Citation Nr: 18151369 Decision Date: 11/20/18 Archive Date: 11/16/18 DOCKET NO. 14-20 852 DATE: November 20, 2018 REMANDED Entitlement to a compensable rating for bilateral hearing loss is remanded. Entitlement to an increased rating in excess of 10 percent for tinnitus is remanded. REASONS FOR REMAND The Veteran served on active duty in the U.S. Army from November 1961 to November 1963. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a March 2013 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Seattle, Washington. In July 2016, the Board remanded the case for additional development, which was completed. The matters returned to the Board for appellate adjudication. In September 2017, the Board issued a decision that denied entitlement to an increased rating in excess 10 percent for tinnitus and to a compensable rating for bilateral hearing loss. The Veteran appealed to the United States Court of Appeals for Veterans Claims (Court). In July 2018, the Court granted a Joint Motion for Remand (Joint Motion), vacated the September 2017 decision, and remanded the case to the Board. 1. Entitlement to a compensable rating for bilateral hearing loss. is remanded. 2. Entitlement to an increased rating in excess of 10 percent for tinnitus is remanded. In June 2018, the parties to the Joint Motion agreed that the Board failed to address whether extraschedular consideration for the Veteran’s bilateral hearing loss and tinnitus is warranted and did not adequately consider the Veteran’s symptoms of “busted and damages ear drums, pain, hypersensitivity to sound, interference with speech, and neurological effect to his eye sight.” The Board generally must consider referral for extraschedular consideration ‘[w]here there is evidence in the record that shows exceptional or unusual circumstances or where the veteran has asserted that a schedular rating is inadequate.’” See Doucette v. Shulkin, 28 Vet. App. 366, 369 (2017). The Court in Doucette also recognized that there were other functional effects the rating criteria for hearing impairment did not discuss or account for, such as dizziness, vertigo, ear pain, recurrent loss of balance, social isolation; etc. Doucette, 28 Vet. App. at 369. However, referral is not warranted in this case as these symptoms are not related to the Veteran’s service-connected hearing loss and/or tinnitus. Concerning this, in its July 2016 remand, the Board sought a medical opinion as to whether the Veteran’s claimed symptoms of pain, hypersensitivity to sound, interference with speech, and neurological effect to his eyesight, are related to his bilateral hearing loss or tinnitus. In addressing the question, an October 2016 VA fee-based audiologist stated the presence of a middle ear dysfunction would be consistent with the Veteran’s reported history of a rupture eardrum and that there is no correlation in medical literature regarding decreased hearing and effect on eyesight. Furthermore, the Veteran does not appear to contend that the claimed symptoms, which appear to be related to middle ear dysfunction, are symptoms of his service-connected hearing loss or tinnitus. Rather, in his May 2014 Substantive Appeal, the Veteran claimed that the in-service incident which caused busted and damaged ear drums also caused hearing loss. Specifically, he stated in July 2014, “[d]amage to the ears has caused a number of symptoms, of which the constant, ever-present tinnitus is one and, of course, the irremediable hearing loss is another. Others have been such things as increased sensitivities to sound, neurological damage possibly affecting eyesight, interference with speech, etcetera.” The Board therefore identified that the Veteran raised a separate claim of service connection for damaged ear condition and referred to the issue to the Agency of Original Jurisdiction (AOJ) for appropriate action in its July 2016 remand and again in its September 2017 decision. See 38 C.F.R. § 19.9(b) (2017). The AOJ has not yet taken any action with regard to this issue and should do so expeditiously. Additionally, the parties to the Joint Motion agreed that the Board should consider the significance, if any, of the October 2016 VA examiner’s observation that she was unable to interpret the Veteran’s ipsilateral and contralateral acoustic reflexes due to artifact, and whether a new examination or opinion is warranted to determine if that inability to interpret the reflexes was an irremediable situation, or if such findings could be obtained depending on the condition of the Veteran’s ears. When the medical evidence is inadequate, VA must supplement the record by seeking an advisory opinion or ordering another medical examination. See Littke v. Derwinski, 1 Vet. App. 90, 93 (1990); Colvin v. Derwinski, 1 Vet. App. 171 (1991); see also Hatlestad v. Derwinski, 3 Vet. App. 213 (1992). Therefore, a remand is required to obtain a supplemental medical opinion in this matter. The matters are REMANDED for the following action: 1. Obtain any updated VA treatment records from the VA Medical Center (VAMC) in Tacoma, Washington and any associated outpatient clinics dated from July 2016 to the present. 2. Obtain a VA medical opinion from an audiologist as to (a) the significance of the September 2016 VA examiner’s inability to interpret the Veteran’s ipsilateral and contralateral acoustic reflexes due to artifact, and (b) whether that inability to interpret the reflexes was an irremediable situation, or if such findings could be obtained depending on the condition of the Veteran’s ears. If the examiner finds that the findings as to the Veteran’s ipsilateral and contralateral acoustic reflexes are significant to determine the currently severity of his bilateral hearing loss and tinnitus, and if such findings can be obtained through a new examination, a new VA audiological examination must be scheduled. The claims file must be made available to and reviewed by the examiner in conjunction with the examination. All necessary tests, including audiometric evaluation, should be conducted and the results reported in detail. All opinions must be accompanied by a clear rationale. 3. After completing the above development, and any other development deemed necessary, including adjudication of the issue of entitlement to service connection for entitlement to service connection for damaged ear condition, with ruptured ear drums, pain, hypersensitivity to sound, interference with speech, and possible neurological damage affecting eyesight, readjudicate the claims on appeal, taking into consideration any newly acquired evidence. If any benefit sought on appeal remains denied, provide an additional Supplemental Statement of the Case to the Veteran, and return the appeal to the Board for appellate review, after the Veteran and his representative have had an adequate opportunity to respond ANTHONY C. SCIRÉ, JR Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. J. In, Counsel