Citation Nr: 1326156 Decision Date: 08/16/13 Archive Date: 08/26/13 DOCKET NO. 06-31 701 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to an initial compensable disability rating for bilateral hearing loss, to include on an extra-schedular basis. 2. Entitlement to an initial compensable disability rating for traumatic brain injury (TBI). REPRESENTATION Appellant represented by: John S. Berry, Attoney at Law ATTORNEY FOR THE BOARD J. D. Deane, Counsel INTRODUCTION The Veteran served on active duty from December 1981 to July 2004. This appeal comes before the Board of Veterans' Appeals (Board) from an August 2006 rating decision rendered by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. The Veteran's case was before the Board in May 2010, at which time it was decided in part and remanded in part. The case was then returned to the Board for further appellate action. Thereafter, in March 2012, the Board denied entitlement to an initial compensable rating for bilateral hearing loss. The Veteran appealed that decision to the United States Court of Appeals for Veterans Claims (Court). In February 2013, the Court issued a memorandum decision that partially vacated the Board's March 2012 decision and remanded the matter on appeal to the Board for action in compliance with the instructions in the memorandum decision. The record before the Board consists of the Veteran's paper claims files and an electronic file known as Virtual VA. The issue of entitlement to a 100 percent temporary total rating (T/TR) under the provisions of 38 C.F.R. § 4.30 based on the need for convalescence following right shoulder surgery on March 8, 2013, has been raised in an April 2013 statement, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. REMAND The Board's review of the record reveals that further development is warranted. In a September 2011 rating decision, the RO granted entitlement to service connection for TBI and assigned an initial noncompensable disability rating, effective August 1, 2004. The Board finds that a January 2012 statement of record constitutes a timely notice of disagreement (NOD) with the decision to assign an initial compensable evaluation for TBI. The RO has not provided the Veteran with a statement of the case (SOC) in response to this NOD. Because the NOD placed the issue in appellate status, the matter must be remanded for the originating agency to issue an SOC. See Manlincon v. West, 12 Vet. App. 238, 240-41 (1999). The Court's February 2013 memorandum decision set aside the part of the March 2012 Board decision that denied entitlement to an initial compensable evaluation for bilateral hearing loss and remanded the matter for further adjudication. The Court found that the Board provided an inadequate statement of reasons or bases with regard to extra-schedular consideration for the Veteran's hearing loss. The Court referenced the Board's determination that the Veteran's manifestations were specifically contemplated by the rating schedule criteria, but then highlighted a VA audiologist's findings that the Veteran's hearing loss significantly affected his occupation. The Court then indicated that the Board failed to explain how those effects were contemplated by the rating schedule criteria. On remand, this matter should be referred to the Director of Compensation and Pension Service for extra-schedular consideration. In this regard, the Under Secretary for Benefits or the Director of Compensation and Pension Service must be advised to consider May 2011 VA examiner's assessment that the Veteran's hearing loss disability had significant effects on his occupation. In the May 2011 report, the examiner indicated that the Veteran would have difficulty interacting and hearing instructions from co-workers and supervisors in the presence of background noise or in a group of people due to his loss of hearing sensitivity. It was further noted that he may also misunderstand instructions due to the high frequency component of the hearing loss. Accordingly, this case is REMANDED to the RO for the following actions: 1. Provide the Veteran and his attorney with a statement of the case with respect to the issue of entitlement to an initial compensable evaluation for TBI and inform them of the requirements to perfect an appeal with respect to this new issue. 2. The RO should refer the matter of entitlement to an initial compensable disability rating for bilateral hearing loss to the Director of Compensation and Pension Service for extra-schedular consideration under the provisions of 38 C.F.R. § 3.321(b)(1). The referral should be accompanied by a full statement as to the Veteran's service-connected hearing loss disability and all other factors having a bearing on this issue, to include the disability's effects on his occupation. 3. The RO should also undertake any other development it determines to be warranted. 4. Then, the RO should readjudicate the issue on appeal. If the benefit sought on appeal is not granted to the Veteran's satisfaction, the Veteran and his attorney should be furnished a supplemental statement of the case and be afforded the requisite opportunity to respond. Thereafter, the case should be returned to the Board for appellate action. By this remand, the Board intimates no opinion as to any final outcome warranted. The Veteran need take no action until he is 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). This REMAND must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or 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). _________________________________________________ Shane A. Durkin 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).