Citation Nr: 1336876 Decision Date: 11/13/13 Archive Date: 11/26/13 DOCKET NO. 09-35 007 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to an increased compensable rating for bilateral hearing loss disability, before July 6, 2011, on an extra-schedular basis. 2. Entitlement to a rating in excess of 20 percent, as of July 6, 2011, for bilateral hearing loss disability on an extra-schedular basis. 3. Entitlement to service connection for tinnitus. REPRESENTATION Veteran represented by: Daniel G. Krasnegor, Attorney WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD J.A. Flynn, Associate Counsel INTRODUCTION The Veteran served on active duty from November 1968 to August 1971. This matter comes before the Board of Veterans' Appeals (Board) from a September 2008 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO) that denied the benefit sought on appeal. In July 2011, the Veteran testified at a Travel Board hearing before the undersigned Veterans Law Judge, and a transcript of this hearing has been associated with the record. In a November 2011 decision, the Board denied entitlement to a compensable rating for bilateral hearing loss on and before July 5, 2011, and granted an increased rating of 20 percent for bilateral hearing loss as of July 6, 2011. The Board declined to refer the claim for consideration of an extra-schedular rating. The Board also remanded a claim of entitlement to service connection for tinnitus for development, which has not been completed. The Veteran appealed the November 2011 decision to the United States Court of Appeals for Veterans Claims. In a March 2013 Memorandum Decision, the Court set aside that portion of the Board's November 2011 decision that determined that referral of the Veteran's claim for an extra-schedular rating was not warranted and remanded the matter for further proceedings consistent with the decision. The March 2013 Decision did not disturb the Board's findings regarding the schedular rating of the bilateral hearing loss disability. The appeal is REMANDED to the VA RO. REMAND The Court's March 2013 Decision remanded the Veteran's claim for an increased rating for a bilateral hearing loss disability for further consideration of the appropriateness of an extra-schedular rating. The Court's Decision noted that while the Veteran underwent VA audiological examinations in September 2008 and July 2011, neither one of the examinations described the functional effects caused by the Veteran's hearing loss disability. The Court noted that such a description is required in order to determine whether an extra-schedular rating is warranted. Without that a description, the Court found the Board's extra-schedular analysis to be inadequate. Accordingly, on remand, the Veteran should be provided with an audiological examination that not only records objective test results, but that also fully describes the functional impairment presented by the Veteran's hearing loss. Following that examination, the RO should consider all of the evidence of record in order to determine whether the Veteran's claims should be forwarded to appropriate officials for consideration of the assignment of an extra-schedular rating. In November 2011, the Board remanded the claim for service connection for tinnitus so that the Veteran could be examined and an opinion regarding the etiology of tinnitus could be obtained. The examination was conducted, but the RO has not yet reviewed that examination report and provided a supplemental statement of the case. Therefore, that claim is remanded again for readjudication. Accordingly, the case is REMANDED for the following actions: 1. Schedule the Veteran for an audiological examination to determine the current severity of his bilateral hearing loss disability. Puretone threshold testing, the Maryland CNC speech audiometric test, and any other tests or studies deemed necessary by the examiner should be performed. The examiner must review the claims file and must note that review in the report. The examiner is specifically requested to fully describe the functional effects caused by the Veteran's hearing disability. 2. Then readjudicate the claims for service connection for tinnitus and whether referral of the claim for increased rating for hearing loss warrants referral for consideration of the assignment of an extra-schedular rating. If any decision is adverse to the Veteran, issue a supplemental statement of the case and allow the appropriate time for response. Then, return the claim to the Board. The Veteran has the right to submit additional evidence and argument on the matters that 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 or the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. 38 U.S.C.A. §§ 5109B, 7112 (West 2002 & Supp. 2013). _________________________________________________ Harvey P. Roberts Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board 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) (2013).