Citation Nr: 21028854 Decision Date: 05/12/21 Archive Date: 05/12/21 DOCKET NO. 15-45 919 DATE: May 12, 2021 REMANDED Entitlement to ratings for bilateral hearing loss in excess of 10 percent prior to September 28, 2019, and in excess of 40 percent from that date, is remanded. REASONS FOR REMAND The appellant is a Veteran who served on active duty from February 1958 to February 1961. This matter is before the Board of Veterans' Appeals (Board) on remand from the U.S. Court of Appeals for Veterans Claims (CAVC). It was initially before the Board on appeal of a September 2015 rating decision. In February 2018, a videoconference hearing was held before the undersigned; a transcript is in the record. In March 2018 the matter was remanded for further development. An interim (October 2019) rating increased the rating to 40 percent, effective September 28, 2019. A January 2020 Board decision denied entitlement to ratings for bilateral hearing loss in excess of 10 percent prior to September 28, 2019, and in excess of 40 percent from that date. The Veteran appealed that decision to the CAVC. A December 2020 CAVC Order vacated the Board's January 2020 decision and remanded it to the Board for further development and re-adjudication consistent with terms of a December 2020 Joint Motion for Remand (JMR). In the December 2020 JMR, the parties agreed that vacatur and remand was required because the Board erred in several respects. First, the Board failed to ensure that the Department of Veterans Affairs' (VA's) duty to assist was satisfied when it did not make reasonable efforts to obtain the Veteran's outstanding VA audiograms. A February 2017 VA audiological evaluation directed VA to "[s]ee scanned audiogram from today's appointment." The Board also noted that the Veteran asked for his February 2017 VA treatment records to be obtained. Thus, not only did the February 2017 evaluation direct VA to retrieve the scanned audiogram, but he also asked for the treatment records to be obtained. The Board rejected the February 2017 VA audiological evaluation partly because it found the evaluation to be incomplete since the frequencies of Puretone testing thresholds were not recorded; however, the outstanding audiogram may contain such thresholds. The Veteran's claims file does not contain the scanned audiogram and does not otherwise indicate that VA attempted to obtain the outstanding record. Similarly, a March 2014 VA audiological evaluation also directed VA to "[s]ee scanned audiogram dated: 3/10/2014." However, the Veteran's claims file does not contain the scanned audiogram from the March 2014 evaluation. The March 2014 audiogram may show that Appellant's bilateral hearing loss increased from that date. Therefore, remand is necessary for VA to attempt to obtain the above audiograms. The Board also erred by not adequately addressing the June 2018 lay statements by the Veteran's family and friends when concluding that a higher rating for his bilateral hearing loss was not warranted prior to 2019. The relevant June 2018 lay statements from the Veteran's family members and friends indicate increased difficulty communicating and isolation. Additionally, the parties agree that the Board erred when it did not directly address whether the following symptoms, which are not contemplated by the rating criteria under Code 6100, warrant a referral for an extraschedular rating. The claims file contains evidence that the Veteran's bilateral hearing loss has impacted his speech patterns and resulted in increased depression and isolation, and he reported that he experienced dizziness and imbalance due to his hearing loss. At the February 2018 Board hearing, the Veteran and his wife testified that his hearing loss was starting to affect his speech patterns, and in a June 2018 statement, his son related that his hearing loss has affected his speech and caused an "inability to communicate effectively." In additional June 2018 statements, the Veteran's family reported that he is often isolated from most normal conversation, his depression is "very clear," and he no longer socializes with family and friends due to his hearing. Additionally, on September 2015 VA examination, the Veteran reported experiencing "slight imbalance." Following completion of the necessary development outlined above, the Agency of Original Jurisdiction (AOJ) should review the evidence and determine whether the Veteran's service-connected bilateral hearing loss has related symptoms or functional impairment not contemplated in the schedular rating criteria. If so, referral to the VA Director of Compensation for consideration of an extraschedular increased rating would be warranted. The matter is REMANDED for the following: 1. Secure for the record updated (to the present, any not already associated with the record) complete clinical records of all VA evaluations and treatment the Veteran has received for his bilateral hearing loss. 2. Also, arrange for an exhaustive search to locate and secure for the record the March 2014 and February 2017 VA audiograms. If records of such VA treatment cannot be located, it should be so certified for the record, with the scope of the search described. 3. If deemed appropriate following the development sought above, refer the matter of the ratings for the Veteran's bilateral hearing loss to the VA Director of Compensation for consideration of extraschedular increased rating(s). In that regard, review (and address) the above-cited JMR observations of the alleged symptoms and impairment due to hearing loss that are not encompassed by the schedular criteria for rating such disability. If a referral is made, include a full statement outlining the medical evidence and all other factors bearing on the matter (particularly those cited in the JMR). Implement the Compensation Director's determination. If referral is deemed not warranted, explain for the record why that is so. GEORGE R. SENYK Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Bayles, 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.