Citation Nr: 18152573
Decision Date: 11/23/18	Archive Date: 11/23/18

DOCKET NO. 09-11 604
DATE:	November 23, 2018
REMANDED
The claim for an extraschedular rating for bilateral hearing loss is remanded.
REASONS FOR REMAND
Briefly summarizing the pertinent procedural history, following May 2011 and July 2012 Board of Veterans’ Appeals (Board) remands of a claim for a compensable initial rating for bilateral hearing loss, an October 2014 Board decision denied a compensable rating for bilateral hearing loss, to include on an extraschedular basis.  Of record at the time of this decision was an August 2011 determination by the Director of the VA Compensation and Pension Service (Director) that found that an extraschedular rating for the service connected bilateral hearing loss was not warranted.  The Veteran appealed the portion of the October 2014 Board decision that denied referral for consideration of an extraschedular rating for hearing loss to the U.S. Court of Appeals for Veterans Claims (Court).  In June 2015, the Court granted a Joint Motion for Partial Remand (JMPR) that vacated and remanded that portion of the Board’s October 2014 decision that denied referral to the Director for an extraschedular rating for bilateral hearing loss.  Thereafter, an August 2015 Board decision again denied the claim for an extraschedular rating for bilateral hearing loss, referencing and concurring with the August 2011 Director’s determination therein.  
The Veteran also appealed the August 2015 Board decision to the Court, who in a March 2016 (JMPR) vacated and remanded the Board’s August 2015 denial of the claim for an extraschedular rating for bilateral hearing loss.  Following an August 2016 Board remand, the Board again denied the claim for an extraschedular rating for bilateral hearing loss in a June 2017 decision.  The Veteran appealed this decision to the Court, who granted a third JMPR with respect to the Veteran’s claim for an extraschedular rating for bilateral hearing loss in July 2018.  
Given the continuing litigation involved with the claim for entitlement to an extraschedular rating for bilateral hearing loss, and as the August 2011 determination by the Director does not document specific consideration of the matters discussed in the July 2018 JMPR, the Agency of Original Jurisdiction (AOJ) will be requested to refer the matter of entitlement to an extraschedular rating for bilateral hearing loss to the Director for specific consideration of the matters referenced in the July 2018 JMPR, which will be delineated in the instructions to the Director listed below.   
[The Board notes that two additional issues that were remanded by the Board to the AOJ; namely, entitlement to an initial compensable disability rating for foreign bodies of the neck due to a shell fragment wound and an initial compensable disability rating for residual scarring associated with foreign bodies of the neck due to a shell fragment wound are still undergoing development at the AOJ, and are not ripe for appellate consideration by the Board at this time.]  
For the reasons stated above, the claim for an extraschedular rating for bilateral hearing loss is REMANDED to the AOJ for the following action:
Submit the matter of entitlement to an extraschedular rating for bilateral hearing to the Director for consideration under 38 C.F.R. § 3.321(b)(1) (2018).  In making this determination—and as set forth in the July 2018 JMPR—the Director should document consideration of the social difficulties the Veteran has experienced due to his hearing loss, to include deterioration of his marriage.  In this regard, the Veteran testified at a March 2011 hearing before the undersigned that his hearing loss has resulted in marital strife that escalates into heated arguments on occasion.  The Director should also determine whether “the social effects described by [the Veteran] are sufficiently akin to social isolation as to represent a manifestation of hearing loss outside the schedular criteria.”  See July 2018 JMPR, Page 3.  To the extent favorable to the Veteran, the determination of the Director should be implemented. 
 
MARJORIE A. AUER
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	J. Andrew Ahlberg, Counsel