Citation Nr: 21042497 Decision Date: 07/13/21 Archive Date: 07/13/21 DOCKET NO. 18-39 899 DATE: July 13, 2021 REMANDED Entitlement to a compensable evaluation for bilateral hearing loss prior to February 21, 2019 on a schedular and extraschedular basis is remanded. Entitlement to an increased evaluation in excess of 20 percent for bilateral hearing loss from February 21, 2019 on a schedular and extraschedular basis is remanded. REASONS FOR REMAND The Veteran served on active duty from January 1967 to May 1967, with subsequent service in the Army National Guard through January 1972. This matter is before the Board of Veterans' Appeals (Board) on appeal from a November 2017 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. By way of background, in an August 2019 rating decision, the evaluation for the bilateral hearing loss was increased to 20 percent disabling, effective February 21, 2019. The grant of an increased rating during the course of an appeal does not affect the pendency of that appeal. AB v. Brown, 6 Vet. App. 35 (1993). As the Veteran is presumed to be seeking the maximum allowable benefit and the maximum benefit has not yet been awarded, the claim is still in controversy and on appeal. Id. In May 2021, the Veteran, with his spouse, testified at a virtual hearing before the undersigned Veterans Law Judge (VLJ). A transcript of the testimony is associated with the record. When a Veteran files a claim for an increased rating, he or she is presumed to be seeking the maximum benefit under any applicable theory, including TDIU. See generally Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001); Rice v. Shinseki, 22 Vet. App. 447 (2009). In light of this principle, entitlement to special monthly compensation (SMC) has been found to be an inferable issue anytime a veteran is requesting increased benefits. Akles v. Derwinski, 1 Vet. App. 118 (1991). In this case, the Veteran indicated during his hearing with the undersigned VLJ that he is gainfully employed as a county law enforcement officer. There is no further lay or medical evidence that the Veteran is housebound in fact, requires aid and attendance, or that his disabilities result in loss of use of a limb, blindness or deafness. 38 U.S.C. §§ 1114(s), (l), (k); 38 C.F.R. § 3.350(a), (b), (i). The Board thus finds that TDIU and SMC are not inferred by the record, and as such will not be discussed. 1. Entitlement to a compensable evaluation for bilateral hearing loss prior to February 21, 2019 on a schedular and extraschedular basis is remanded. 2. Entitlement to an increased evaluation in excess of 20 percent for bilateral hearing loss from February 21, 2019 on a schedular and extraschedular basis is remanded. Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity resulting from diseases and injuries encountered as a result of or incident to military service and their residual conditions in civil occupations. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The Veteran is seeking an increased rating for his service-connected bilateral hearing loss, currently rated noncompensable prior to February 21, 2019, and with a 20 percent evaluation from February 21, 2019 forward. The Veteran asserts that his service-connected bilateral hearing loss has worsened. The Veteran last received a valid VA examination for his bilateral hearing loss in February 2019, but the Veteran's May 2021 testimony before the undersigned VLJ indicates the Veteran's level of disability due to his hearing loss may exceed the current VA schedule used in evaluating hearing loss disabilities. The Board finds that two courses of action are necessary to address the Veteran's bilateral hearing loss disability in this remand. First, a new examination is appropriate when there is an assertion (and indication) of an increase in severity since the last examination. Palczewski v. Nicholson, 21 Vet. App. 174, 181 (2007). Also, where the Veteran claims that a disability is worse than when originally rated, VA must provide a new examination. See Olsen v. Principi, 3 Vet. App. 480, 482 (1992), citing Proscelle v. Derwinski, 2 Vet. App. 629, 632 (1992). Thus, a new VA examination is required to ascertain the current degree of the Veteran's hearing loss disability. An examination for hearing impairment for VA purposes must be conducted by a state-licensed audiologist and must include a controlled speech discrimination test (Maryland CNC) and a puretone audiometry test. 38 C.F.R. § 4.85. The Veteran did receive two VA audiograms since the last rating decision on appeal of November 2017. Both a VA audiogram in November 2017 and another in February 2019 show significant worsening of the Veteran's hearing, and the degree of worsening is evident in those two examinations, even though they are only 16 months apart. Secondly, the Veteran's lay statements, the lay statements of his spouse, and their testimony before the undersigned Veterans Law Judge indicate that the degree of disability of the Veteran's hearing loss may present a case of exceptionally or unusual disability, especially as it relates to the Veteran's employment as a law enforcement officer. Ordinarily, the VA Schedule will apply unless there are exceptional or unusual factors, which would render application of the schedule impractical. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993). While the Ratings Schedule is designed to be robust and adaptive, there will be occasions where the ratings provisions do not adequately describe and compensate a particular disability. When determining whether a claimant is entitled to an extraschedular rating, the Board must determine whether the evidence "presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate." Thun v. Peake, 22 Vet. App. 111, 115 (2008), aff'd sub nom. Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009); see 38 C.F.R. § 3.321(b)(1). An extraschedular rating under 38 C.F.R. § 3.321(b)(1) is based on the fact that the schedular ratings are inadequate to compensate for the average impairment of earning capacity due to the Veteran's disability. Exceptional or unusual circumstances, such as frequent hospitalizations or marked interference with employment, are required. According to the regulation, an extraschedular disability rating is warranted based upon a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that would render impractical the application of the regular schedular standards. See 38 C.F.R. § 3.321(b)(1). An exceptional case is said to include such factors as marked interference with employment or frequent periods of hospitalization as to render impracticable the application of the regular schedular standards. See Fanning v. Brown, 4 Vet. App. 225, 229 (1993). Under Thun v. Peake, 22 Vet. App. 111 (2008), there is a three-step inquiry for determining whether a veteran is entitled to an extraschedular rating. First, the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Second, if the schedular evaluation does not contemplate the Veteran's level of disability and symptomatology and is found inadequate, the Board must determine whether the Veteran's disability picture exhibits other related factors such as those provided by the regulation as "governing norms." Third, if the rating schedule is inadequate to evaluate a Veteran's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Director, Compensation Service to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extraschedular rating. Here, the Board finds here, at a preliminary stage, that the evidence of the Veteran's hearing loss presents an exceptional disability picture. The Veteran testified at his Board hearing before the undersigned Veterans Law Judge in May 2021 that his hearing disability was having a profound effect on his ability to perform his duties as a county law enforcement officer. The Board finds the Veteran's May 2021 testimony highly probative in that his hearing loss disability indicates marked interference with employment, in this case, the Veteran's employment as a county law enforcement officer. Thus, referral for extraschedular consideration on this basis is warranted. To accord justice in the exceptional case where the criteria in VA's Rating Schedule are inadequate to rate a single service-connected disability, the Director of Compensation Service or his or her delegate is authorized to approve an extraschedular evaluation commensurate with the average impairment of earning capacity due exclusively to the disability. The governing norm in these exceptional cases is a finding by the Director of Compensation Service or delegate that application of the regular schedular standards is impractical because the disability is so exceptional or unusual due to such related factors as marked interference with employment or frequent periods of hospitalization. 38 C.F.R. § 3.321(b)(1). The Board must refer the Veteran's claims to the Under Secretary for Benefits or Director of Compensation Service for this special consideration when the issue is raised either by the Veteran or by the evidence of record. See Thun v. Peake, 22 Vet. App. 111, 115 (2008); Barringer v. Peake, 22 Vet. App. 242 (2008). Only after the Director has determined whether an extraschedular evaluation is warranted does the Board have jurisdiction to adjudicate the merits of the extraschedular aspect of the claims. Here, the Board finds that the evidence of record has raised the necessity for special consideration of this issue of bilateral hearing loss. As such, the Board remands for a new VA examination to examine the nature and severity of the Veteran's bilateral hearing loss, and then for a referral to the Director of Compensation Service for an opinion regarding extraschedular consideration of the Veteran's claim for increased ratings for his bilateral hearing loss. The matters are REMANDED for the following action: 1. Make appropriate efforts to obtain and associate with the claims file any updated VA medical records of the Veteran not previously obtained. Contact the Veteran and request that he identify any pertinent private treatment records not already identified and obtained and, with the appropriate authorization, attempt to obtain those records and associate them with the claims file. 2. Schedule the Veteran for an audiological examination to determine the nature and severity of his service-connected bilateral hearing loss disability. It is imperative that the claims file be made available to the examiner for review in connection with the examination. The examiner should note that the claims file has been reviewed. All indicated tests and studies should be performed and all clinical and special test findings should be reported in detail to allow for evaluation under applicable VA rating criteria. For each ear, the examiner is asked to specifically record the decibel loss at the 1000, 2000, 3000, and 4000 Hz frequencies, and should provide results of a Maryland CNC word recognition test. The examiner should also address any functional impairment resulting from the Veteran's hearing loss and its effects on his ordinary activities. After the above VA examination for the hearing loss is complete, refer the issue of entitlement to an extraschedular increased rating for the Veteran's bilateral hearing loss to the Director, Compensation Service, for adjudication in accordance with 38 C.F.R. § 3.321(b). 3. Thereafter, readjudicate the issues on appeal as noted above. If the determination remains unfavorable to the Veteran, he and his representative should be furnished a supplemental statement of the case (SSOC) which addresses all evidence associated with the claims file since the last statement of the case. The Veteran and his representative should be afforded the applicable time period to respond. MICHAEL A. PAPPAS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Setter, 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.