Citation Nr: 1600831 Decision Date: 01/08/16 Archive Date: 01/21/16 DOCKET NO. 11-16 423 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUE Entitlement to a compensable initial disability rating for left ear hearing loss from January 1, 2009 on an extraschedular basis. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD K. K. Buckley, Counsel INTRODUCTION The Veteran served on active duty from July 1981 to October 1984. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois, which granted service connection for left ear hearing loss and assigned a noncompensable evaluation from May 23, 2006. In September 2012, the Veteran presented sworn testimony during a personal hearing in Chicago, Illinois, which was chaired by the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the Veteran's VA claims file. In April 2014, the Board denied entitlement to a compensable rating for left ear hearing loss prior to January 1, 2009 and remanded the matter of entitlement to a compensable rating from January 1, 2009 for further evidentiary development. The VA Appeals Management Center (AMC) continued the previous denial in a September 2014 supplemental statement of the case (SSOC). In a December 2014 decision, the Board denied the Veteran's claim. The Veteran appealed the denial to the United States Court of Appeals for Veterans Claims (Court). In October 2015, the Court vacated the Board's decision and remanded the matter for appropriate action, pursuant to an October 2015 Joint Motion for Partial Remand. In the Joint Motion, the parties noted that the Veteran had abandoned his claim of entitlement to an increased rating for left ear hearing loss from January 1, 2009 on a schedular basis. Accordingly, the issue has been rephrased above. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND In the October 2015 Joint Motion, the parties agreed that the Board failed to explain its finding that the Veteran's left ear hearing loss claim does not warrant referral for extraschedular consideration under the provisions of 38 C.F.R. § 3.321(b)(1). To this end, the parties noted that during the September 2012 Board hearing, the Veteran testified that he experienced difficulty communicating with family members. He also asserted that his hearing loss affected his ability to drive a school bus. Additionally, during in the July 2014 VA examination, the Veteran reported that he had difficulty hearing in public. Review of the claims file demonstrates that the Veteran has asserted experiencing significant functional impairment, including occupational impairment, as a result of his left ear hearing loss. Accordingly, the Veteran's claim should be referred to the Under Secretary for Benefits or the Director of Compensation Service to determine if extraschedular consideration under 38 C.F.R. § 3.321 is warranted. Updated VA treatment records should also be secured on remand. Accordingly, the case is REMANDED for the following action: 1. Obtain all outstanding VA outpatient records. 2. Then refer the case to the Under Secretary for Benefits or the Director of Compensation Service for an initial determination as to whether the Veteran is entitled to the assignment of an extraschedular rating for his left ear hearing loss in accordance with the provisions of 38 C.F.R. § 3.321(b). The rating board should include a full statement of all factors having a bearing on the issue. 3. After completing the above, and any additional notification and/or development deemed warranted by the record, readjudicate the increased rating claim in light of all pertinent evidence and legal authority. If the decision remains adverse to the Veteran, issue a supplemental statement of the case and allow appropriate time for response. Then, return the case to the Board. No action is required of the Veteran until notified by the RO; however, the Veteran is advised that failure to report for any scheduled examination may result in denial of the claim. 38 C.F.R. § 3.655 (2015). The Veteran 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 or by 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 2014). _________________________________________________ THOMAS J. DANNAHER Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), only a decision of the Board is appealable to the Court. 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).