Citation Nr: 18142325 Decision Date: 10/15/18 Archive Date: 10/15/18 DOCKET NO. 10-43 419 DATE: October 15, 2018 ORDER The Board’s May 7, 2018, decision is vacated. REMANDED Entitlement to a higher initial rating for service-connected hearing loss on an extraschedular basis is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) prior to March 22, 2018, is remanded. FINDINGS OF FACT 1. In a May 7, 2018, action by the Board of Veterans’ Appeals (Board), the Board remanded the issue of entitlement to a higher initial rating for service-connected hearing loss on an extraschedular basis; entitlement to TDIU was not addressed by the Board. 2. In correspondence received in June 2018, the Veteran’s attorney requested a “supplemental Board decision,” arguing that the Board had erred in its May 2018 decision by failing to consider and adjudicate the issue of entitlement to TDIU. CONCLUSION OF LAW The criteria for vacating the May 7, 2018, Board decision are met. 38 U.S.C. § 7104(a) (2012); 38 C.F.R. § 20.904 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION On May 7, 2018, the Board issued a decision that remanded the issue of entitlement to a higher initial rating for service-connected hearing loss on an extraschedular basis. The Board did not raise or address the issue of entitlement to TDIU. In correspondence received in June 2018 from the Veteran’s attorney, entitled “Request for Supplemental Board decision,” the Veteran’s attorney, citing to Rice v. Shinseki, 22 Vet. App. 446 (2009), argued that entitlement to TDIU was before the Board as part of the Veteran’s claim for a higher initial rating for hearing loss, noting that the Veteran had submitted a VA Form 21-8940 in December 2017 wherein he reported that he had not worked in a full-time capacity since 2008, when he retired for to his bilateral hearing loss and tinnitus. The Board notes in a September 2018 letter, the Board informed the Veteran that it had construed the June 2018 correspondence as a motion for reconsideration of the Board’s May 7, 2018, decision. Upon further review and in consideration of the action since undertaken by the agency of original jurisdiction (AOJ), the Board finds that vacatur, as opposed to reconsideration, of the May 7, 2018, Board decision is the appropriate course of action at this juncture. See 38 U.S.C. § 7104(a); 38 C.F.R. § 20.904. Specifically, as argued by the Veteran’s attorney, the Board concludes that the issue of entitlement to TDIU was raised during the pendency of the Veteran’s appeal of the rating assigned in connection with his award of service connection for bilateral hearing loss. At a minimum, entitlement to such thus should have been addressed in the Board’s May 2018 action. In this regard, the Board points out that since the May 2018 remand, the Veteran has been granted entitlement to TDIU, effective March 22, 2018. See August 2018 rating decision. However, because the issue of entitlement to a TDIU should previously have been considered by the Board as part of the Veteran’s claim for a higher initial rating, it remains part of the current appeal. See Rice, 22 Vet. App. at 453 (holding that a request for TDIU is not a separate claim for benefits, but rather involves an attempt to obtain an appropriate rating for a disability or disabilities, either as part of the initial adjudication of a claim or as part of a claim for increased compensation). Accordingly, at this juncture, Board concludes that the question for consideration is whether TDIU is warranted prior to March 22, 2018. In view of the foregoing, the Board finds that the May 7, 2018, Board decision should be vacated. See 38 U.S.C. § 7104(a); 38 C.F.R. § 20.904. Vacatur is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of the appeal. 38 C.F.R. § 20.1100(b). Accordingly, a new action will be entered on these two claims below as if the November 2013 decision by the Board had never been issued. REASONS FOR REMAND Pursuant to 38 C.F.R. § 3.321(b)(1), the Under Secretary for Benefits or the Director, Compensation Service, is authorized to approve an extraschedular evaluation if the case “presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards.” 38 C.F.R. § 3.321(b)(1). Although the Board may not assign an extraschedular rating in the first instance, it must specifically adjudicate whether to refer a case for extraschedular evaluation when the issue is either raised by the claimant or is reasonably raised by the evidence of record. Barringer v. Peake, 22 Vet. App. 242 (2008). If the evidence raises the question of entitlement to an extraschedular rating, the threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Therefore, initially, there must be a comparison between the level of severity and symptomatology of the claimant’s service-connected disability with the established criteria found in the rating schedule for that disability. Thun v. Peake, 22 Vet. App. 111 (2008). Under the approach prescribed by VA, 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. In the second step of the inquiry, however, if the schedular evaluation does not contemplate the claimant’s level of disability and symptomatology and is found inadequate, the Regional Office (RO) or Board must determine whether the claimant’s exceptional disability picture exhibits other related factors such as those provided by the regulation as “governing norms.” 38 C.F.R. 3.321(b)(1) (related factors include “marked interference with employment” and “frequent periods of hospitalization”). In this case there is evidence that the rating schedule is inadequate to evaluate the Veteran’s hearing loss disability. The Veteran and his wife have described significant side effects caused by his hearing loss involving the Veteran’s personal and social life, including strains on his relationships with family and past coworkers, loneliness, anxiety, and humiliation. He also reported significant impact on his past employment, including on his ability to communicate and coworkers and complete his tasks safely, so significant that he ultimately retired. Given the Veteran’s description of symptoms not addressed by the rating code and his reports of marked interference with employment, the Board finds that the criteria for referral for consideration of an extraschedular rating are met. Also, as addressed above, the Board has determined that the issue of entitlement to TDIU was raised during the pendency of the Veteran’s claim for a higher initial rating for hearing loss. Here, TDIU has been awarded, via an August 2018 rating decision. In that decision, the RO assigned an effective date of March 22, 2018, which it state was date the Veteran’s initial claim for TDIU had been received; however, there remains a question as to whether TDIU is warranted prior to date. The Board finds that that issue should be addressed in the first instance after a decision on entitlement to an extraschedular evaluation has been made. The matters are REMANDED for the following action: 1. The claim of entitlement to a higher initial rating for service-connected hearing loss on an extraschedular basis should be referred to VA’s Director, Compensation Service or Under Secretary for Benefits to adjudicate entitlement to an extraschedular rating for bilateral hearing loss. 2. After completion of all requested and necessary development, the AOJ should review the record in light of the new evidence obtained, to include all arguments advanced by the Veteran’s attorney concerning entitlement to TDIU. The AOJ should then adjudicate the claims on appeal, to specifically include whether TDIU is warranted prior to March 22, 2018, as part of the Veteran’s claim for a higher initial rating for hearing loss, considering all pertinent evidence (to include all evidence added to the electronic claims file since the last adjudication) and legal authority. JAMES L. MARCH Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD K. Neilson, Counsel