Citation Nr: 18132362
Decision Date: 09/06/18	Archive Date: 09/06/18

DOCKET NO. 11-08 906A
DATE:	September 6, 2018
REMANDED
Entitlement to a compensable, initial disability rating for bilateral hearing loss, from December 18, 1989, and a rating in excess of 20 percent from December 16, 2014, on an extraschedular basis.  
REASONS FOR REMAND
The Veteran served on ative duty from June 1964 to June 1967.
In January 2016, the Veteran testified at a hearing before the undersigned Veterans Law Judge.
In a September 2016 decision, the Board denied an increased rating for bilateral hearing loss (and remanded a claim for service connection for pes planus and a claim for an earlier effective date).  The Veteran appealed the denial to the United States Court of Appeals for Veterans Claims (CAVC), which resulted in a January 2018 CAVC memorandum decision.  The Veteran did not challenge the Board’s decision to deny him entitlement to an increased, schedular disability rating for his hearing loss.  Therefore, an increased rating on a schedular basis is not part of the current claim.  The CAVC did vacate the Board’s conclusion that the hearing loss claim should not be referred for extraschedular consideration and remanded it for further proceedings consistent with the decision.
1. Entitlement to a compensable, initial disability rating for bilateral hearing loss prior to December 16, 2014 and in excess of 20 percent thereafter, on an extraschedular basis.  
The Veteran has reported that he has experienced dizziness, headaches, nausea, and other similar symptoms that are related to his hearing loss, but are not contemplated by the schedular rating criteria.  
Additionally, a September 2006 VA examiner found that “symptoms of tinnitus, reduced hearing and intermittent dizziness... are suggestive of (because of their temporal relation to the previous concussion) vestibular and cochlear damage secondary to acoustic trauma.”  However, the examiner reported he would “defer this evaluation to ENT/audiology…does not have any other clinically identifiable neurologic residuals.”
Per the January 2018 CAVC decision, remand is warranted since VA has not investigated the connection between dizziness and hearing loss to consider whether additional symptoms are unusual manifestations of the hearing loss disability.
The CAVC also found that in January 2016 the Veteran had argued that an auditory processing disorder caused him to hear “better in the sound booth” during audiometric testing than “when I step out [into] the world.” Consequently, he seemed to assert that audiometric testing does not provide a reliable estimation of the effects for him.  This additional theory of entitlement is referred for extraschedular consideration. 
The Board cannot assign an extraschedular rating in the first instance; rather, a remand for referral to the Under Secretary for Benefits or Director of Compensation Service (Director) is necessary.  38 C.F.R. § 3.321 (b)(1).  However, that does not preclude the Board from considering whether referral to the appropriate officials is required.  Floyd v. Brown, 9 Vet. App. 88 (1996).  In light of the symptoms that the Veteran reported in the September 2006 VA examinations, as well as the January 2018 Court decision, the Board finds that referral is warranted in this case.
Thus, the claim for an increased rating for bilateral hearing loss must be referred to the Director for consideration of an extraschedular rating.  See Thun v. Peake, 22 Vet. App. 111, 115-16 (2008), aff’d, 572 F.3d 1366 (Fed. Cir. 2009); Anderson v. Shinseki, 22 Vet. App. 423, 427 (2009) (outlining the “elements that must be established before an extraschedular rating can be awarded”); 38 C.F.R. § 3.321 (b)(1).
The matter is REMANDED for the following actions:
1.  Schedule the Veteran for an examination by an appropriate clinician to determine whether the Veteran has any clinically identifiable symptoms, to include possibly include claims of dizziness, headaches, nausea, or an auditory processing disorder due to his service-connected bilateral hearing loss.  
If such symptoms are determined to exist and are part of the bilateral hearing loss, the examiner should provide a full description of the disabilities and report all signs and symptoms necessary for evaluating the Veteran’s disabilities under appropriate rating criteria (if applicable).  
The underlying medical reasons for the opinion must be included.  The VA medical opinion provider should discuss the particulars of this Veteran’s medical history and relevant medical science as applicable to this case, which may reasonably explain the medical guidance in the study of this case.  The examiner should specifically consider the September 2006 VA examination findings and January 2016 statement and evidence from the Veteran.
2.  Refer the claim to the Director of VA’s Compensation Service for consideration of an extraschedular rating.  The Director should determine if the Veteran’s service-connected bilateral hearing loss warrants the assignment of an extraschedular rating at any point during the period of appeal.
3.  Readjudicate the appeal, to include the still pending development on service connection for pes planus, as directed in the Board’s September 2016 remand.

 
BETHANY L. BUCK
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	A. Lindio

For A Complete Guide To VA Disability Claims and to find out more about your potential VA disability case and how to obtain favorable VA Rating Decision! Visit: VA-Claims.org

For More Information on Veterans Disability Compensation Benefits! Visit: DisableVeteran.org ~ A Non-Profit Non Governmental Agency


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