which the RO in Honolulu, Hawaii, inter alia, granted service connection and assigned an initial noncompensable rating for bilateral hearing loss, effective November 12, 2010. In August 2011, the Veteran filed a notice of disagreement (NOD) with the assigned disability rating. A statement of the case (SOC) was issued in June 2012, and the Veteran filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans' Appeals) in August 2012. In June 2013, the Veteran testified during a Board hearing before the undersigned Veterans Law Judge at the RO. A transcript of that hearing is of record. During the hearing, the Veteran submitted additional lay evidence directly to the Board, with a waiver of initial RO consideration of the evidence. See 38 C.F.R. §§ 20.800, 20.1304 (2012). Also, in June 2013, the undersigned Veterans Law Judge, on her own motion, advanced this appeal on the Board's docket, pursuant to 38 U.S.C.A. § 7107(a)(2)(C) (West 2002) and 38 C.F.R. § 20.900(c) (2012). Because the appeal involves disagreement with the initial rating assigned following the grant of service connection for bilateral hearing loss, the Board has characterized this matter in light of the distinction noted in Fenderson v. West, 12 Vet. App. 119, 126 (1999) (distinguishing initial rating claims from claims for increased ratings for already service-connected disability). As a final preliminary matter, the Board notes that, in addition to the paper claims file, there is a paperless, electronic (Virtual VA) claims file that has been reviewed in connection with the Veteran's claim. For the reasons expressed below, the matter on appeal is being remanded to the RO, via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran when further action, on his part, is required. REMAND The Board's review of the claims file reveals that further action in this appeal is warranted. During the June 2013 hearing, the Veteran testified that since the last VA audiological examination in October 2012, his hearing acuity had worsened. Accordingly, a remand is necessary in order to schedule him for an appropriate VA examination in order to assess the current severity of his service-connected bilateral hearing loss. See Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994); VAOPGCPREC 11-95 (1995). Also during the hearing, the Veteran described difficulties in his usual occupation as an architect, particularly when he must attend community meetings and when representing clients before the planning commission. The Board interprets these statements as raising the matter of entitlement to a higher rating on an extra-schedular basis, pursuant to 38 C.F.R. § 3.321(b) (2012). A determination of whether a claimant is entitled to an extra-schedular rating under § 3.321(b) is a three step inquiry. Thun v. Peake, 22 Vet. App. 111, 115 (2008). If the RO or Board determines that (1) the schedular evaluation does not contemplate the claimant's level of disability and symptomatology, and (2) the disability picture exhibits other related factors such as marked interference with employment or frequent periods of hospitalization, then (3) the case must be referred to an authorized official to determine whether, to accord justice, an extra-schedular rating is warranted. Id. Given the claim of worsening, and the need for medical findings as to the functional effects of the Veteran's hearing loss, the RO should arrange for the Veteran to undergo further VA examination, by an audiologist or ear, nose and throat (ENT) physician. Prior to arranging for the Veteran to undergo examination, to ensure that all due process requirements are met, and the record before the examiner is complete, the RO should also give the Veteran another opportunity to present information and/or evidence pertinent to the claim on appeal, explaining that he has a full one-year period for response. See 38 U.S.C.A § 5103(b)(1) (West 2002); but see 38 U.S.C.A. § 5103(b)(3) (West Supp. 2012) (amending the relevant statute to clarify that VA may make a decision on a claim before the expiration of the one-year notice period). In its letter, the RO should notify the Veteran of what evidence is needed to support a claim for a higher rating on an extra-schedular basis pursuant to 38 C.F.R. § 3.321(b)(1). Thereafter, the RO should attempt to obtain any additional evidence for which the Veteran provides sufficient information, and, if needed, authorization, following the current procedures prescribed in 38 C.F.R. § 3.159. The actions identified herein are consistent with the duties imposed by the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159. However, identification of specific actions requested on remand does not relieve the RO of the responsibility to ensure full compliance with the VCAA and its implementing regulations. Hence, in addition to the actions requested above, the RO should also undertake any other development and/or notification action deemed warranted by the VCAA prior to adjudicating the claim on appeal. The RO's adjudication of the claim should include specific consideration of whether "staged rating" (assignment of different ratings for distinct periods of time, based on the facts found) pursuant to Fenderson (cited above), is appropriate, as well as whether the procedures of 38 C.F.R. § 3.321(b)(1), foe assignment of a higher, extra-schedular rating are invoked. Accordingly, this matter is hereby REMANDED for the following action: 1. Send to the Veteran and his representative a letter requesting that the Veteran provide sufficient information, and if necessary, authorization to obtain any additional evidence pertinent to the claim on appeal that is not currently of record. Notify the Veteran of what is needed to support a claim for a higher rating on an extra-schedular basis pursuant to 38 C.F.R. § 3.321(b)(1). Clearly explain to the Veteran that he has a full one-year period to respond (although VA may decide the claim within the one-year period). 2. If the Veteran responds, assist him in obtaining any additional evidence identified, following the current procedures set forth in 38 C.F.R. § 3.159. All records/responses received should be associated with the claims file. If any records sought are not obtained, notify the Veteran of the records that were not obtained, explain the efforts taken to obtain them, and describe further action to be taken. 3. After all records and/or responses received from each contacted entity have been associated with the claims file, arrange for the Veteran to undergo VA examination by an ENT physician or audiologist. The entire claims file, to include a complete copy of this REMAND, must be made available to the individual designated to examine the Veteran, and the report of examination should include discussion of the Veteran's documented medical history and assertions. All indicated tests and studies (to include audiometry and speech discrimination testing) should be accomplished, and all clinical findings should be reported in detail. Based on consideration of the testing results and the Veteran's documented history and assertions, the examiner should describe the functional effects of the Veteran's bilateral hearing loss. In doing so, the examiner should specifically consider and discuss the Veteran's assertions that he has difficulty hearing during meetings, in his usual occupation as an architect. The examiner should set forth all current examination findings, along with the complete rationale for the conclusions reached, in a printed (typewritten) report. 4. To help avoid future remand, the RO must ensure that all requested actions have been accomplished (to the extent possible) in compliance with this REMAND. If any action is not undertaken, or is taken in a deficient manner, appropriate corrective action should be undertaken. Stegall v. West, 11 Vet. App. 268 (1998). 5. After completing the requested actions, and any additional notification and/or development deemed warranted, readjudicate the claim on appeal in light of all pertinent evidence and legal authority, to include consideration of whether "staged rating" pursuant to Fenderson (cited to above) is appropriate, and whether the procedures of 38 C.F.R. § 3.321(b)(1), for assignment of a higher, extra-schedular rating, are invoked. 6. If the benefit sought on appeal remains denied, furnish to the Veteran and his representative an appropriate SSOC that includes clear reasons and bases for all determinations, and afford them the appropriate time period for response before the claims file is returned to the Board for further appellate consideration. The purpose of this REMAND is to afford due process, and to accomplish additional development and adjudication; it is not the Board's intent to imply whether the benefit requested should be granted or denied. The Veteran need take no action until otherwise notified, but he may furnish additional evidence and/or argument during the appropriate time frame. See Kutscherousky v. West, 12 Vet. App. 369 (1999); Colon v. Brown, 9 Vet. App. 104, 108 (1996); Booth v. Brown, 8 Vet. App. 109 (1995); Quarles v. Derwinski, 3 Vet. App. 129, 141 (1992). This REMAND must be afforded expeditious treatment. The law requires that all claims 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). _________________________________________________ JACQUELINE E. MONROE 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 the appeal. 38 C.F.R. § 20.1100(b) (2012).