Citation Nr: 1800801 Decision Date: 01/05/18 Archive Date: 01/19/18 DOCKET NO. 09-37 434 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boise, Idaho THE ISSUES 1. Entitlement to an increased extraschedular rating for bilateral hearing loss. 2. Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU). 3. Entitlement to service connection for surgical scar as secondary to the service-connected lumbar disk disease, status post laminectomy and diskectomy. 4. Entitlement to special monthly compensation based on being housebound. 5. Whether the reduction of the disability rating for bilateral hearing loss from 40 percent to 10 percent effective October 1, 2016, was proper. REPRESENTATION Appellant represented by: Robert V. Chisholm, Attorney WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD C. Bosely, Counsel INTRODUCTION The Veteran served on active duty from June 1960 to June 1980. This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from a May 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In June 2010, the Veteran presented testimony at a personal hearing conducted at the Boise RO before the undersigned who was designated by the Chairman to conduct the hearing pursuant to 38 U.S.C. § 7107 (c) (2012) and who is rendering the determination in this case. A transcript of this personal hearing is in the Veteran's claims folder. The Board remanded the increased rating claim for bilateral hearing loss for additional development in September 2012. The Board then issued a decision in August 2015 denying an increased rating for bilateral hearing loss. The Veteran appealed the Board's decision to the Court of Appeals for Veterans Claims (Court or CAVC), which issued a memorandum decision in March 2017 vacating that part of the Board's decision that declined to refer the Veteran's bilateral hearing loss claim for extraschedular consideration. (In footnote 1, the Court noted that the Veteran abandoned that part of the Board's decision as it pertained to a higher schedular rating for hearing loss.) That matter is currently before the Board pursuant to the Court's decision. By a July 2016 rating decision, the RO reduced the schedular 40 percent evaluation for hearing loss to 10 percent effective October 1, 2016. The Veteran's attorney filed a notice of disagreement (NOD) in April 2017. The attorney stated that "[t]he Veteran is continuing to seek entitlement to an increased rating for his service-connected bilateral hearing loss. The July 2016 rating decision did not decide an increased rating issue. Accordingly, the Board finds that this NOD initiated an appeal of the reduction issue, but not an increased (schedular) rating issue. See Dofflemyer v. Derwinski, 2 Vet. App. 277, 279-80 (1992); see also Schafrath v. Derwinski, 1 Vet. App. 589, 596 (1991) ("this is a reduction case, not an increase case"); Green v. Nicholson, No. 03-1935, 2006 U.S. App. Vet. Claims LEXIS 1345, at *7-8 (Vet. App. Nov. 17, 2006) (nonprecedential). Thus, the July 2016 rating decision, where it reduced the disability evaluation of bilateral hearing loss, is currently on appeal before the Board pursuant to 38 C.F.R. § 19.9(c) for the limited purpose of remanding for a statement of the case (SOC). A January 2017 rating decision denied service connection for a surgical scar as secondary to the service-connected lumbar disk disease, status post laminectomy and diskectomy and special monthly compensation based on housebound. In July 2017, the Veteran filed an NOD with these determinations. Accordingly, the January 2017 rating decision is also on appeal before the Board pursuant to 38 C.F.R. § 19.9(c) for the limited purpose of remanding for an SOC. The Veteran's July 2017 NOD also disagreed with a proposed reduction in the disability evaluation of a service-connected lumbar spine disability. A rating decision has not been issued, however, reducing the disability rating of the service-connected lumbar spine disability. Accordingly, that issue is not currently on appeal before the Board. See 38 C.F.R. § 3.105(e). The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran when further action is required. REMAND The Board has conducted a preliminary review of these matters, but has found that further action is needed before a final decision may be reached. 1. Issue an SSOC The claims for (1) an increased extraschedular rating for bilateral hearing loss and (2) a TDIU are remanded for issuance of a supplemental statement of the case (SSOC). The Board previously decided the bilateral hearing loss claim in August 2015. The matter has since returned from the Court, wherein the Court held that the Board failed to address potentially favorable evidence of otalgia indicated in the March 2009 audiology progress note. Additionally, during the intervening time, additional VA medical records were associated with the claims file. Those medical records have not been considered by the RO. A waiver of RO jurisdiction was previously submitted by the Veteran in February 2013. However, that waiver applied to evidence submitted by him. The new VA medical records were added to the claims file by the RO. Thus, the waiver does not cover these records. In November 2017, the Board sent him a letter asking if he would like to waive RO jurisdiction of the new VA medical records. The Board's letter informed him that he had 45 days to respond, and if he did not respond within 45 days, the Board would assume that he wanted the Board to remand the appeal for RO review. No response was received from the Veteran. Accordingly, that issue, plus the intertwined claim for a TDIU, is remanded for review by the RO with issuance of an SSOC. 2. Issue an SOC The claims of (1) service connection for surgical scar, (2) special monthly compensation based on housebound, and (3) reduction of the disability rating for bilateral hearing loss must be remanded for issuance of an SOC. The claims were denied in July 2016 and January 2017 rating decisions. The Veteran filed VA Forms 21-0958, Notice of Disagreement (NOD), in April 2017 and July 2017, respectively. At present, an SOC has not been issued. Under such circumstances, the Board shall remand these claims to the AOJ with instructions to prepare and issue an SOC. See 38 C.F.R. § 19.9(c); Manlincon v. West, 12 Vet. App. 238, 240-41 (1999); see also 38 C.F.R. § 20.201 (in effect since March 24, 2015). Accordingly, the case is REMANDED for the following action: 1. After completing any preliminary action needed, readjudicate the claims for (1) an increased extraschedular rating for bilateral hearing loss and (2) a TDIU with consideration of all pertinent evidence and legal authority and addressing all relevant theories of entitlement. If any benefit sought on appeal remains denied, the RO should furnish to the Veteran and his representative an appropriate supplemental statement of the case (SSOC) that includes clear reasons and bases for all determinations. The Veteran and his representative should be afforded the appropriate time period to respond. 2. Issue the Veteran an SOC with respect to the claims of (1) service connection for surgical scar, (2) special monthly compensation based on housebound, and (3) reduction of the disability rating for bilateral hearing loss. This issuance should include notification of the need to timely file a substantive appeal to perfect an appeal on the issues. Thereafter, if indicated, the case should be returned to the Board for the purpose of appellate disposition. 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 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). _________________________________________________ C. CRAWFORD 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) (2017).