Citation Nr: 21009889 Decision Date: 02/23/21 Archive Date: 02/23/21 DOCKET NO. 14-20 238 DATE: February 23, 2021 REMANDED Entitlement to a compensable rating for bilateral hearing loss for the period from prior to October 6, 2015 is remanded. Entitlement to a disability rating in excess of 30 percent for bilateral hearing loss from October 6, 2015 to November 10, 2020 is remanded. Entitlement to a disability rating in excess of 40 percent for bilateral hearing loss from November 10, 2020 is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Navy from May 1974 to March 1975. This matter is before the Board of Veterans’ Appeal (Board) on appeal from a February 2012 rating decision by the Department of Affairs (VA) Regional Office (RO). This matter was previously before the Board in March 2018; the Board denied entitlement to a compensable rating for bilateral hearing loss. The Veteran appealed this denial to the Court of Appeals for Veterans Claims (Court). The Court approved a Joint Motion for Remand in December 2018. The Court vacated the issue and remanded the matter for further development and readjudication. The matter again came before the Board in June 2019 and September 2020. The Board remanded the issue for additional development in both decisions. During the course of the appeal, the RO granted a rating of 30 percent, effective October 6, 2015 and a rating of 40 percent, effective November 10, 2020 for the Veteran’s bilateral hearing loss. This is not a full grant of benefits; the issue of an increased evaluation for bilateral hearing loss remains on appeal. 1. Entitlement to increased ratings for bilateral hearing loss is remanded. 2. Entitlement to a TDIU is remanded. As noted, the Veteran’s claim has a long history before both the Board and the Court of Appeals for Veterans Claims (Court). Unfortunately, another remand is required to ensure that the Veteran has been afforded due process. The Veteran has consistently maintained that his service-connected hearing loss is more severe than currently rated. He has also contended that his hearing loss results in a loss of income. The Court recently clarified the application of extraschedular consideration under 38 C.F.R. § 3.321 as it pertains to hearing loss claims. In Long v. Wilkie, No. 16-1537, 2020 U.S. App. Vet Claims LEXIS 2371 (Vet. App. Dec. 30, 2020), the Court held that an extraschedular rating requires symptoms that are truly unusual or exceptional. In the field of hearing loss claims, the Long court reiterated its previous decision in Doucette v. Shulkin, 28 Vet. App. 366, 369 (2016) that the rating criteria for hearing loss contemplates symptoms related to decreased hearing. Id. at *7-8. Here, the Veteran’s contentions regarding his hearing loss all deal with his ability to communicate and the effects that such communication has on his ability to perform his job. In other words, the Veteran has alleged that his hearing loss results in decreased hearing, a symptom fully contemplated by the rating criteria for hearing loss. That said, in Morgan v. Wilkie, 31 Vet. App. 162, 168 (2019), the Court held that extraschedular consideration is only appropriate after VA exhaust all other tools for a disability rating, including consideration of a TDIU. Here, it is not clear whether the Veteran is contending that he is unable to secure or follow a substantially gainful occupation as a result of his hearing loss, or whether his hearing loss simply has simply resulted in his career and work being less financially gainful. Previously, the Veteran’s manager reported that his hearing loss affects the Veteran’s work performance and sales. The Veteran noted in a letter that he is unable to hear clients, that his hearing loss affects his ability to communication, and that his income was reduced. At his most recent VA examination in November 2020, the Veteran reported that he is unable to perform his job as an insurance agent due to his inability to hear and understand what potential customers say, and that this has resulted in a loss of revenue. While not clearly establishing the Veteran’s current employment status, these statements nevertheless raise the issue of entitlement to a TDIU. Thus, the Veteran’s claim must be remanded in order to develop that claim. Specifically, the Board is directing that the Veteran be provided a formal claim for a TDIU. While completing this form is not a strict requirement, the formal claim includes a wealth of information necessary to adequately address the Veteran’s disability, including his current employment (if any), his work history, and his education. Thus, the Veteran is advised that a failure to return this form may result in a decision being rendered on a less than full evidentiary picture, or in the denial of his claim. Because the Veteran’s combined disability rating does not meet the schedular threshold for a TDIU, the Board is also directing that the Veteran’s case be submitted to the Director of VA’s Compensation Service for extraschedular consideration. To be clear, the Board is not currently finding that the Veteran meets the criteria for a TDIU, or that such a claim will be granted upon return (indeed, as noted, it is not even clear whether the Veteran is currently employed). Instead, as the Board is not able to award a TDIU on an extraschedular basis without first obtaining this opinion, this directive preserves judicial economy and serves to ensure that the Board may take whatever action is necessary when the case is returned without requiring yet another remand. Finally, as the issue of entitlement to an increased rating for bilateral hearing loss is inextricably intertwined with the TDIU issue, that claim must be remanded as well. The matters are REMANDED for the following action: 1. Provide the Veteran with VA Form 21-8940 (Veteran’s Application for Increased Compensation Based on Unemployability). If the Veteran returns a completed TDIU application, then conduct any necessary development required. 2. After completing the above ordered development, submit the case to the Director, Compensation Service for extraschedular consideration. Evan M. Deichert Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Mouzakis, 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.