Citation Nr: 1630918 Decision Date: 08/03/16 Archive Date: 08/11/16 DOCKET NO. 07-12 240 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New York, New York THE ISSUES 1. Entitlement to an initial compensable rating for bilateral hearing loss. 2. Entitlement to a total disability rating based upon individual unemployability by reason of service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Robert V. Chisholm, Attorney at Law ATTORNEY FOR THE BOARD N. Nelson, Associate Counsel INTRODUCTION The Veteran served on active duty for over 24 years, from July 1980 to December 2004. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2005 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in New York, New York, which granted service connection for 13 disabilities, including hepatitis C and bilateral hearing loss, assigning both disabilities noncompensable (zero percent) disability ratings effective January 1, 2005. This case has a somewhat complex procedural history. In June 2010, the Board remanded the issues of initial ratings for hepatitis C and bilateral hearing loss for further development. In March 2012, the Appeals Management Center (AMC) increased the rating for hepatitis C to 10 percent, effective September 16, 2010. In December 2012, the Board denied entitlement to an initial compensable rating for the bilateral hearing loss, including denying extraschedular consideration, and again remanded the issue of an increased rating for hepatitis C. In July 2013, the AMC increased the rating for hepatitic C to 20 percent, effective January 9, 2013. In November 2013, the Board denied entitlement to increased ratings for hepatitis C for the period of appeal prior to January 9, 2013, and remanded the issue of a rating in excess of 20 percent for hepatitis C from January 9, 2013. The Board also remanded the issue of entitlement to a TDIU, based on a statement in a VA examination that the Veteran's hepatitis C impacted her ability to work. See Rice v. Shinseki, 22 Vet. App. 447 (2009). The Veteran appealed the December 2012 Board decision to the United States Court of Appeals for Veterans Claims (Court). In a March 2014 decision, the Court vacated and remanded the part of the Board's decision that denied extraschedular consideration for bilateral hearing loss. In November 2014, the Board again denied entitlement to an extraschedular rating for bilateral hearing loss, and remanded the issue of an increased rating for hepatitis C for the period of appeal from January 9, 2013. In August 2015, the Board denied entitlement to a rating in excess of 20 percent for hepatitis C for the period of appeal from January 9, 2013. The Veteran appealed the November 2014 Board decision to the Court. In a November 2015 decision, the Court vacated and remanded the part of the Board's decision that denied extraschedular consideration for bilateral hearing loss. Finally, the Veteran appealed the August 2015 Board decision to the Court, and the parties filed a Joint Motion for Partial Remand (JMPR) requesting that the part of the Board decision that declined to adjudicate the issue of entitlement to a TDIU be vacated and remanded. In a February 2016 Order, the Court granted the parties' motion, vacating and remanding the matter to the Board for compliance with instructions in the JMPR. The case has now been returned to the Board for further adjudication. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND Although the Board sincerely regrets the additional delay, another remand is required. Bilateral Hearing Loss As noted above, the Court vacated December 2012 and November 2014 Board decisions that, in relevant part, declined to refer the claim for an initial compensable rating for bilateral hearing loss to the Director of VA's Compensation Service for consideration of extraschedular entitlement. Specifically, in the March 2014 decision, the Court indicated that the Board failed to address an April 2009 VA examination report that noted that the Veteran's hearing loss had a significant impact on her occupation, her complaints about the hearing aids, and her general difficulty hearing the television or people speaking at certain pitches. In the November 2015 decision, the Court found that the Board misconstrued the Veteran's April 2012 statement about her hearing aid effectiveness as having the opposite meaning. The Veteran indicated that her issue with hearing voice intonations in conversation was not relieved by wireless hearing devices, but the Board read her statement to the contrary. The Court also noted that the collective impact of the Veteran's multiple service-connected disabilities must be considered. TDIU A TDIU award of benefits may be granted where the schedular rating is less than total, but when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a) (2015). Here, the Veteran's service-connected disabilities include residuals of a splenectomy (rated as 20 percent disabling), hepatitis C (20 percent), residuals of a left knee meniscectomy with degenerative joint disease (10 percent), thoracolumbar degenerative joint and disc disease including spondylolisthesis (10 percent), tinnitus (10 percent), ulcerative colitis (10 percent), stress urinary incontinence (10 percent), right knee patellofemoral pain syndrome with degenerative joint disease (10 percent), arthralgia and sprain of the left shoulder (noncompensable), residuals of a right elbow strain (noncompensable), bilateral hearing loss (noncompensable), allergic rhinitis (noncompensable), hemorrhoids (noncompensable), and fibroids of the breasts (noncompensable). Her combined evaluation for compensation is 70 percent, effective January 9, 2013. As such, because no disability is rated as at least 40 percent disabling, the combined rating percentage criteria for TDIU consideration under 38 C.F.R. § 4.16(a) are not met. Although the Veteran does not meet the rating requirements for consideration of a TDIU on a schedular basis under 38 C.F.R. § 4.16(a), a TDIU may be granted alternatively on an extra-schedular basis under § 4.16(b) if it is established that the Veteran is indeed unemployable on account of her service-connected disabilities. The Board is precluded from granting a TDIU on an extra-schedular basis in the first instance, and must refer the matter to the Director of Compensation Service for the initial adjudication. See 38 C.F.R. § 4.16(b) (2014); Barringer v. Peake, 22 Vet. App. 242 (2008). If, and only if, the Director of the Compensation Service or designee determines that an extra-schedular TDIU is not warranted does the Board then have jurisdiction to decide the extra-schedular claim on its merits. In this case, the evidence shows that in a July 2013 VA examination for hepatitis C, the examiner determined that the Veteran's ability to work was impacted by "[c]hronic fatigue, she can't be active. She can't get anything done." The Veteran also asserted in a March 2016 statement that she retired from service due to her disabilities and that she has been unable to maintain substantially gainful employment since that time. Thus, because there is evidence that the Veteran maybe unemployable due to service-connected disabilities, the issue of entitlement to a TDIU is being referred to the Director of the Compensation Service for the initial adjudication. Accordingly, the case is REMANDED for the following action: 1. Refer the claim to the Director of VA's Compensation Service for consideration of an extraschedular rating. The Director should determine if the Veteran's service-connected bilateral hearing loss, rated initially as noncompensable, warrants the assignment of an extraschedular rating at any point during the period of appeal. 2. After referral to the Director and his/her response, refer the issue of entitlement to TDIU to the Director of Compensation Service for consideration of assignment of an extraschedular rating for TDIU, pursuant to 38 C.F.R. § 4.16(b). Prior to submission of the claim to the Director of Compensation Service, prepare a full statement as to the Veteran's service-connected disabilities, employment history, educational and vocational attainment, and all other factors having a bearing on the issue of entitlement to TDIU, including the May 2016 vocational assessment by a private vocational consultant, E.C. Submit that statement, along with the Veteran's claims file to the Director of VA's Compensation Service. 3. Re-adjudicate the issues, and if any issues remains denied, then a fully responsive Supplemental Statement of the Case should be furnished to the Veteran and her representative and they should be afforded a reasonable opportunity for response. Thereafter, return the appeal to the Board for appellate review. 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 2014). _________________________________________________ H. SEESEL 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).