Citation Nr: 1614294 Decision Date: 04/07/16 Archive Date: 04/25/16 DOCKET NO. 11-12 661 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to an extraschedular evaluation for left ear hearing loss disability, currently rated as noncompensable. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Appellant ATTORNEY FOR THE BOARD Hallie E. Brokowsky, Counsel INTRODUCTION The Veteran served on active duty from June 1956 to March 1961. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an April 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In pertinent part, the April 2010 rating decision granted the Veteran service connection for left ear hearing loss disability, effective September 4, 2009, and assigned a noncompensable initial disability rating. The Board remanded the Veteran's claim for additional development in March 2014. The additional development was completed and a supplemental statement of the case was issued in November 2014. In a January 2015 decision, the Board denied the claim of entitlement to a compensable disability rating for left ear hearing loss disability. The Veteran then appealed the Board' decision to the United States Court of Appeals for Veterans Claims (Court). In December 2015, the Court issued a single judge memorandum decision vacating the January 2015 decision as to entitlement to an increased, compensable disability rating for left ear hearing loss disability on an extraschedular basis, and remanded the matter to the Board for further development. The Court did not disturb the Board's January 2015 denial of the claim for a compensable disability rating for left ear hearing loss disability on a schedular basis. This appeal was processed using the Virtual VA and Veterans Benefits Management System (VBMS) paperless claims processing systems. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2015). 38 U.S.C.A. § 7107(a)(2) (West 2014). The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND The Board reiterates that the issue of whether the Veteran is entitled to a compensable schedular rating for the service-connected left ear hearing loss disability was undisturbed by the Court's Memorandum Decision, and notes that the Veteran has made no further arguments in that regard. Thus, the Board must only consider whether the Veteran is entitled to consideration for referral for the assignment of an extraschedular rating for his service-connected left ear hearing loss disability. 38 C.F.R. § 3.321; Barringer v. Peake, 22 Vet. App. 242, 243-44 (2008) (noting that the issue of an extraschedular rating is a component of a claim for an increased rating and referral for consideration must be addressed either when raised by the Veteran or reasonably raised by the record). In the aforementioned the December 2015 single judge memorandum decision, the Court found, in pertinent part, that in the January 2015 Board decision, the Board failed to provide adequate reasons and bases to support its decision that referral for extraschedular consideration for left ear hearing loss was not warranted. Specifically, the Court found that the Board did not address the statement in the March 2010 VA examination that the Veteran's left ear hearing loss had a significant effect on his occupational functioning. The Court also found that the Board failed to relate the applicable rating criteria to the Veteran's specific symptoms. In this regard, the Court found that the Board failed to explain how the schedular rating criteria contemplates the Veteran's specific disability picture due to his service-connected left ear hearing loss disability such that referral for an extraschedular rating would not be warranted. The Court stated that the Board must consider the nature and severity of the Veteran's symptoms in determining whether referral for extraschedular consideration is warranted for his left ear hearing loss disability. As to consideration of referral for an extraschedular rating, such consideration requires a three-step inquiry. See Thun v. Peake, 22 Vet. App. 111 (2008), aff'd sub nom. Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). The first question is whether the schedular rating adequately contemplates the Veteran's disability picture. Thun, 22 Vet. App. at 115. 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. If the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, then the second inquiry is whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as governing norms. If the Veteran's disability picture meets the second inquiry, then the third step is to refer the case to the Under Secretary for Benefits or the Director of the Compensation Service to determine whether an extraschedular rating is warranted. There must be sufficient evidence showing that a Veteran's disability picture is not contemplated by the rating schedule in order for the case to be referred for a determination of whether the assignment of an extraschedular rating is warranted. As such, the Board finds that an opinion is necessary to determine whether the Veteran's symptoms due to his service-connected left ear hearing loss disability are not contemplated by the rating criteria, including his complaints of pain and limited motion. See 38 U.S.C.A. § 5103A(d)(1); 38 C.F.R. § 3.159(c)(4) (VA has an affirmative duty to obtain an examination of the claimant at VA health-care facilities if the evidence of record does not contain adequate evidence to decide a claim). See also 38 C.F.R. § 4.2 (if the findings on an examination report do not contain sufficient detail, it is incumbent upon the rating board to return the report as inadequate for evaluation purposes). Additionally, the Board observes that, in Thun, the Federal Circuit expressly stated that "only the Under Secretary [for Benefits] and the Director [of the Compensation and Pension Service] have the authority to award an extraschedular rating." Thun, 572 F.3d at 1370. While the Federal Circuit found that the RO and the Board play some role in evaluating a claim for an extraschedular rating, "[p]ermitting the regional offices and the Board to issue a 'field station submission' in which they recommended extraschedular consideration still reserves to the Under Secretary and the Director the ultimate authority to 'approve' those recommendations based on whether the Veteran should receive an extraschedular rating 'to accord justice.'" Id. In the Veteran's case, because the Board does not possess the authority to award an extraschedular rating in the first instance, the RO should expressly consider referral of this matter to the Under Secretary for Benefits or the Director, VA Compensation and Pension Service for consideration of assignment of an extraschedular rating. 38 C.F.R. § 3.321 (2015). Therefore, the Board finds that the issue of consideration of an extraschedular rating for the Veteran's service-connected left ear hearing loss disability must be remanded to the RO. On remand, the Veteran should be afforded a VA examination that addresses the functional limitations resulting from his left ear hearing loss disability. 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). Expedited handling is requested.) 1. . The Veteran should be afforded a VA audiological examination in order to determine the current severity of his left ear hearing loss disability. The examiner should review the claims file. 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. Any additional evaluations, studies, and tests deemed necessary by the examiner should be conducted. The examiner is specifically requested to describe, in detail, the functional effects caused by the Veteran's left ear hearing loss. This should include a full description of the additional levels of impairment that the Veteran's left ear hearing loss has on his ability to function, especially in settings in which there is background noise and in occupational settings. The VA examiner should attempt to estimate the degree to which the Veteran's puretone and Maryland CNC test results would be further impaired by the presence of background noise and other noises in an occupational setting. This opinion should also address the nature and severity of the Veteran's symptoms due to his service-connected left ear hearing loss disability, to include whether the Veteran has symptoms due to his service-connected left ear hearing loss disability that are not contemplated by the rating criteria. A rationale for all opinions expressed should be provided. 2. After completing all indicated development, the RO should forward the case to the Under Secretary for Benefits or the Director, VA Compensation and Pension Service for consideration of the assignment of extraschedular rating under the provisions of 38 C.F.R. § 3.321. 3. If the benefit sought on appeal remains denied, the Veteran and his representative should be furnished a supplemental statement of the case and afforded a reasonable opportunity of response. The appellant has the right to submit additional evidence and argument on the matter 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 2014). _________________________________________________ DAVID L. WIGHT 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).