Citation Nr: 1553020 Decision Date: 12/18/15 Archive Date: 12/23/15 DOCKET NO. 09-26 966 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUE Entitlement to an extraschedular rating in excess of 10 percent for bilateral hearing loss. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL The Veteran and his spouse ATTORNEY FOR THE BOARD A.M. Ivory, Counsel INTRODUCTION The Veteran served on active duty from June 1970 to December 1970 and from June 1974 to July 1974. This matter comes before the Board of Veterans' Appeals (Board) from a February 2008 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California. In January 2011, the Veteran and his spouse testified before the undersigned at a hearing at the RO; a transcript of the hearing has been associated with the claims file. In April 2011, the Board remanded the matter to the agency of original jurisdiction (AOJ) for further evidentiary development. In a 2011 rating decision and supplemental statement of the case (SSOC), the AOJ granted a 20 percent rating for bilateral hearing loss, on a schedular basis, effective June 9, 2011. Thereafter, the matter was returned to the Board. In an October 2011 decision, the Board denied an initial increased rating for bilateral hearing loss on a schedular basis. The Board also remanded the matter of entitlement to an extraschedular rating for bilateral hearing loss to the Under Secretary for Benefits or the Director of Compensation and Pension Service. In an administrative review issued February 21, 2012, the Director of Compensation Service denied entitlement to an extraschedular evaluation for bilateral hearing loss. The AOJ issued an SSOC in March 2012 that denied entitlement to an extraschedular evaluation for bilateral hearing loss, and the matter was returned to the Board. In a December 2013 decision, the Board granted entitlement to an extraschedular 10 percent rating for bilateral hearing loss for the entire appeal period. The Veteran appealed that decision to the United States Court of Appeals for Veterans Claims (Court). In August 2014, the Veteran's attorney and the VA General Counsel submitted a Joint Motion for Partial Remand, in which they agreed to vacate the portion of the December 2013 decision that denied an extraschedular rating in excess of 10 percent and remand the issue to the Board for action consistent with the Joint Motion, i.e., provide adequate reasons and bases for its decision to limit the extraschedular rating to 10 percent. In September 2014, the Court issued an Order which incorporated the Joint Motion for Remand (JMR). In February 2015 and August 2015, the Board remanded the matter to the AOJ to afford the Veteran an additional VA audiological examination. This appeal was processed using the Veterans Benefits Management System (VBMS) and Virtual VA paperless claims processing systems. The appeal is REMANDED to the AOJ. VA will notify the appellant if further action is required. REMAND Although the Board regrets the additional delay, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's claims so that he is afforded every possible consideration. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. In August 2015 the appeal was remanded for a new VA examination as the May 2015 VA examination was not valid; the examiner found that there was evidence on the Veteran's part of symptom embellishment and submaximal effort A new VA examination was warranted because the remainder of the medical evidence of record did not show evidence of symptom embellishment or submaximal effort. There is no indication that the Veteran was ever scheduled for a VA examination in compliance with the August 2015 Board remand. In fact, there was no development taken after the August 2015 remand. Therefore, the Board finds that the remand orders were not complied with and the law mandates that where the remand orders of the Board or the Courts are not complied with, the Board errs as a matter of law when it fails to ensure compliance. Stegall v. West, 11 Vet. App. 268, 271 (1998). Thus, the Veteran should be scheduled for a new VA examination to determine the current nature and severity of his bilateral hearing loss; this VA examination should be done by a different examiner than the May 2015 VA examiner. Prior to any VA examination, the RO should obtain any pertinent treatment records not already associated with the claims file. Accordingly, the case is REMANDED for the following action: 1. Obtain and associate with the claims file all updated VA and private treatment records. 2. Schedule the Veteran for a VA examination to determine the current nature and severity of his bilateral hearing loss. If possible, an examiner other than the one that conducted the May 2015 VA examination should conduct the new examination. The claims file and a copy of this remand should be provided to the examiner for review. All appropriate testing should be conducted. The examiner should identify auditory thresholds, in decibels, at frequencies of 1000, 2000, 3000, and 4000 Hertz. A Maryland CNC Test should also be administered to determine speech recognition scores. The examiner should fully describe the functional effects of the Veteran's bilateral hearing loss. This should be based on consideration of the current test results as compared to the Veteran's documented history and assertions. The examiner should comment on the effectiveness of hearing aids on speech discrimination and puretone hearing in his current employment. If the examiner is unable to report puretone threshold values, the examiner should explain, in detail, why such values could not be reported. 3. The RO should review the claims file to ensure that all the foregoing requested development is completed, and, thereafter, arrange for any additional development indicated. The RO should then readjudicate the claim on appeal. If any benefit sought remains denied, the RO should issue an appropriate SSOC and provide the Veteran and his representative the requisite time period to respond. The case should then be returned to the Board for further appellate review, if otherwise in order. No action is required of the appellant unless he is notified. The purposes of this remand are to ensure notice is complete, and to assist the Veteran with the development of his claims. The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). No action is required of the appellant until further notice. The Board takes this opportunity to advise the appellant that the conduct of the efforts as directed in this remand, as well as any other development deemed necessary, is needed for a comprehensive and correct adjudication of his claims. His cooperation in VA's efforts to develop his claims, including reporting for any scheduled VA examination, is both critical and appreciated. The appellant is also advised that failure to report for any scheduled examination may result in the denial of a claim. 38 C.F.R. § 3.655. 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 2014). _________________________________________________ MARJORIE A. AUER Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), 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) (2015).