Citation Nr: 18152697 Decision Date: 11/27/18 Archive Date: 11/23/18 DOCKET NO. 11-05 407 DATE: November 27, 2018 REMANDED Entitlement to a compensable initial rating in excess 10 percent for hearing loss prior to June 22, 2011, to include on an extraschedular basis, is remanded. Entitlement to a compensable initial rating for service-connected hearing loss disability as of June 22, 2011, to include on an extraschedular basis, is remanded. REASONS FOR REMAND The Veteran served on active duty in the U.S. marine Corps from July 1959 to January 1969, including service in Vietnam. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a September 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, which denied claim for increased rating for the service-connected bilateral hearing loss and continued the assigned evaluation rating. The Veteran subsequently perfected his appeal. In a September 2016 decision, the Board increased the schedular evaluation for the service-connected hearing loss to 10 percent disabling, but no higher, prior to June 22, 2011 and denied compensable schedular evaluation since that date. The Board also denied referral to the Director of the Compensation Service (Director) for consideration of an extraschedular rating. Subsequently, the Veteran appealed the September 2016 Board decision to the United States Court of Appeals for Veterans Claims (Court). In April 2018, the Court vacated the Board’s September 2016 decision and remanded the case for re-adjudication. The case is once again before the Board. Entitlement to a compensable initial rating in excess 10 percent for hearing loss, prior to June 22, 2011 and as of June 22, 2011, is remanded. The Board finds that a remand is necessary to determine whether an extraschedular rating is warranted for the service-connected bilateral hearing loss disability. The Board may not assign an extraschedular rating in the first instance, but must specifically adjudicate whether to refer a claim for extraschedular evaluation when the issue is either raised by the claimant or reasonably raised by the evidence of record. Barringer v. Peake, 22 Vet. App. 242 (2008). If so, the claim should be referred to the Director of the VA Compensation Service for such determination. See Thun v. Peake, 22 Vet. App. 111 (2008). In determining whether a case should be referred for extraschedular consideration, the Board must compare the level of severity and the symptomatology of the claimant’s disability with the established criteria provided in the rating schedule for disability. Id. The evidence of record presents the possibility that the Veteran’s functional impairment resulting from his bilateral hearing loss exceeds the ability of the designated diagnostic codes’ capacity to accurately reflect the Veteran’s functional impairment. The record contains instances of possible occupational functional impairment including: (1) an incident when Veteran was almost run over by an industrial piece of equipment that was backing up at work because he could not hear the OSHA approved sounding devices (beeps or alerts) (See VA Examination April 2013; Buddy Statement, September 2008); (2) he reported difficulty hearing co-workers, particularly during meetings (Id.); (3) he reported experiencing difficulties hearing instructions at job sites (see VA Audiology consult, October 2010); (4) he reported his teaching job became increasingly difficult because he could not hear students; (5) he submitted testimony of colleagues depicting the impact of his hearing loss on work safety and communication deficiencies interfered with his daily activities, especially when there was a lot of background noise or several conversations occurring at once (see Buddy Statement(s) M. Wicker, Whitehead, October 2008); and (6) the Veteran reported that in September 2011 he resigned his employment at Marion County Public Works Bureau because he could no longer function safely and administratively. The record also contains evidence of social problems due to difficulties in communication: (1) in August 2008 the Veteran filed a Statement in Support of [his] Claim averring that his service-connected hearing loss worsened and reporting that the disability was affecting both this work and social life; (2) he reported difficulty hearing his wife, the television, in group situations, or in the presence of background noise (Id.; VA Audiology consult, October 2010); (3) in June 2011 the Veteran reported difficulty understanding women’s voices (see also, VA Examination, July 2012); and (4) reported difficulty hearing smoke alarms in his house (see CAVC Appeal Brief, May 2017). In 2001 the Veteran was found to have high-frequency hearing loss, the audiologist noted that prognosis for hearing aid use was therefore poor. (See CAPRI records, December 2001; VA Treatment records, July 2012). As such, the Board finds that this type of hearing loss should be considered in light of the functional impairment claims, discussed above, resulting from the Veteran’s hearing loss disability, Additionally, considering the Veteran’s Informal Hearing Presentation (IHP) argument that his hearing loss causes safety hazards and social difficulties which are not contemplated by the rating criteria and results in functional impairment that goes beyond merely difficulty hearing and understanding speech and argument that his audiological exams results do not adequately portray the severity of his condition due to having been conducted in the sterile quiet of an audiology booth and does not reflect the severity of this condition in the aspect of normal, daily life. (See Informal Hearing Presentation, August 2016). Accordingly, the matter of an extraschedular evaluation under 38 C.F.R. § 3.321 is remanded for further development and adjudication. See Thun, supra. The matters are REMANDED for the following action: 1. Refer the appeal to the Director of Compensation Service pursuant to the provisions of 38 C.F.R. § 3.321(b)(1) for consideration of (1) whether an initial rating in excess of 10 percent for hearing loss prior to June 22, 2011, and (2) whether a compensable rating for service-connected hearing loss as of June 22, 2011 are warranted on an extraschedular basis. 2. After completion of the above, readjudicate the claim. If the benefit sought on appeal is not fully granted, issue a Supplemental Statement of the Case (SSOC) before returning the case to the Board, if otherwise in order. K. J. ALIBRANDO Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD E. Steele, Associate Counsel