Citation Nr: 1804652 Decision Date: 01/24/18 Archive Date: 02/05/18 DOCKET NO. 13-29 992 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Seattle, Washington THE ISSUES 1. Entitlement to a rating in excess of 50 percent for posttraumatic stress disorder (PTSD) prior to February 21, 2013. 2. Entitlement to an effective date prior to February 21, 2013, for service connection for alcohol abuse. 3. Entitlement to an extraschedular rating for service-connected bilateral hearing loss prior to December 15, 2012. 4. Entitlement to an extraschedular rating based on the combined effects of service connected disabilities prior to December 15, 2012. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD T.S.E., Counsel INTRODUCTION The Veteran had active duty service from January 1967 to February 1970. This case comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions by the Department of Veterans Affairs (VA) Regional Offices (ROs). In January 2012, the RO in Boise, Idaho, denied claims for increased ratings for service-connected PTSD, evaluated as 50 percent disabling, and for service-connected bilateral hearing loss, history of perforated right tympanic membrane, history of cholesteatoma, history of right serous otitis media, status post multiple surgical procedures (hereinafter "bilateral hearing loss"), evaluated as 20 percent disabling. The Veteran appealed the increased rating issues. Jurisdiction over his claims file was subsequently transferred to the RO in Seattle, Washington. In March 2013, the Seattle RO granted the increased rating claim for PTSD, to the extent that it assigned a 70 percent rating, with an effective date of February 21, 2013. The RO's decision also granted service connection for alcohol abuse as secondary to PTSD, with an effective date of February 21, 2013, and combined the ratings for these two disabilities. Since this increase did not constitute a full grant of the benefit sought, the increased rating issue remains in appellate status. AB v. Brown, 6 Vet. App. 35, 39 (1993). In May 2016, the Veteran was afforded a hearing at the RO before Matthew W. Blackwelder, who is the Veterans Law Judge rendering the determination in this claim and was designated by the Chairman of the Board to conduct that hearing, pursuant to 38 U.S.C. § 7102(b) (2012). In June 2016, the Seattle RO granted the increased rating claim for bilateral hearing loss, to the extent that it assigned a 70 percent rating, with an effective date of June 3, 2016. Id. In November 2016, the Board determined that the criteria for a disability rating in excess of 50 percent for PTSD were not met prior to February 20, 2013, and denied the increased rating claim for bilateral hearing loss. The appellant appealed to the U.S. Court of Appeals for Veterans Claims (Court). In September 2017, while his case was pending at the Court, the VA's Office of General Counsel and the appellant's representative filed a Joint Motion requesting that the Court vacate the Board's November 2016 decision with regard to the issues of entitlement to a rating in excess of 50 percent prior to February 20, 2013 for PTSD, and entitlement to an extraschedular rating for service-connected bilateral hearing loss. That same month, the Court issued an Order vacating the November 2016 Board decision as to those issues; the Joint Motion and the Court's Order did not disturb the Board's denial of a rating in excess of 70 percent for PTSD as of February 21, 2013, or its denial of an increased rating for bilateral hearing loss on a scheduler basis. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND A review of the Joint Motion shows that it was agreed that the Board had failed in its duty to assist by not making reasonable efforts to obtain the Veteran's records from the Portland Vet Center. Citing 38 U.S.C. § 5103. In this regard, the Veteran's Vet Center records, dated between 2010 and 2011, were of record at the time of the Board's November 2016 decision. However, there were indications that the Veteran's treatment with the Vet Center spanned the period from 2010 to 2013. The Joint Motion directed that, on remand, an attempt should be made to obtain all of the Veteran's treatment from the Vet Center between 2011 and 2013. In early December 2017, the Veteran submitted 130 pages of records from the Vet Center covering the time period in question, and fulfilling this development requirement. However, the Veteran declined to waive Agency of Original Jurisdiction (AOJ) consideration of this evidence, and specifically asked that his case be remanded for the AOJ to consider the evidence. This should be done. The Joint Motion shows that it was agreed that the Board failed to address whether the record reasonably raised the issue of alcohol abuse secondary to PTSD prior to February 20, 2013. In this regard, in its increase of the Veteran's PTSD rating to 70 percent in March 2013, the RO granted service connection for alcohol abuse as secondary to service-connected PTSD, with an effective date of February 21, 2013. On remand, this issue should be adjudicated. The Joint Motion noted that the Veteran has asserted that he has "social isolation, work impairment, and dizziness" that are related to his service-connected hearing loss, and that he must speak loudly at work as a result of his hearing loss. It was agreed that, with regard to the claim for an increased rating for bilateral hearing loss, the Board failed to "provide an adequate statement of reasons and bases for its finding that the issue of an extraschedular referral was not specifically sought by Appellant or reasonably raised by the record." The Board cannot assign an extra-schedular rating in the first instance; it must first specifically determine whether to refer a case to the Director of C&P Service for an extra-schedular evaluation when the issue is either raised by the claimant or is reasonably raised by the evidence of record. Thun v. Peake, 22 Vet. App. 111, 115 (2008); Barringer v. Peake, 22 Vet. App. 242 (2008). On remand, the issue of entitlement to an extraschedular rating for service-connected bilateral hearing loss should be referred to the Director, Compensation and Pension, for an opinion, followed by adjudication of this issue. The Joint Motion shows that it was agreed that the Board "failed to address whether the evidence reasonably raised the issue of whether the combined effects of Appellant's service-connected bilateral hearing loss and PTSD demonstrate an exceptional disability picture for purposes of an extraschedular referral, citing Yancy v. McDonald, 27 Vet. App. 484, 495-96 (2016); Johnson v. McDonald, 762 F.3d 1362 (Fed. Cir. 2014). In Johnson v. McDonald, the CAVC explained that the plain language of § 3.321(b)(1) using the plural forms of the "schedular evaluations" and "disabilities" is unambiguous and requires that VA consider the need for extra-schedular review by evaluating the collective impact of two or more service-connected disabilities, in addition to evaluating the effect of a single service-connected disability. 762 F.3d 1362, 1365-66 (Fed. Cir. 2014). However, since the issuance of that decision, VA undertook rulemaking procedures to clarify VA's policy on extraschedular consideration. In the proposed rule, VA noted that, "[t]he history of 38 CFR 3.321(b)(1) reveals that the Federal Circuit's interpretation does not accurately reflect VA's intent in issuing the regulation." As such, VA amended 3.321(b)(1) to explain that that section would apply only to a single disability rather than upon consideration of multiple service connected disabilities as the Federal Circuit held in Johnson. The final rule is currently effective and applies to this case. As such, the combined effects portion of the JMR has been rendered moot by act of law. Accordingly, the case is REMANDED for the following action: 1. Refer the Veteran's case to the Director, Compensation Service, for the consideration of an extraschedular rating for bilateral hearing loss. 2. Then readjudicate the appeal, including the issues of: a) entitlement to a rating in excess of 50 percent for posttraumatic stress disorder (PTSD) prior to February 21, 2013; b) entitlement to en effective date prior to February 20, 2013 for service connection for alcohol abuse as secondary to service-connected PTSD; c) entitlement to an increased rating on an extraschedular basis for bilateral hearing loss. In so doing, specific consideration should be given to the Vet Center records that were provided in December 2017. If any of the claims remain denied, provide the Veteran and his representative with a supplemental statement of the case and allow an appropriate time for response. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims 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. §§ 5109B, 7112 (2012). _________________________________________________ MATTHEW W. BLACKWELDER Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (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).