Veteranclaims’s Blog

February 1, 2018

Single Judge Application; extraschedular basis for bilateral hearing loss; the rating criteria do not expressly consider hearing loss at 6000 Hz and higher or abnormal acoustic reflexes;

Excerpt from decision below:

“The Court agrees that the Board provided inadequate reasons or bases for its determination that Mr. Zimmerman’s bilateral hearing loss did not warrant an extraschedular evaluation for any evaluation period. The September 2016 Board decision did not mention the veteran’s bilateral
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hearing loss at 6000 Hz and higher or his abnormal acoustic reflexes, R. at 115; 469, or explain whether and how these are contemplated by the rating schedule, see R. at 2-14. The rating criteria for hearing loss do not list any specific symptoms and VA instead evaluates service connection through the mechanical application of the veteran’s audiometric test results, which includes measuring puretone decibel thresholds at 1000 to 4000 Hz, to a rating table. See Doucette v. Shulkin, 28 Vet.App. 366, 368 (2017); 38 C.F.R. 4.85 (2017). Accordingly, the rating criteria do not expressly consider hearing loss at 6000 Hz and higher or abnormal acoustic reflexes.
The Board’s failure to address this in its extraschedular analysis does not allow Mr.
Zimmerman to understand the precise basis for its determination and frustrates judicial review, particularly when the Board found in its October 2014 decision that extraschedular consideration was warranted because significant hearing loss at 6000 Hz and higher was not contemplated by the rating schedule. R. at 132-33; see Thun, 22 Vet.App. at 116 (holding that the Board, in assessing whether to refer a case, must determine whether the schedular evaluation adequately contemplates the claimant’s level of disability and symptoms); Caluza, 7 Vet.App. at 506; Gilbert, 1 Vet.App. at 52. Although the Board is not necessarily bound by its prior findings to refer for extraschedular consideration, the Board must explain why it determined that Mr. Zimmerman’s hearing loss is consistent with the assigned evaluation criteria, R. at 12, when in a prior Board remand in October 2014 it stated that hearing loss at 6000 Hz and higher is not contemplated by the rating schedule and is a factor to be considered at step one of Thun, R. at 132-33; see Gilbert, 1 Vet.App. at 52; see also R. at 302 (May 2014 examiner opining that individuals with high
frequency loss would have more difficulty hearing in deleterious situations, such as multiplespeaker conversations); R. at 344 (veteran stating in August 2013 that he had difficulty with multiple-simultaneous conversations).
Similarly, the September 2016 Board decision did not address the October 2014 Board decision’s finding that extraschedular consideration was warranted because Mr. Zimmerman had asserted that bilateral hearing loss markedly interfered with employment. R. at 132-33; see R. at 9-13. The Board did not explain how the veteran’s evidence regarding how hearing loss impacted his work performance was sufficient to satisfy step two of Thun for referral purposes, but did not constitute marked interference with employment such that extraschedular evaluations were
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warranted. Compare R. at 132-33 (October 2014 Board decision referring the veteran’s claim for extraschedular consideration because, inter alia, he asserted that bilateral hearing loss markedly interfered with employment) with R. at 11-12 (September 2016 Board decision finding that the veteran’s generalized statements were insufficient to establish marked interference with employment).
Because the Board provided inadequate reasons or bases for determining that
extraschedular evaluations for bilateral hearing loss were not warranted during any evaluation period, the Court will remand this matter. See Tucker v. West, 11 Vet.App. 369, 374 (1998)(holding that remand is the appropriate remedy where the Board has incorrectly applied the law, failed to provide an adequate statement of reasons or bases for its determinations, or where the record is otherwise inadequate).

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Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 17-0207
WILLIAM C. ZIMMERMAN, APPELLANT,
V.
DAVID J. SHULKIN, M.D.,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before BARTLEY, Judge.
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a), this action may not be cited as precedent.

BARTLEY, Judge: Veteran William C. Zimmerman appeals through counsel a September 28, 2016, Board of Veterans’ Appeals (Board) decision denying entitlement to a compensable evaluation on an extraschedular basis for bilateral hearing loss prior to July 6, 2011; an evaluation in excess of 20% on an extraschedular basis for bilateral hearing loss as of July 6, 2011; and an
evaluation in excess of 40% for bilateral hearing loss, to include on an extraschedular basis, as of October 6, 2015. Record (R.) at 2-14. Single-judge disposition is appropriate. See Frankel v. Derwinski, 1 Vet.App. 23, 25-26 (1990). This appeal is timely and the Court has jurisdiction to review the Board decision pursuant to 38 U.S.C. §§ 7252(a) and 7266(a). For the reasons that follow, the Court will set aside the September 2016 Board decision and remand the matter for further proceedings consistent with this decision.

I. FACTS
Mr. Zimmerman served on active duty in the U.S. Marine Corps from November 1968 to
August 1971. R. at 730. In October 2005, the veteran filed a claim for service connection for
hearing loss. R. at 734-25. In February 2006, a VA regional office (RO) granted service
connection for right ear hearing loss, assigning a noncompensable evaluation effective October
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2005. R. at 668. In September 2008, the RO granted service connection for left ear hearing loss,
incorporated that condition under bilateral hearing loss, and continued the noncompensable
evaluation for both ears. R. at 629-32. In October 2008, the veteran filed a Notice of Disagreement
as to that decision. R. at 626.
In December 2008, Mr. Zimmerman stated that his bilateral hearing loss negatively
impacted employment. R. at 610-12. He explained that he worked in managerial and technical
roles that required continual oral communication including gathering and evaluating requests
during discussions, attending trainings, and interacting via videoconferencing. R. at 611. He
stated that his inability to hear prevented him from successfully meeting customer requests. Id.
In a July 2009 Statement of the Case (SOC), the RO continued to deny a compensable
evaluation for bilateral hearing loss. R. at 606. In September 2009, Mr. Zimmerman perfected his
appeal, stating that his hearing loss had worsened, particularly during discussions with others at
meetings or business lunches, causing him to not hear conversations or ask speakers to repeat
themselves. R. at 576-78. In March 2010, the veteran indicated that he was no longer employed
and that it was difficult to find a new position because his continually declining hearing prevented
him from successfully interacting with others. R. at 557. During a July 2011 Board hearing, the
veteran testified that as a project manager he had difficulty hearing customer requests, particularly
during meetings. R. at 511, 524-25.
In a November 2011 decision, the Board denied a compensable evaluation for bilateral
hearing loss prior to July 5, 2011, and granted a 20% evaluation for bilateral hearing loss from
July 6, 2011; Mr. Zimmerman appealed that decision. R. at 488, 502; see R. at 377. During a
December 2011 VA examination, the veteran reported difficulty engaging in conversations and
day-to-day work interactions and hearing in noisy environments. R. at 471. The examiner noted
bilateral sensorineural hearing loss in frequency ranges from 500-4000 Hertz (Hz) and 6000 Hz
and higher and abnormal acoustic reflexes in both ears. R. at 469.
In a March 2013 memorandum decision, this Court set aside the November 2011 Board
decision, finding that the Board failed to provide adequate reasons or bases for its determination
that referral for extraschedular evaluation was not warranted and failed to ensure an adequate VA
examination, and remanded the matter. R. at 377, 382. In August 2013, Mr. Zimmerman stated
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that he had been unemployed since 2010 and had sought employment for over a year without
success. R. at 344. He explained how hearing loss resulted in difficulty with background noise,
multiple simultaneous conversations, meetings held in conference rooms, and videoconferencing, particularly when transmission was delayed. Id.
In November 2013, the Board remanded Mr. Zimmerman’s claim for a new VA
examination. R. at 202, 206. A May 2014 VA examiner diagnosed bilateral sensorineural hearing loss in the 500-4000 Hz frequency range. R. at 300-301. The examiner indicated that the veteran’s hearing loss impacted his ability to work, noting that he reported misinterpreting conversations and that he was required to lipread. R. at 301-02. The examiner opined that individuals with high
frequency hearing loss would have more difficulty hearing in deleterious situations, such as multiple-speaker conversations; that the veteran should be able to converse in a quiet, face-to-face setting; and that the veteran does not use hearing aids due to background noise interference. R. at 302.
After further proceedings, in an October 2014 decision the Board remanded Mr.
Zimmerman’s claim for a new VA examination and referred the case to the Director of
Compensation and Pension Service (Director) for extraschedular consideration, “[i]n light of the
[v]eteran’s assertions that bilateral hearing loss disability has markedly interfered with his
employment, and findings of significant hearing loss at 6000 Hertz and 8000 Hertz thresholds that
are not contemplated by the rating schedule.” R. at 132-33.
An October 2015 VA examiner noted bilateral sensorineural hearing loss in frequency
ranges from 500-4000 Hz and 6000 Hz and higher. R. at 115. Mr. Zimmerman reported difficulty
hearing in most situations and that hearing aids did not help. R. at 116. In March 2016, the RO
granted a 40% evaluation for bilateral hearing loss from October 6, 2015. See R. at 94. That same
month, the Director found that the veteran’s difficulty with social interactions, background noise,
and understanding conversations was contemplated in the rating schedule and thus an
extraschedular evaluation was not warranted. R. at 100-101. In a March 2016 Supplemental SOC,
the RO continued to deny increased evaluations on an extraschedular basis for bilateral hearing
loss for all periods. R. at 93.
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In the September 2016 decision on appeal, the Board denied a compensable evaluation on
an extraschedular basis for bilateral hearing loss prior to July 6, 2011; an evaluation in excess of
20% on an extraschedular basis for bilateral hearing loss as of July 6, 2011; and an evaluation in
excess of 40% for bilateral hearing loss, to include on an extraschedular basis, as of October 6, 2015. R. at 14. This appeal followed.

II. ANALYSIS
Mr. Zimmerman argues that the Board provided inadequate reasons or bases for its
determination that his bilateral hearing loss did not warrant an extraschedular evaluation1 and that the Board failed to address his argument regarding the adequacy of the VA examinations.
Appellant’s Brief (Br.) at 5-16. The Secretary disputes the veteran’s arguments and urges the Court to affirm the September 2016 Board decision. Secretary’s Br. at 6-16.
When a claimant or the record raises the issue of extraschedular evaluation, the Board must determine whether to refer the case for extraschedular evaluation. Thun v. Peake, 22 Vet.App. 111, 115 (2008), aff’d sub nom. Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). Consideration of an
extraschedular evaluation involves three steps or elements. Id. First, the RO or Board must determine whether the schedular evaluation adequately contemplates the veteran’s disability picture. Id. “[I]f the [schedular] criteria reasonably describe the claimant’s disability level and symptom[s], then the claimant’s disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required.” Id. “[I]f the
schedular evaluation does not contemplate the claimant’s level of disability and symptom[s] and is found inadequate,” then the second inquiry is “whether the claimant’s exceptional disability picture exhibits other related factors,” id. at 116, such as “marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular
standards,” 38 C.F.R. § 3.321(b)(1) (2017). If the RO or Board determines that the veteran’s disability picture meets these criteria, the third step is to refer the case to the Director to determine
1 Mr. Zimmerman does not specify to which periods his argument pertains, but it appears to be all three periods—October 2005 to July 2011, July 2011 to October 2015, and from October 2015—given that increased evaluations were denied on an extraschedular basis for each period.
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whether an extraschedular evaluation is warranted, “to accord justice.” Thun, 22 Vet.App. at 116; 38 C.F.R. § 3.321(b)(1).
When the Director makes an initial extraschedular evaluation determination that is
implemented by the RO and that determination is appealed, the Board must conduct de novo review of the matter and, if warranted, assign an extraschedular evaluation or increase any previously awarded extraschedular evaluation. Kuppamala v. McDonald, 27 Vet. App. 447, 456–57 (2015); see Wages v. McDonald, 27 Vet.App. 233, 238 (2015); Anderson v. Shinseki, 22 Vet.App. 423, 428 (2009). As with any finding on a material issue of fact and law presented on the record, the Board must support its determination with an adequate statement of reasons or bases
that enables the claimant to understand the precise basis for that determination and facilitates review in this Court. 38 U.S.C. § 7104(d)(1); Gilbert v. Derwinski, 1 Vet.App. 49, 52 (1990). To comply with this requirement, the Board must analyze the credibility and probative value of evidence, account for evidence that it finds persuasive or unpersuasive, and provide reasons for its rejection of material evidence favorable to the claimant. Caluza v. Brown, 7 Vet.App. 498, 506
(1995), aff’d per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table).
Here, in October 2014, the Board referred Mr. Zimmerman’s case to the Director for
extraschedular consideration, “[i]n light of the [v]eteran’s assertions that bilateral hearing loss disability has markedly interfered with his employment, and findings of significant hearing loss at 6000 Hertz and 8000 Hertz thresholds that are not contemplated by the rating schedule.” R. at 132-33. In March 2016, the Director found that an extraschedular evaluation was not warranted and the RO accordingly continued to deny increased evaluations for hearing loss on an extraschedular basis. R. at 93, 100-101. In the September 2016 decision on appeal, the Board concluded that, during all staged evaluation periods, the veteran’s descriptions of hearing loss, including trouble understanding or hearing unless face-to-face with the speaker, were consistent with the assigned evaluation criteria and therefore denied extraschedular evaluations for all periods. R. at 12.
The Court agrees that the Board provided inadequate reasons or bases for its determination that Mr. Zimmerman’s bilateral hearing loss did not warrant an extraschedular evaluation for any evaluation period. The September 2016 Board decision did not mention the veteran’s bilateral
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hearing loss at 6000 Hz and higher or his abnormal acoustic reflexes, R. at 115; 469, or explain whether and how these are contemplated by the rating schedule, see R. at 2-14. The rating criteria for hearing loss do not list any specific symptoms and VA instead evaluates service connection through the mechanical application of the veteran’s audiometric test results, which includes measuring puretone decibel thresholds at 1000 to 4000 Hz, to a rating table. See Doucette v. Shulkin, 28 Vet.App. 366, 368 (2017); 38 C.F.R. 4.85 (2017). Accordingly, the rating criteria do not expressly consider hearing loss at 6000 Hz and higher or abnormal acoustic reflexes.
The Board’s failure to address this in its extraschedular analysis does not allow Mr. Zimmerman to understand the precise basis for its determination and frustrates judicial review, particularly when the Board found in its October 2014 decision that extraschedular consideration was warranted because significant hearing loss at 6000 Hz and higher was not contemplated by the rating schedule. R. at 132-33; see Thun, 22 Vet.App. at 116 (holding that the Board, in assessing whether to refer a case, must determine whether the schedular evaluation adequately contemplates the claimant’s level of disability and symptoms); Caluza, 7 Vet.App. at 506; Gilbert, 1 Vet.App. at 52. Although the Board is not necessarily bound by its prior findings to refer for extraschedular consideration, the Board must explain why it determined that Mr. Zimmerman’s hearing loss is consistent with the assigned evaluation criteria, R. at 12, when in a prior Board remand in October 2014 it stated that hearing loss at 6000 Hz and higher is not contemplated by the rating schedule and is a factor to be considered at step one of Thun, R. at 132-33; see Gilbert, 1 Vet.App. at 52; see also R. at 302 (May 2014 examiner opining that individuals with high frequency loss would have more difficulty hearing in deleterious situations, such as multiplespeaker conversations); R. at 344 (veteran stating in August 2013 that he had difficulty with multiple-simultaneous conversations).
Similarly, the September 2016 Board decision did not address the October 2014 Board decision’s finding that extraschedular consideration was warranted because Mr. Zimmerman had asserted that bilateral hearing loss markedly interfered with employment. R. at 132-33; see R. at 9-13. The Board did not explain how the veteran’s evidence regarding how hearing loss impacted his work performance was sufficient to satisfy step two of Thun for referral purposes, but did not constitute marked interference with employment such that extraschedular evaluations were
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warranted. Compare R. at 132-33 (October 2014 Board decision referring the veteran’s claim for extraschedular consideration because, inter alia, he asserted that bilateral hearing loss markedly interfered with employment) with R. at 11-12 (September 2016 Board decision finding that the veteran’s generalized statements were insufficient to establish marked interference with employment).
Because the Board provided inadequate reasons or bases for determining that
extraschedular evaluations for bilateral hearing loss were not warranted during any evaluation period, the Court will remand this matter. See Tucker v. West, 11 Vet.App. 369, 374 (1998)(holding that remand is the appropriate remedy where the Board has incorrectly applied the law, failed to provide an adequate statement of reasons or bases for its determinations, or where the record is otherwise inadequate). Given this disposition, the Court need not address the veteran’s
argument regarding adequacy of the VA examinations, Appellant’s Br. at 15-16, because the Board, on remand, will necessarily have to reassess the evidence of record, including the adequacy of the March 2014 and October 2015 VA examinations.
Mr. Zimmerman is free on remand to submit additional evidence and argument, including the arguments raised in his briefs to this Court, in accordance with Kutscherousky v. West, 12 Vet.App. 369, 372-73 (1999) (per curiam order), and the Board must consider any such evidence or argument submitted, see Kay v. Principi, 16 Vet.App. 529, 534 (2002). To the extent that the veteran asserts that he did not receive notice that the Board required additional information regarding marked interference with employment, Appellant’s Br. at 14, on remand he should
submit any additional evidence supporting his claim. The Court reminds the Board that “[a] remand is meant to entail a critical examination of the justification for the [Board’s] decision,” Fletcher v. Derwinski, 1 Vet.App. 394, 397 (1991), and must be performed in an expeditious manner in accordance with 38 U.S.C. § 7112.
III. CONCLUSION
Upon consideration of the foregoing, the September 28, 2016, Board decision is SET
ASIDE and the matter is REMANDED to the Board for further proceedings consistent with this
decision.
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DATED: January 30, 2018
Copies to:
Krystle D. Waldron, Esq.
VA General Counsel (027)

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