Citation Nr: 18154834 Decision Date: 11/30/18 Archive Date: 11/30/18 DOCKET NO. 10-04 526 DATE: November 30, 2018 REMANDED Entitlement to an initial compensable disability rating for bilateral hearing loss, to include on an extraschedular basis. Entitlement to a total disability rating based on individual unemployability due to a service-connected disability (TDIU), to include on an extraschedular basis. REASONS FOR REMAND [The Veteran served on active duty from February 1991 to November 1994. These matters are on appeal from a September 2008 rating decision. In September 2014, the Veteran testified at a hearing before a Veterans Law Judge (VLJ) who is no longer available to participate in a decision on this appeal. In March 2016, the Board notified the Veteran of his right to request a new Board hearing before a VLJ who will decide his claim. The Veteran indicated in a March 2016 response that he did not wish to appear at another Board hearing, and that he wanted his case to be considered on the evidence of record. A transcript of the September 2014 hearing is of record. In February 2015 and May 2016, the Board remanded the claims for further evidentiary development. In August 2017, the Board issued a decision that denied the claims for an initial compensable rating for bilateral hearing loss and a TDIU. The Veteran then appealed this decision to the U.S. Court of Appeals for Veterans Claims (Court). In May 2018, based on an Amended Joint Motion for Remand (JMR), the Court issued an Order vacating the Board’s August 2017 decision and remanded the Veteran’s claims to the Board for action consistent with the directives of the JMR. 1. Bilateral hearing loss disability In the May 2018 JMR, the Parties found that in the August 2017 decision the Board erred by failing to provide an adequate statement of reasons or bases for its decision not to refer the claim for an initial compensable rating for bilateral hearing loss for extraschedular consideration. Specifically, the Board incorrectly determined that evidence of the Veteran’s social isolation due to his bilateral hearing loss disability was a functional effect contemplated by the schedular ratings. The Parties agreed that remand was warranted for the Board to evaluate the Veteran’s bilateral hearing loss disability on extraschedular basis under the criteria set forth in Thun v. Peake, 22 Vet. App. 111 (2008), noting that evidence of social isolation is not contemplated by the schedular criteria. Doucette v. Shulkin, 28 Vet. App. 366, 371 (2017). Accordingly, referral to the Director, Compensation and Pension (C&P) Service, for consideration consistent with 38 C.F.R. § 3.321 (b)(1), to determine whether a higher rating is warranted for bilateral hearing loss on an extraschedular basis, is warranted. 2. TDIU In the May 2018 JMR, the Parties found that the Board failed to consider whether the Veteran’s part-time work as a home healthcare worker provided him a living wage sufficient to constitute substantially gainful employment or marginal employment. At this time, the Veteran is service-connected for tinnitus, rated 10% disabling and a bilateral hearing loss, evaluated as noncompensably disabling. His total combined rating is 10%. Accordingly, the Veteran does not meet the minimum schedular requirements for TDIU. See 38 C.F.R. § 4.16 (a). Therefore, the only basis for the assignment of a TDIU is on an extraschedular basis. See 38 C.F.R. § 4.16 (b). Accordingly, the Board concludes that referral of this matter to the Director, C&P Service, for consideration of an extraschedular rating of unemployability consistent with 38 C.F.R. § 4.16 (b) is warranted. The matters are REMANDED for the following action: Refer this case to the Director, C&P Service for (1) consideration of whether the Veteran is entitled to the assignment of an extraschedular rating for bilateral hearing loss pursuant to 38 C.F.R. § 3.321 (b), to specifically consider whether a higher rating is warranted for the Veteran’s complaints of social isolation due to his hearing loss and (2) consideration of an extra-schedular TDIU award (38 C.F.R. § 4.16 (b)), to specifically consider whether the Veteran’s part-time work as a home healthcare worker provided him a living wage sufficient to constitute substantially gainful employment or marginal employment. This referral should include a full statement of the Veteran’s service-connected disabilities, as well as his employment, educational, and medical histories. (Continued on the next page)   In addition to a copy of this Remand, it is highly suggested that the Director, C&P Service, also review the May 2018 JMR. KELLI A. KORDICH Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD T. Adams, Counsel