Citation Nr: 18156203 Decision Date: 12/07/18 Archive Date: 12/07/18 DOCKET NO. 09-35 007 DATE: December 7, 2018 REMANDED Entitlement to a compensable rating for bilateral hearing loss disability, prior to July 7, 2011, to include on an extra-schedular basis, is remanded. Entitlement to a rating in excess of 20 percent, as of July 7, 2011, for bilateral hearing loss disability, to include on an extra-schedular basis, is remanded. Entitlement to a rating in excess of 40 percent, as of October 6, 2015, for bilateral hearing loss disability, to include on an extra-schedular basis, is remanded. REASONS FOR REMAND The Veteran served on active duty from November 1968 to August 1971. In a September 2016 decision, the Board denied increased ratings for bilateral hearing loss, for all relevant periods, to include extraschedular consideration. The Board arrived at that decision, after extended development, to include an October 2015 VA audiology examination, and a formal determination from the Director of Compensation and Pension Services for extraschedular consideration. 38 C.F.R. § 3.321; Johnson v. McDonald, 762 F.3d 1362 (Fed. Cir. 2014). In a formal determination from the Director, the Veteran was denied, for all relevant periods, an increased rating based on extraschedular consideration. The Director, like all previous decisions, found that severity of the Veteran’s hearing loss was contemplated by the Veteran’s current rating. The Veteran appealed the September 2016 Board decision to the United States Court of Appeals for Veterans Claims. In a January 2018 Memorandum Decision, the Court set aside the Board’s September 2016 decision that denied the claim for an extraschedular rating and remanded the matter for further proceedings consistent with the decision. 1. Entitlement to an increased compensable rating for bilateral hearing loss disability, to include on an extra-schedular basis is remanded. The Court’s January 2018 Memorandum Decision noted that while the Veteran underwent VA audiology examinations throughout the claims period, and was provided a decision from the Director, the Board’s denial of an extraschedular rating was inadequate. Specifically, the Court noted that the Board, to include all developments prior, failed to describe the functional effects caused by the Veteran’s hearing loss disability at the higher decibel ranges, to include 6000 Hertz to 8000 Hertz, where the Veteran’s hearing acuity was most profound. The Court noted that extraschedular consideration requires an adequate reasoning and basis as to how a diagnostic code, which applies objective averages from 1000 Hertz to 4000 Hertz, can adequately contemplate severe deficiencies in acuity at 6000 Hertz or 8000 Hertz. Additionally, the Court noted that the Board’s September 2016 decision did not adequately address or consider how the Veteran’s complaint of actual functional impairment in his hearing did not constitute marked interference with employment. The Court noted the Veteran’s lay assertions that because he could not hear when there were multiple speakers or background noise, he could no longer do his job as a project manager adequately. The Court ultimately found not enough consideration or explanation was provided by the Board in consideration of both the higher decibel ranges and the functional effect on the Veteran’s employment. Without explicit consideration, the Court found the Board’s extraschedular analysis to be inadequate. The Board finds that another VA examination is required to assess and speak to the functional impairment of the Veteran’s hearing loss as noted by the Court. The Board is not competent to speak to the effects of the hearing loss asserted by the Veteran, to especially include the effects of higher decibel range. As such, a remand is required for further development to include a VA examination. The matters are REMANDED for the following action: Schedule the Veteran for a VA audiology examination to determine the current severity of bilateral hearing loss disability. Puretone threshold testing, the Maryland CNC speech audiometric test, and any other tests or studies deemed necessary by the examiner should be performed. The examiner must review the claims file and must note that review in the report. The examiner is requested to fully describe the functional effects caused by the Veteran’s hearing disability, to specifically include the functional effects, if any, of the significant hearing loss noted by the objective criteria at the higher Hertz levels, such as 6000 Hertz and 8000 Hertz. The Board asks the examiner to explain and provided examples of the types of sounds that would register at 6000 Hertz and 8000 Hertz that may be inaudible to the Veteran. The examiner must explicitly address all considerations with regard to the actual functional loss considering the entire spectrum of the Veteran’s demonstrated hearing loss at all levels, and to include speech discrimination. The examiner must explicitly address whether the objective audiometry test results are not reliable in fully contemplating the Veteran’s functional loss due to hearing. If so, the examiner should provide a detailed explanation as to how that conclusion was reached, and how best to evaluate the actual functional effects of such disability. The examiner should also opine whether the hearing loss disability result in marked interference with employment, and should explain why or why not. The examiner shall also explicitly note consideration of the Veteran’s subjective reports of the effects of his hearing loss, to specifically include whether the disability produces a marked impairment to any potential employment. The examiner is not to opine as to whether the Veteran could obtain or sustain gainful employment, but rather in the examiner’s expert opinion, whether the Veteran’s hearing loss produces such functional impairment as to markedly interfere with any occupation the Veteran may obtain. The examiner should state what type of work was considered, such as the Veteran’s previous employment as a project manager or other types of employment, and should state what accommodations would be necessary due to the service-connected hearing loss disability. Harvey P. Roberts Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Zi-Heng Zhu, Associate Counsel