Citation Nr: 21039908 Decision Date: 07/01/21 Archive Date: 07/01/21 DOCKET NO. 12-20 093 DATE: July 1, 2021 ISSUE Entitlement to an initial compensable rating for bilateral hearing loss, to include on an extraschedular basis. REMANDED Entitlement to an initial compensable rating for bilateral hearing loss, to include on an extraschedular basis is remanded. REASONS FOR REMAND The Veteran served on active duty in the U.S. Marine Corps from May 1972 to June 1976. This matter is before the Board of Veteran's Appeals (Board) on appeal from a December 2010 rating decision by a Department of Veteran's Affairs (VA), Regional Office (RO). In that December 2010 rating decision, the RO granted entitlement to service connection for bilateral hearing loss with an initial noncompensable rating. The Veteran submitted a timely Notice of Disagreement (NOD) in March 2011, appealing the evaluation of his bilateral hearing loss. A Statement of the Case (SOC) was issued in June 2012, and the Veteran's substantive appeal (VA Form 9) was submitted in July 2012, perfecting his appeal for a higher initial rating for his service-connected bilateral hearing loss. Additionally, by way of background, this matter was before the Board in October 2016, May 2018, July 2019, July 2020 and April 2021. In the October 2016 decision, the matter was remanded for further development. In the May 2018 decision, the Veteran's claim of entitlement to an initial compensable rating for bilateral hearing loss was denied. In March 2019, the Veteran appealed his case to the U.S. Court of Appeals for Veterans Claims (CAVC). In March 2019, CAVC vacated the Board's May 2018 denial of the Veteran's claim for a higher initial rating for bilateral hearing loss pursuant to a Joint Motion for Remand (JMR.) See March 19, 2019 CAVC Order. In the March 2019 JMR, the parties agreed that remand of the Veteran's claims was required because the Board did not ensure that VA complied with its duty to assist under the requirements of 38 U.S.C. § 5103Acand38 C.F.R. § 3.159 (c) by failing to obtain or attempt to obtain outstanding VA and private treatment records. The parties agreed that the VA treatment records reflected various records scanned into the VA VistA imaging system that were not associated with the record, specifically numerous documents generated during VA emergency room (ER) visits were scanned into the VA VistA imaging system, including VA emergency treatment visits, administrative notes, and non-VA care consult records including a December 2015 ER visit in which the Veteran was seen for a right ear ache. In addition, a March 2010 VA audiology consult that the Board noted and relied on its decision found severe high frequency hearing loss, but no audiology testing results were included within this treatment record despite confirmation by the audiologist that the Veteran underwent audiological evaluation. Because there was no indication that VA sought to obtain these records, the parties to the joint motion agreed that the duty to assist was not satisfied. The parties also agreed that the Veteran's reports of trouble sleeping due to his hearing loss reasonably raised the issue of entitlement to an extraschedular rating for hearing loss and that this argument should be addressed by the Board. The issue for the Board was therefore recharacterized to include extraschedular consideration. Therefore, the parties instructed that the Board obtain the identified VA VistA imaging treatment records and the March 2010 audiology testing results. In the July 2019 decision, the Veteran's claim was remanded for further development, to specifically obtain records identified by the parties to the JMR. In the July 2020 decision, the Veteran's claim for entitlement to an initial compensable rating for bilateral hearing loss, to include on an extraschedular basis was remanded to obtain and associate with the claims file, the complete results of the Veteran's audiological evaluation performed at the Loma Linda, California VAMC on March 31, 2010. In the April 2021 decision, the matter was remanded to obtain the JMR identified VistA imaging treatment records to comply with the July 2019 Board remand and March 2019 JMR. The Board notes that since the Regional Office (RO) issued the most recent November 2020 Supplemental Statement of the Case (SSOC) regarding this claim, updated VA treatment records have been associated with the claims file. Although no subsequent SSOC has been issued, the above issue is being remanded herein. Therefore, the RO will have another opportunity to review this evidence and the Veteran is not prejudiced by the Board proceeding with adjudication of this claim. The Board finds that while there has been substantial compliance with the April 2021 Board Remand, for reasons discussed below, the Board finds that further development on this claim is required prior to adjudication. Entitlement to an initial compensable rating for bilateral hearing loss, to include on an extraschedular basis is remanded. The Court has held that, where the record does not adequately reveal the current state of a claimant's disability, fulfillment of the statutory duty to assist requires a contemporaneous medical examination, particularly if there is no additional medical evidence that adequately addresses the level of impairment of the disability since the last examination. Allday v. Brown, 7 Vet. App. 517, 526 (1995). The Veteran was most recently afforded VA examinations for his service-connected bilateral hearing loss in December 2016. See December 23, 2016 Bilateral Hearing Examination. The Veteran has since alleged that his bilateral hearing loss disability is far worse than is represented by his current rating. See June 11, 20211 Appellate Brief, pg. 2. Therefore, the Board finds that a remand is required in order to determine the Veteran's current level of impairment with regard to his service-connected bilateral hearing loss due to his allegations of worsening and the degenerative nature of his condition. See Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994); VAOPGCPREC 11-95 (1995). As referenced in the introduction of this decision, the Board also notes that in the March 2019 Order, the Court granted the parties Joint Motion for Remand (JMR). The parties agreed that the Board decision did not adequately address whether referral of the Veteran's bilateral hearing loss claim for extraschedular consideration is warranted. The Board finds that the claim for increased rating should be remanded and referred to VA's Director of Compensation Service for extraschedular consideration because the symptoms reported by the Veteran are not contemplated by the schedular criteria and cause interference with the Veteran's employment. Thun v. Peake, 22 Vet. App. 111 (2008). Specifically, the Veteran complains of difficulty sleeping as a result of his bilateral hearing loss disability, reflected in his November 2010 bilateral hearing loss examination, which is not among the symptoms contemplated by the rating criteria for hearing loss disabilities. Doucette v. Shulkin, 28 Vet. App. 366 (2017). See, November 30, 2010, Bilateral Hearing Loss examination re: difficulty sleeping, tinnitus; See also December 7, 2015 Triage Note re: a good night's sleep will help improve your overall health and health being. The Board also notes that the December 2016 VA examiner reported that the Veteran's bilateral hearing loss impacts the ordinary conditions of his life, including his ability to work. With respect to interference with employment, the Veteran has been employed in the field of car sales and has contended that he has lost sales as a result of his bilateral hearing loss disability. See December 23, 2016 Bilateral Hearing loss examination, pg. 6. See also, March 7, 2011 Notice of Disagreement. Accordingly, this matter is REMANDED for the following action: 1. Obtain any outstanding VA or private treatment records related to the Veteran's bilateral hearing loss disability and associate them with the claims file. 2. After completion of the foregoing, schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected bilateral hearing loss. The examiner must review the Veteran's entire claims file, to include a copy of this REMAND, and that review must be noted in the examination report. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran's disability under the rating criteria. The examiner should identify any symptoms and functional impairments due to bilateral hearing loss alone and discuss the effect of the Veteran's bilateral hearing loss on any occupational functioning and activities of daily living. 3. Thereafter, refer the Veteran's claim for a compensable evaluation for bilateral hearing loss to VA's Director of Compensation Service for extraschedular consideration under 38 C.F.R. § 3.321. 4. After completing all of the above, and any additional development deemed warranted, readjudicate the claims on appeal in light of all the evidence of record, to include evidence added to the claims folder after the November 2020 was issued. If the benefits on appeal remain denied, furnish the Veteran and his representative with a copy of a supplemental statement of the case (SSOC) and allow an appropriate time for response. Thereafter, return the file to the Board for further appellate consideration. Michael A. Pappas Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Little, 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.