Citation Nr: 18155562 Decision Date: 12/04/18 Archive Date: 12/04/18 DOCKET NO. 10-46 352 DATE: December 4, 2018 REMANDED Entitlement to a compensable rating for bilateral hearing loss on an extraschedular basis is remanded. REASONS FOR REMAND The Court of Appeals for Veterans Claims (CAVC), on March 16, 2018, vacated a December 6, 2016 Board decision that denied a compensable rating for bilateral hearing loss. The Court noted that the Veteran did not raise argument regarding a higher schedular rating for bilateral hearing loss and that issue was abandoned on appeal. The Court remanded to the Board the issue of a compensable rating for bilateral hearing loss on an extraschedular basis because the Board did not properly explain why it denied extraschedular consideration and failed to analyze the entirety of the Veteran’s functional effects and all of the Veteran’s service-connected disabilities. Although the regulations require that an examiner elicit information from the appellant concerning the functional effects of his disability. However, in its November 2013 remand, the Board required more; specifically, that the examiner provide a medical opinion with rationale on the overall functional impacts. Unfortunately, there has not been substantial compliance with the Board’s previous remand directives regarding the issue of bilateral hearing loss. In November 2013 the Board remanded the issue of bilateral hearing loss and asked the examiner to “provide an opinion as to the overall effect of the Veteran’s service-connected hearing loss has on his occupational and daily functioning.” Since neither the February 13, 2014 exam or the November 6, 2014 exam fully complied with that remand, another remand is required. Stegall v. West, 11 Vet. App. 268, 271 (1998). The matter is REMANDED for the following action: 1. Afford the Veteran the opportunity to identify or submit any additional relevant evidence and argument in support of his claims on appeal. Request that he identify any other relevant treatment that he has received or is receiving, and request that he forward any additional records to VA to associate with the claims file or provide VA with authorization to obtain such records. 2. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected bilateral hearing loss. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. 3. In addition to requesting from the Veteran in his own words the nature, frequency and severity of his sensed hearing loss, and to the extent possible, the examiner should identify any symptoms and functional impairments due to bilateral hearing loss alone and provide a medical assessment of effect of the Veteran’s bilateral hearing loss on any occupational functioning and activities of daily living. The Veteran has previously reported requiring a loud volume on a television, need to use a speaker telephone, asking persons to repeat conversation, and on one occasion reported difficulty hearing a fire truck approaching while he was driving. The examiner’s medical opinion should assess the accuracy and credibility of these reports in the context of the measured degree of hearing loss and assess whether the Veteran should continue to drive and whether he can remain safe and functional in a workplace and at home in accomplishing daily activities. In short, the Board is seeking an opinion whether there are any exceptional factors associated with hearing loss to apply to the criteria for an extraschedular rating pursuant to 38 C.F.R. § 3.321 (b)(1). See Bagwell v. Brown, 9 Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). The entire claims file must be made available and reviewed by the examiner in conjunction with the examination and such should be acknowledged in the report. It is pertinent that the examiner review the examinations and medical records since 2008. Additionally, the examiner should pay particular attention to the Veteran’s lay statements and discuss them in detail in the opinion. The examiner must provide a complete rationale for any opinion given without resorting to speculation resolving any conflicting medical opinions. 3. Then, based on the results of this examination, refer the appeal to the Director, Compensation and Pension service for consideration of an extraschedular rating. 4. The RO is to readjudicate the issue on appeal. If the benefit being sought is not granted, the Veteran and his representative should be furnished with a supplemental statement of the case (SSOC) and afforded an opportunity to respond before the record is returned to the Board for further review. J.W. FRANCIS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD C. Harner, Associate Counsel