Citation Nr: 1327289 Decision Date: 08/26/13 Archive Date: 08/29/13 DOCKET NO. 10-11 741 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in North Little Rock, Arkansas THE ISSUE Entitlement to an increased evaluation on an extraschedular basis for bilateral hearing loss, currently evaluated as 40 percent disabling. REPRESENTATION Appellant represented by: Virginia A. Girard-Brady, Attorney at Law ATTORNEY FOR THE BOARD J. Davitian, Counsel INTRODUCTION The Veteran served on active duty from November 1953 to November 1955. This case is before the Board of Veterans' Appeals (BVA or Board) on appeal from an August 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Little Rock, Arkansas, that denied an evaluation in excess of 40 percent for bilateral hearing loss. In an April 2011 decision, the Board denied an evaluation in excess of 40 percent for bilateral hearing loss. The Veteran appealed the denial to the United States Court of Appeals for Veterans Claims (Court). In a March 2013 memorandum decision, the Court vacated that portion of the Board's decision that held that referral for extraschedular consideration for bilateral hearing loss was not warranted. The Court remanded the matter for readjudication consistent with its decision. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). 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 contends that his service-connected bilateral hearing loss renders him unable to work. For example, during an RO hearing in 1998, prior to the current appeal period, the Veteran stated that his hearing loss had interfered with his past employment as a supervisor at the Federal Aviation Administration's Management and Training School. The Court set forth a three-step analysis for determining whether referral for extraschedular consideration is appropriate. Thun v. Peake, 22 Vet. App. 111, 115 (2008); see also Barringer v. Peake, 22 Vet. App. 242, 244-246 (2008). The threshold factor for extraschedular consideration is a finding on part of the RO or the Board that the evidence presents such an exceptional disability picture that the available schedular evaluations for the service-connected disability at issue are inadequate. Thun, 22 Vet. App. at 115. Therefore, initially there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability and the established criteria found in the rating schedule for that disability. If the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate and no referral is required. In the second step, however, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the RO or Board must determine whether the claimant's exceptional disability picture exhibits other related factors such as those provided by 38 C.F.R. § 3.321(b)(1) (i.e., marked interference with employment and frequent periods of hospitalization). Id. at 116. When the rating schedule is inadequate to evaluate a claimant's disability picture and that picture has related factors such as marked interference with employment or frequent periods of hospitalization, then, third, the case must be referred for a determination of whether, to accord justice, the claimant's disability picture requires the assignment of an extraschedular rating. Id. After reviewing the record, the Board finds that the evidence satisfies the criteria under section 38 C.F.R. § 3.321(b)(1). The available evidence of record indicates that the Veteran's bilateral hearing loss has caused occupational limitations that are more severe than those contemplated by the current schedular evaluation. Thus, the Board finds that this case presents an exceptional disability picture and the regular schedular standards are inadequate. In sum, the evidence raises the possibility that the Veteran's service-connected bilateral hearing loss disability impacts his employment beyond the level contemplated by the rating schedule. See 38 C.F.R. §§ 4.85 - 4.87, Diagnostic Code 6100 (listing the schedular criteria for rating bilateral hearing loss). Therefore, the issue of entitlement to an increased disability rating on an extraschedular basis for service-connected bilateral hearing loss is remanded for referral to the Under Secretary for Benefits or the Director of the Compensation and Pension Service in accordance with 38 C.F.R. § 3.321(b)(1). Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested.) 1. Refer the case to the Under Secretary for Benefits or the Director of Compensation and Pension Service for consideration of an extraschedular evaluation for the Veteran's service-connected bilateral hearing loss under the provisions of 38 C.F.R. § 3.321(b)(1). 2. Then, readjudicate the issue of entitlement to an increased disability rating on an extraschedular basis for service-connected bilateral hearing loss, to include consideration of an extraschedular evaluation pursuant to 38 C.F.R. § 3.321(b). If the benefit sought on appeal remains denied, the Veteran and his attorney should be provided with a supplemental statement of the case that contains notice of all relevant actions taken, including a summary of the evidence and applicable law and regulations considered pertinent to the issue. An appropriate period of time should be allowed for response by the Veteran and his attorney. Thereafter, the case should be returned to the Board for further appellate consideration, if in order. 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). _________________________________________________ ROBERT E. SULLIVAN 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).