Citation Nr: 18158014 Decision Date: 12/14/18 Archive Date: 12/13/18 DOCKET NO. 13-10 978 DATE: December 14, 2018 REMANDED Entitlement to an initial compensable evaluation from July 12, 2011 to July 13, 2015, and an initial evaluation in excess of 10 percent from July 14, 2015, for bilateral hearing loss is remanded. Entitlement to an initial evaluation in excess of 10 percent for tinnitus, to include on an extraschedular basis, is remanded. REASONS FOR REMAND The Veteran served on active duty in the U.S. Army from July 1966 to June 1968. These matters come before the Board of Veterans’ Appeals (Board) on appeal from rating decisions in August 2012 and August 2015 by the Department of Veterans Affairs (VA) Regional Office (RO). In the August 2012 rating decision, the RO granted service connection for tinnitus and assigned a 10 percent evaluation, effective April 14, 2012. The Veteran appealed for a higher initial evaluation. During the pendency of the appeal, the RO issued a September 2013 rating decision granting an earlier effective date for the award of the grant of service connection for tinnitus, effective July 12, 2011. In the August 2015 rating decision, the RO granted service connection for bilateral hearing loss and assigned a noncompensable evaluation, effective July 12, 2011, and a 10 percent evaluation, effective July 14, 2015. The Veteran appealed for a higher initial evaluation. The case was initially brought before the Board in April 2015, at which time the Board denied a higher than 10 percent evaluation for tinnitus and remanded the claim for service connection for bilateral hearing loss for further development. As noted above, that service connection claim for bilateral hearing loss was subsequently granted. The Veteran appealed the April 2015 decision to the U.S. Court of Appeals for Veterans Claims (Court). In an August 2016 memorandum decision, the Court vacated the portion of the April 2015 Board decision denying a higher than 10 percent evaluation for tinnitus and remanded the matter for readjudication consistent with the decision. The case was returned to the Board. In March 2017, the Board remanded the issues on appeal for additional development. As discussed below, there has not been substantial compliance with the March 2017 remand instructions, so the matters must be remanded. See Stegall v. West, 11 Vet. App. 268 (1998); D’Aries v. Peake, 22 Vet. App. 97, 105 (2008). 1. Entitlement to an initial compensable evaluation from July 12, 2011 to July 13, 2015, and an initial evaluation in excess of 10 percent from July 14, 2015, for bilateral hearing loss is remanded. 2. Entitlement to an initial evaluation in excess of 10 percent for tinnitus, to include on an extraschedular basis, is remanded. In its August 2016 memorandum decision, the Court described the deficiencies found in the April 2015 Board decision. In that regard, the Court agreed with the Veteran’s assertion that the Board did not provide an adequate analysis of its finding that a referral for extraschedular consideration for tinnitus was not warranted. Specifically, the Court noted that the Board must address the Veteran’s report in a November 2011 VA audiology consult, in which the Veteran reported that his bilateral constant tinnitus was “bothersome” and caused him to sometimes experience the following: difficulty concentrating and hearing people, anger and confusion due to tinnitus, complaining a great deal, trouble falling asleep at night, interference with ability to enjoy social activities and enjoy life, and difficulty reading. The Court also noted that the Board must address the April 2012 VA examiner’s notation that the Veteran’s tinnitus had impacted his life by requiring him to use a sound machine at night to help him sleep and that his tinnitus was bothersome. The Board also notes that at the July 2015 VA examination, the Veteran reported that the Veteran’s ringing in his ears made it difficult to fall back asleep if he woke up in the middle of the night. In compliance with the Court’s August 2016 memorandum decision, the Board, in its March 2017 remand, found that the available medical evidence, in the form of the most recent VA examination, did not provide enough detail for the purpose of determining whether referral of the issue of entitlement to an extraschedular rating for tinnitus was warranted. In that regard, the Board determined that it was unclear as to whether the Veteran’s above described symptoms and resulting functional impairments could be medically and separately attributed to his service-connected tinnitus or service-connected hearing loss disability. See Mittleider v. West, 11 Vet. App. 181 (1998). Thus, to avoid violating the rule against pyramiding, the Board instructed the RO to obtain a new VA examination to determine the severity, symptomatology and functional impairments of the Veteran’s tinnitus, to include whether his symptoms may be separately attributed to the Veteran’s tinnitus and hearing loss. See 38 C.F.R. § 4.14. In June 2017, the Veteran was afforded a VA audiological examination. However, the examiner did not provide the requested opinion addressing whether it was possible to distinguish and separately attribute the effects of the Veteran’s service-connected tinnitus, to include symptoms and functional impairments, from his service-connected bilateral hearing loss. Given that the RO did not comply with the Board’s March 2017 remand directives, another remand is required. See Stegall v. West, 11 Vet. App. 268 (1998). Moreover, the Veteran noted that when his higher initial evaluation claim for bilateral hearing loss was last adjudicated by the RO in an April 2018 statement of the case, the RO did not review and consider the findings of the June 2017 VA audiological examination. Thus, the Board finds that on remand, the RO must consider all relevant evidence, including the June 2017 VA audiological examination, in evaluating the higher initial evaluation claim for bilateral hearing loss. The matters are REMANDED for the following actions: 1. Obtain all the outstanding treatment records for the Veteran’s bilateral hearing loss and tinnitus that are not currently of record. 2. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected bilateral hearing loss and tinnitus. To the extent possible, the examiner should provide current findings regarding all symptoms associated with the Veteran’s service-connected bilateral hearing loss and tinnitus and should opine as to their severity. The examiner is also asked to please address the effects and impacts of the Veteran's tinnitus on his ability to function on a day-to-day basis and in his job. In so doing, the examiner is requested to attempt (to the extent possible) to distinguish and separately attribute the effects, to include symptoms and functional impairments, of the service-connected tinnitus and of the separately service-connected bilateral hearing loss disability. Please note if it is not possible to attribute the Veteran's symptoms to each disability separately. The examiner's is asked to consider the following: a. The Veteran's report in the November 2011 VA audiology consult, in which the Veteran reported that his bilateral constant tinnitus is "bothersome" and causes him to sometimes experience the following: difficulty concentrating and hearing people, anger and confusion due to tinnitus, complaining a great deal, trouble falling asleep at night, interference with ability to enjoy social activities and enjoy life, and difficulty reading. b. The April 2012 VA examiner's notation that the Veteran's tinnitus has impacted his life by requiring him to use a sound machine at night to help him sleep and that his tinnitus is bothersome. c. The July 2015 VA examination, in which the Veteran reported that the Veteran's ringing in his ears makes it difficult to fall back asleep if he wakes up in the middle of the night. (Continued on the next page)   All findings should be fully documented in the examination report. The examiner is asked to provide a complete rationale for all conclusions and opinions expressed. If an opinion cannot be expressed without resort to speculation, discuss why this is the case. LESLEY A. REIN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Journet Shaw