Citation Nr: 21015570 Decision Date: 03/17/21 Archive Date: 03/17/21 DOCKET NO. 13-06 227A DATE: March 17, 2021 REMANDED Entitlement to a compensable schedular rating for bilateral hearing loss is remanded. Entitlement to an extraschedular rating for bilateral hearing loss is remanded. REASONS FOR REMAND The Veteran served on active duty from December 1955 to November 1957. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an April 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The Veteran testified before the undersigned Veterans Law Judge during a February 2017 hearing. A transcript of the hearing is associated with the Veteran’s claim file. This appeal has been advanced on docket pursuant to 38 C.F.R. §§ 20.900(c) (2017). 38 U.S.C. §§ 7107(a)(2) (West 2012). This matter was previously before the Board in December 2017, wherein the Board denied the Veteran a compensable rating for bilateral hearing loss. The Veteran appealed this decision to the United States Court of Appeals for Veterans Claims (CAVC). The parties agreed to a Joint Motion for Remand (JMR) in December 2018 as the Board failed to adequately explain whether treatment records from Palm Bay Hospital were associated with the claims file and were available for the Board to consider making its decision. The matter was before the Board again in June 2019 and the case was remanded to obtain private treatment records, including those from Palm Bay Hospital and to obtain a new VA examination for consideration on a schedular and extraschedular basis. In August 2020, the Board remanded the issues to obtain records from Dr. T.A. and another VA examination as the previous examination in February 2020 did not adequately describe the functional effects caused by the Veteran’s hearing loss. The matter has returned to the Board for appellate consideration. Although the Board regrets the additional delay, a remand is necessary to ensure that due process is followed and there is a complete record upon which to decide the Veteran’s claim so that he is afforded every possible consideration. See 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c). 1. Entitlement to a compensable schedular rating for bilateral hearing loss The Veteran contends that his service-connected bilateral hearing loss warrants a higher evaluation than the current noncompensable evaluation. In January 2020, the Veteran submitted VA Form 21-22, Authorization to Disclose Information to the Department of Veterans Affairs (VA) for Dr. T.A. The VA contracting facility for private treatment records was informed that the doctor was never on staff at the specific location listed on the VA Form 21-22. The Veteran was not notified of this discrepancy and the August 2020 remanded the issue, in part, to notify the Veteran that the information listed for Dr. T.A. was inaccurate and to provide the Veteran the opportunity to submit a new release with the correct information so that the RO can obtain the treatment records. In August 2020, the RO sent a letter to the Veteran requesting a new release with updated information for Dr. T.A. The Veteran submitted a new release for Dr. T.A. in October 2020 but did not list the specific dates of treatment on the form. In November 2020, the VA contracting facility for private treatment records was informed by Dr. T.A.’s office that no dates of treatment was indicated on the release form and that the request and authorization should be updated to include treatment dates in which the patient was seen and to resubmit the request with the necessary information. The RO notified the Veteran in a November 2020 letter that they received correspondence from Dr. T.A.’s office stating that there were no records for the dates of treatment requested, but did not specify that the Veteran should submit another request for Dr. T.A. with the specific dates of treatment nor did the RO provide the Veteran with a new release form so that he could provide the treatment dates. As such, the Board finds that a remand is warranted in order to ensure that the Veteran is afforded the opportunity to submit a new release form for Dr. T.A. 2. Entitlement to an extraschedular rating for bilateral hearing loss The Veteran asserts that his service-connected bilateral hearing loss is not adequately contemplated by the schedular rating criteria and that extraschedular consideration is warranted. The Veteran was most recently afforded a VA examination in November 2020. The VA examiner indicated that the Veteran’s hearing loss impacts ordinary conditions of daily life, including the ability to work. The Veteran stated that he has trouble talking to people on the phone and when people are talking to him face to face. Additionally, the VA examiner noted that it is well known that tinnitus is a subjective complaint that is commonly associated with noise induced hearing loss. The Veteran reported onset of tinnitus occurring during his deployment to Germany. The VA examiner stated that it is also a common complaint and known side effect that if the perceived sound is loud enough it can interfere with the Veteran’s ability to understanding speech since it serves as a distraction from focusing on what is being communicated at this time. Additionally, the VA examiner found that the Veteran's hearing loss does not pose a functional impairment, as to markedly interfere with any occupational ability such as previous employment as a cable installer or other type of employment. However, at the February 2017 Board hearing, the Veteran had testified that he stopped working, in part, because he could not hear well. He stated that he was unable to hear his boss calling to him from a few feet away down the road. See February 2017 Board hearing transcript at pg. 10. Generally, disability ratings are determined by evaluating the extent to which a Veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in VA's Rating Schedule. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. However, to accord justice in the exceptional case where the criteria in VA's Rating Schedule are found to be inadequate, an extraschedular rating that is commensurate with the average earning capacity impairment caused by the service-connected disability is warranted. 38 C.F.R. § 3.321(b)(1). Such a rating is warranted when the case presents such an unusual disability picture with related factors such as marked interference with employment as to render impractical the application of the regular schedular standards. Id. Accordingly, the Board finds that the Veteran's claim for an increased rating for hearing loss must be remanded and referred to VA's Director of Compensation Service for extraschedular consideration. Thun v. Peake, 22 Vet. App. 111, 115-16 (2008). The matters are REMANDED for the following action: 1. Obtain VA treatment records from July 2020 to present. All reasonable attempts should be made to obtain any identified records. 2. Inform the Veteran that the records for Dr. T.A. were unable to be requested due to no specific treatment dates listed on the release form. Ask the Veteran to provide a new release with the specific dates of treatment for Dr. T.A. The RO must document all attempts to obtain the records in the claims file. The RO should notify the Veteran if the attempts to obtain records are unsuccessful and give the Veteran an opportunity to provide the records. 3. Once the above development has been completed, refer the Veteran's claim for an increased rating for bilateral hearing loss on an extraschedular basis to VA's Director of Compensation Service for extraschedular consideration. MARJORIE A. AUER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. Kim, 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.