Citation Nr: 20004074 Decision Date: 01/16/20 Archive Date: 01/16/20 DOCKET NO. 10-47 668 DATE: January 16, 2020 REMANDED Entitlement to a compensable disability rating for bilateral hearing loss is remanded. REASONS FOR REMAND The Veteran served on active duty from November 1966 to September 1968. This case comes before the Board of Veterans’ Appeals (Board) on appeal of a September 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office in Buffalo, New York. This case was previously before the Board in May 2014 when it was remanded to the Agency of Original Jurisdiction (AOJ) for further development and in July 2016 when the Board adjudicated the claim on the merits. In the July 2016 decision, the Board denied the claim of entitlement to an increased rating for bilateral hearing loss. The Veteran appealed the denial to the United States Court of Appeals for Veterans Claims (Court). By way of a June 2019 Memorandum Decision (Memorandum), the Court issued an Order vacating and remanding the denial of entitlement to a compensable rating for bilateral hearing loss. Generally, the Memorandum was based on inadequate schedular consideration of the Veteran’s hearing loss-related impairments, particularly symptoms of dizziness. Entitlement to a compensable disability rating for bilateral hearing loss is remanded. The Veteran has uncompensated dizziness and balance problems. He contends that his balance problems are caused by his ear drum problems. He further contends that his bilateral hearing loss disability rating should contemplate consider his symptoms of dizziness. Accordingly, the Veteran must be afforded an examination to determine whether his symptoms of dizziness are attributable to his bilateral hearing loss or whether the Veteran has a separately diagnosed condition that is characterized or manifested by dizziness. Because the matter must be remanded, the Veteran should be afforded a VA examination to assess the current severity of his bilateral hearing loss. 38 C.F.R. § 3.159(c)(4). Additionally, the Veteran’s lay contentions regarding his hearing loss-related impairments must be considered. The matter is REMANDED for the following actions: 1. Schedule the Veteran for a VA ear examination by an appropriate clinician to determine the nature and etiology of any dizziness or diagnosis characterized or manifested by of dizziness found to be present. The examiner must opine whether it is at least as likely as not (50 percent probability or greater) any dizziness or diagnosed disorder characterized or manifested by dizziness found to be present is related to an in-service injury, event, or disease. If so, the examiner must provide an opinion as to whether it is at least as likely as not that any diagnosed Veteran’s dizziness condition is proximately due to or aggravated by the Veteran’s service-connected disabilities, to include the medications taken for such disabilities. The VA examiner should refer to the June 2017 Rating Decision codesheet for the most current list of the Veteran’s service-connected disabilities. If aggravation is found, a baseline for the level of disability of the dizziness condition absent aggravation must be established, if possible. Aggravation is defined as permanent worsening beyond natural progression of the disease or disability. The examiner’s rationale must include discussion of the Veteran’s medications and the effects, if any, on any diagnosed dizziness condition. The examiner must further discuss the Veteran’s lay statements and all pertinent evidence. If the examiner discounts those statements, an explanation must be provided. All opinions must be supported by a detailed and complete rationale. 2. Schedule the Veteran for a VA audiological examination by an appropriate clinician to determine the current nature and severity of his service-connected bilateral hearing loss. The most up-to-date Disability Benefits Questionnaire must be utilized. The examiner must review the Veteran’s entire claims file in conjunction with the examination. The examination of hearing impairment must be conducted without the use of hearing aids. The examiner is instructed to identify pure tone audiometric thresholds, in decibels, at frequencies of 1000, 2000, 3000, and 4000 Hertz, and the resultant average. A Maryland CNC Test must be administered to determine speech recognition ability. The examiner must also describe the functional effects of the Veteran’s bilateral hearing loss, including on his occupational functioning and daily activities, including symptoms of dizziness. The examiner’s rationale must include discussion of the Veteran’s medications and the effects, if any, on his bilateral hearing loss. The examiner must consider all of the Veteran’s lay contentions. A complete rationale must be given for all opinions and conclusions expressed. 3. Refer this case to the Director, Compensation and Pension, for the possible assignment of an extraschedular rating for bilateral hearing loss. Any response to this referral must be added to the claims file. A. C. MACKENZIE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Alexis B. Markeson, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.