Citation Nr: 21061674 Decision Date: 10/05/21 Archive Date: 10/05/21 DOCKET NO. 17-45 898 DATE: October 5, 2021 REMANDED Entitlement to an evaluation in excess of 20 percent for service-connected bilateral hearing loss, to include on an extraschedular basis, is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from May 1970 to January 1972. He also had additional service of an unverified nature in the Army Reserve. This matter comes to the Board of Veterans' Appeals (Board) from a May 2017 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO) of the Veterans Benefits Administration (VBA), which is the Agency of Original Jurisdiction (AOJ). The Veteran expressed timely disagreement with this determination, and the present appeal ensued. The Veteran's appeal was previously before the Board in April 2019, when it was determined that remand was necessary to ensure that VA fulfilled its duty to assist the Veteran in substantiating his appeal. The Board's prior remand directives and the subsequent actions of the AOJ will be discussed below. The Veteran's appeal has been returned to the Board for further appellate consideration. 1. Entitlement to an evaluation in excess of 20 percent for service-connected bilateral hearing loss, to include on an extraschedular basis, is remanded. In pertinent part, the Board's April 2019 remand expanded the Veteran's appeal to include entitlement to an increased evaluation on an extraschedular basis based on contentions of the Veteran's representative and directed the AOJ request that the Veteran be provided a VA audiological examination and undertake additional procedural actions, if necessary, for consideration of an extraschedular evaluation under 38 C.F.R. § 3.321 (b). Regarding the requested VA examination, the Board directed that, in addition to the completion of audiometric testing, the examiner was to elicit information from the Veteran concerning the manifestations of his service-connected bilateral hearing loss and the impact of such on his employability and social functioning. The requested VA audiological examination was completed in December 2019. In an October 2020 appellate brief, the Veteran's representative contended that the December 2019 VA examination was inadequate because the examiner did not comment on whether the Veteran's service-connected bilateral hearing loss impacted his social interactions or employability or whether such resulted in frequent hospitalizations. Contrary to this contention, the December 2019 VA examination report reflects that the Veteran "turns up" the volume of his television and has difficulty understanding the speech of others in a social setting; however, such did not negatively impact his ability to function in his former occupation as a farmer or result in frequent, or any, hospitalization. Despite the efforts of the December 2019 VA examiner, the Board concludes that the December 2019 VA examination report is inadequate for the purpose of readjudicating the Veteran's appeal. Specifically, the examiner did not indicate whether the Veteran's service-connected bilateral hearing loss markedly interfered with his most recent employment as a warehouseman for the California Department of Corrections. Further, the United States Court of Appeal for Veterans Claims (Court) held in Sowers v. McDonald, 27 Vet. App. 472, 478 (2016) that the "rating schedule must be deemed inadequate before extraschedular consideration is warranted." To this point, the Veteran reported at a July 2007 VA audiological examination that his bilateral hearing loss was manifested by dizziness, fullness, drainage, and ear pain, in addition to decreased hearing acuity. While the Board notes that this evidence pre-dates the appeal period for consideration in the Veteran's claim for increased rating, there is no indication in the record whether these symptoms, which are not contemplated by VA's rating schedule, have continued to the present or resolved. This distinction is critical in cases such as the present, where referral for extraschedular consideration is at issue. In view of above, the Board concludes that another remand is necessary in order to ensure that VA fulfills its duty to assist the Veteran in substantiating his appeal. The matters are REMANDED for the following actions: 1. The AOJ must associate with the file all update records of VA and private treatment, with the Veteran's assistance regarding the latter. 2. Thereafter, the AOJ must request that the Veteran be scheduled for a VA audiological examination, to include pure tone audiometry testing and a controlled speech discrimination test using the Maryland CNC word list. Auditory thresholds in decibels, for the right and left ears, for the frequencies of 500, 1000, 2000, 3000, and 4000 Hertz, and speech recognition scores, for the right and left ears, using the Maryland CNC word list, must be provided. The claims folder must be made available for review by the examiner in conjunction with the examination. The examiner must provide findings as to the impact of the Veteran's hearing loss disability on his daily functioning, social functioning, and whether such caused (or would cause) marked interference with his former occupation as a warehouseman. *In addressing the above, the examiner must elicit from the Veteran the duties of his former occupation and comment on whether the Veteran's service-connected bilateral hearing loss would interfere with his ability to safely function in such a work setting. The examiner is also requested to elicit from the Veteran whether his service-connected bilateral hearing loss manifests in symptoms other than decreased hearing acuity, to include ear pain, fullness, dizziness, and draining. Lastly, the examiner must comment on whether the Veteran's service-connected bilateral hearing loss resulted in frequent hospitalizations during the appeal period (since March 2016). If the examiner cannot provide an opinion without resorting to mere speculation, this should be so stated along with supporting rationale. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to the particular question. 3. If the VA examination report reflects that the Veteran's service-connected bilateral hearing loss is manifested by symptoms other than decreased hearing acuity and/or resulted in or would have resulted in marked interference with his former occupations as a farmer or warehouseman, the AOJ must refer the Veteran's appeal to the Undersecretary for Benefits or the Director of Compensation Service for an advisory opinion concerning the assignment of an increased evaluation on an extraschedular basis under 38 C.F.R. § 3.321 (b). The advisory opinion must include a complete analysis of the facts specific to the Veteran's case, as reflected in the file, as applied to the controlling statutes, regulations, and case law. 4. Thereafter, the AOJ must readjudicate the Veteran's appealed issues in light of the totality of evidence of record. If any benefit sought is not granted to the fullest extent, the AOJ must provide the Veteran and his representative with a copy of the readjudication and afford them an appropriate period to respond. Michael J. Skaltsounis Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Scott W. Dale, 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.