Thomas J. Grimes v. Denis McDonough

UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS

No. 18-1017

THOMAS J. GRIMES, APPELLANT,

V.

DENIS MCDONOUGH,

SECRETARY OF VETERANS AFFAIRS, APPELLEE.

On Appeal from the Board of Veterans' Appeals

(Decided April 28, 2021)

Glenn R. Bergmann, of Bethesda, Maryland, for appellant.

James M. Byrne, General Counsel; Mary Ann Flynn, Chief Counsel; James B. Cowden,

Deputy Chief Counsel; and Joshua L. Wolinsky, all of Washington, D.C., were on the brief for

appellee.

Before BARTLEY, Chief Judge, and PIETSCH and JAQUITH, Judges.

BARTLEY, Chief Judge: Veteran Thomas J. Grimes appeals through counsel a December

18, 2017, Board of Veterans' Appeals (Board) decision (1) denying entitlement to an initial

compensable disability evaluation for bilateral hearing loss; (2) remanding a claim for service

connection for a sinus disability; and (3) referring to a VA regional office (RO) for initial

development and adjudication a claim for service connection for hyperacusis.1 Record (R.) at 2-

10.2 This appeal, over which the Court has jurisdiction pursuant to 38 U.S.C. §§ 7252(a) and

7266(a), was referred to a panel of the Court to address the interplay between VA's obligation

under Clemons v. Shinseki, 23 Vet.App. 1 (2009), to broadly construe a claim consistent with a lay

claimant's reasonable expectations and the general rule of Ephraim v. Brown, 82 F.3d 399 (Fed.

Cir. 1996), vacating 5 Vet.App. 549 (1993), and Boggs v. Peake, 520 F.3d 1330 (Fed. Cir. 2008),

1

"Hyperacusis" is "[a]bnormal or painful sensitiveness to noise." 1 J.E. SCHMIDT, ATTORNEYS ' DICTIONARY

OF M EDICINE & WORD FINDER H-224 (2019).

2

Because the sinus disability and hyperacusis claims were remanded and referred, respectively, the Court

lacks jurisdiction to review the merits of those claims at this time. See Howard v. Gober, 220 F.3d 1341, 1344 (Fed.

Cir. 2000); Breeden v. Principi, 17 Vet.App. 475, 478 (2004) (per curiam order); Link v. West, 12 Vet.App. 39, 47

(1998); 38 C.F.R. § 20.1100(b) (2020). The Court, however, does have jurisdiction to consider those claims for the

limited purpose of determining whether referral of the hyperacusis claim was appropriate. See Young v. Shinseki,

25 Vet.App. 201, 202-03 (2012) (en banc order).

that separately diagnosed conditions with distinct factual bases should ordinarily be treated as

separate claims. We hold that these authorities are complementary and that, pursuant to Clemons,

a claim for service connection may encompass a related condition that is initially referenced by

the claimant but not diagnosed until later in the appeal stream, regardless of whether the claim is

initially granted or denied by the RO. Accordingly, and for the reasons that follow, the Court will

set aside the portion of the December 2017 Board decision denying entitlement to an initial

compensable evaluation for bilateral hearing loss and remand that matter for further development,

if necessary, and readjudication consistent with this decision. The Court will also modify the

December 2017 Board decision to strike the Board's referral of service connection for hyperacusis

and remand for the Board to adjudicate, in the first instance, entitlement to compensation for

hyperacusis, as part of either the hearing loss or sinus disability claim over which it had

jurisdiction.

I. FACTS

Mr. Grimes served on active duty in the U.S. Air Force from May 1966 to May 1970. R.

at 996. In July 2011, he filed a claim for service connection for "loss of hearing, ear aches, sinus

pressure, tinnitus." R. at 822. The next month, he submitted a statement in support of claim (SSC)

describing in-service exposure to jet engine noise with minimal hearing protection. R. at 789. He

also asserted that his "jaw and sinus and hearing [were] never the same" after an in -service wisdom

tooth extraction where a military dentist hammered and broke one of his teeth with a chisel. Id.;

see R. at 726-27 (April 2012 SSC reiterating those contentions).

In April 2012, Mr. Grimes underwent a VA audiology examination. R. at 737 -43. When

asked to describe the functional impact of his hearing loss, the veteran stated: "I seem to have to

turn things up more. Everyone wants to know why it's so loud. I really have to pay attention if

someone is talking. I have to press the phone close to my ear for me to hear it." R. at 741. He

also reported that his tinnitus disturbed sleep patterns and interfered with daily activities. R. at

743.

In October 2012, the RO contacted Mr. Grimes to clarify the scope of his claims. R. at

708. The report of contact reflects that the veteran "stated the only contentions he wants considered

are: hearing loss, tinnitus, and aches, sinus pressure. He did not want any other conditions

added. . . ." Id. That same day, the RO issued a rating decision granting service connection for

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bilateral hearing loss and tinnitus and assigning noncompensable and 10% evaluations for those

conditions, respectively. R. at 715-18. Although the rating decision did not discuss any other

claim, the attached code sheet indicated that "[s]ervice connection for aches, sinus [was] denied,"

R. at 715, and the cover letter to the decision stated that "service connection couldn’t be granted"

for aches, sinus pressure, R. at 701.

Mr. Grimes filed a Notice of Disagreement (NOD) as to that decision the next month,

arguing that his claims were "incomplete" or "not properly expressed." R. at 690. He described

sinus pressure and ear pain since service and asserted that he was entitled to service connection for

"sinus pressure/ear pressure blockage/and headaches" related to his duties as an aircraft mechanic

and the in-service dental surgery. R. at 690-91.

In June 2013, an RO employee completed a Report of General Information that outlined

the procedural history of the veteran's claims. R. at 682. According to that Report, Mr. Grimes

filed a claim for hearing loss, ear aches, tinnitus, and a sinus condition in July 2011; he raised an

"unclear claim of wisdom teeth jaw condition and sinus and tinnitus" in September 2012; he

clarified that his claims included only service connection for hearing loss, tinnitus, and aches/sinus

pressure in October 2012; the RO denied service connection for aches and sinus pressure that same

month; and he filed a "new claim for headaches and ear aches and ear blockage as secondary to

non-service[-]connected aches, sinus pressure due to wisdom teeth removal in service" in

November 2012. Id. The Report directed the RO to open a new claim for secondary service

connection for headaches, ear aches, and ear blockage and to send the veteran a clarification letter

"letting him know the only condition currently on appeal is service connection for aches, sinus

pressure." Id.

In September 2013, the RO issued a Statement of the Case (SOC) continuing the

noncompensable evaluation for bilateral hearing loss and the denial of service connection for

aches, sinus pressure. R. at 651-73. Later that month, Mr. Grimes filed a Substantive Appeal of

those claims, once again asserting that he suffered from "pain and disability from [his] service in

the military," particularly the in-service dental surgery and exposure to jet-engine noise. R. at 632-

33. He also submitted a separate SSC that same day explaining that the military surgeon who

extracted his wisdom teeth struck one of his teeth with a hammer and chisel 30 times, ultimately

driving it "up into [the] sinus area" before it broke in half. R. at 639. The veteran once again

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attributed his "sinus pressure blocks[,] headaches, and [] bad hearing" to that incident and in-

service noise exposure. R. at 638.

In October 2013, the RO issued a rating decision denying service connection for ear

aches/blockage and headaches. R. at 559-63. The record does not reflect that the veteran took any

action with respect to that decision.

More than one year later, in December 2015, Mr. Grimes submitted another application for

service connection for tinnitus, hearing loss, and residuals of an ear cyst, along with an SSC

reiterating his in-service acoustic trauma. R. at 525-37. He also stated that hearing loss caused

difficulty communicating with his children, prevented him from hearing the television unless it

was turned up very loud, and "impact[ed his] social life." R. at 525. At a January 2016 VA

audiology examination, the veteran reported that his hearing loss caused difficulty communicating

and his tinnitus was a distraction. R. at 456, 458.

The RO issued a rating decision in February 2016 continuing to deny higher evaluations

for hearing loss and tinnitus and denying service connection for residuals of an ear cyst. R. at 444-

48.

The next month, the veteran submitted an SSC asserting that his hearing loss had worsened.

R. at 422. He explained that a private physician had recently diagnosed him with hyperacusis,

"meaning hearing trouble and pain in noisy areas" and that "[b]ackground noise is greatly

amplified to where [he] cannot hear properly and sometimes not at all." Id. He attached to the

SSC (1) a VA audiology record reflecting complaints of hypersensitivity to lou d noises and

indicating that the audiologist had counseled him on how tinnitus and hyperacusis are "symptoms

associated with a damaged auditory system," R. at 410; (2) an internet article about hyperacusis,

which contained underlined passages noting that hyperacusis "can often lead to pain and

discomfort," impede daily functioning, and cause depression, R. at 415; and (3) a typed letter

alleging that VA had misdiagnosed his hearing problems and that his hyperacusis caused him to

remove himself from noisy areas, R. at 395. Mr. Grimes underwent another VA audiology

examination in April 2016, at which time he reported functional impairment including difficulty

watching television, ear pain, and low tolerance to loud sounds. R. at 145 -46.

In June 2016, the RO issued a rating decision continuing the noncompensable evaluation

for bilateral hearing loss. R. at 108-12. The veteran challenged that decision in August 2016,

asserting that he has hyperacusis, "a condition characterized by an increased sensitivity to certain

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frequency and volume ranges of sound that is related to exposure to loud acoustic trauma." R. at

79.

Mr. Grimes was afforded a Board hearing in October 2016. R. at 36-64. At the outset of

the hearing, the presiding Board member stated that the issues on appeal included entitlement to

an increased evaluation for bilateral hearing loss and service connection for a sinus disability. R.

at 37. The veteran's then-representative explained that Mr. Grimes's hyperacusis resulted in pain

and discomfort from everyday noises like car engines, running faucets, humming refrigerators, and

raking leaves. R. at 40. The Board member asked if the veteran was trying to get the pain from

hyperacusis compensated as part of the instant appeal and the representa tive responded that he

was. R. at 41-42. The Board member noted that it did not appear that VA had addressed

hyperacusis yet, R. at 44, and that further development might be necessary to better understand its

relationship, if any, to his hearing loss, tinnitus, and service, R. at 46, 50-52. Following the

hearing, in July 2017, Mr. Grimes submitted a VA physician's opinion that the veteran's hearing

loss was caused by in-service exposure to jet engine noise and that "his tinnitus and hyperacusis

are the results or side effects of this damage." R. at 22.

In December 2017, the Board issued the decision currently on appeal, which denied a

compensable evaluation for bilateral hearing loss; remanded for further development a claim for a

sinus disability characterized by sinus pressure, headaches, earaches, and ear blockage related to

in-service dental trauma and/or removal of an ear cyst; and referred for initial development and

adjudication a claim for service connection for hyperacusis. R. at 2-10. This appeal followed.

II. GOVERNING LAW & STANDARD OF REVIEW

The primary issue in this case is whether the veteran's July 2011 claims and ensuing appeals

included entitlement to disability compensation for hyperacusis. As relevant here, VA has a duty

to "give a sympathetic reading to the veteran's filings by 'determin[ing] all potential claims raised

by the evidence, applying all relevant laws and regulations.'" Szemraj v. Principi, 357 F.3d 1370,

1373 (Fed. Cir. 2004) (alteration in original) (citing Roberson v. Principi, 251 F.3d 1378, 1384

(Fed. Cir. 2001)). This includes "investigat[ing] the reasonably apparent and potential causes of

the veteran's condition and theories of service connection that are reasonably raised by the record

or raised by a sympathetic reading of the claimant's filing." DeLisio v. Shinseki, 25 Vet.App. 45,

53 (2011); see Ephraim, 5 Vet.App. at 553 (Steinberg, J., dissenting) (stating that VA is "required

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to consider the veteran's entitlement, on any basis consistent with the claim, to any benefit which

could flow from a determination of service connection and to which entitlement is reasonably

raised on the record").

Generally, "when a veteran has two diagnoses with separate factual bases, these diagnoses

should be treated as two separate claims." Murphy v. Wilkie, 983 F.3d 1313, 1318 (Fed. Cir. 2020)

(citing Boggs, 520 F.3d at 1336; see Ephraim, 82 F.3d at 401-02). However, a claim for service

connection may be expanded beyond a veteran's lay description of a disability to include any

disability "that may reasonably be encompassed by several factors including: the claimant's

description of the claim; the symptoms the claimant describes; and the information the claimant

submits or that the Secretary obtains in support of the claim." Clemons, 23 Vet.App. at 5. "[T]he

claimant's intent in filing a claim is paramount to construing its bread th." Id. To effectuate that

intent, "VA shall afford lenity to a veteran's filings that fail to enumerate precisely the disabilities

included within the bounds of a claim," which "is best accomplished by looking to the veteran's

reasonable expectations in filing the claim and the evidence develop ed in processing that claim."

Murphy, 983 F.3d at 1318. "[T]he fact that the [claimant] may be wrong about the nature of his

[or her] condition does not relieve the Secretary of his duty to properly adjudicate the claim."

Clemons, 23 Vet.App. at 6.

The Court has jurisdiction to review the Board's jurisdictional determinations, Skaar v.

Wilkie, 33 Vet.App. 127, 132 (2020), including whether it was appropriate for the Board to refer

"another part (or condition) or theory in support of [a denied] claim" over which the Court

otherwise has jurisdiction, Young, 25 Vet.App. at 202. Although "the Court exercises de novo

review over Board determinations that are critical to its jurisdiction ," Evans v. Shinseki,

25 Vet.App. 7, 10 (2011). the Court reviews the Board's factual findings regarding the scope of a

claim for clear error, Criswell v. Nicholson, 20 Vet.App. 501, 504 (2006). "A factual finding 'is

"clearly erroneous" when although there is evidence to support it, the reviewing court on the entire

evidence is left with the definite and firm conviction that a mistake has been committed.'" Hersey

v. Derwinski, 2 Vet.App. 91, 94 (1992) (quoting United States v. U.S. Gypsum Co., 333 U.S. 364,

395 (1948)).

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III. ANALYSIS

Mr. Grimes first argues that the Board erred in referring, rather than adjudicating or

remanding, the issue of entitlement to disability compensation for hyperacusis. Specifically, he

asserts that his July 2011 claims for service connection were broad enough to encompass

hyperacusis, as he described hearing problems and ear pain that he attributed to in-service acoustic

trauma or dental surgery, and that his appeal of the October 2012 rating decision encompassed

compensation for hyperacusis, even though he did not know the precise me dical name for that

condition at those times. He argues that the RO erred in narrowing his appeal to exclude

compensation for hyperacusis in violation of the sympathetic claim-construction principles

outlined in Clemons, and that the Board in turn erred in finding that it did not have jurisdiction

over that issue in the instant appeal. Appellant's Brief (Br.) at 12-15; Reply Br. at 1-7.

The Secretary disputes these contentions and urges the Court to affirm the Board's referral

because it properly determined that the veteran's request for service connection for hyperacusis

was jurisdictionally separate from the bilateral hearing loss and sinus disability claims that were

on appeal. In support of this position, the Secretary points out that the veteran was not diagnosed

with hyperacusis and did not notify VA of this diagnosis until 2016, well after he filed the original

claims in July 2011 and the jurisdiction-conferring NOD in November 2012. He therefore asserts

that, rather than Clemons, the appeal is controlled by Ephraim and Boggs, which he describes as

establishing a rule that separate diagnoses represent separate claims. Secretary's Br. at 12-20.

The Court agrees with Mr. Grimes that the Board erred in treating his request for

compensation for hyperacusis as a jurisdictionally separate matter from his appealed bilateral

hearing loss and sinus disability claims. When viewed sympathetically, the veteran's filings and

actions since July 2011 regarding his hearing problems and "ear aches" related to in-service noise

exposure and dental surgery reflect his intent to seek compensation for hyperacusis both as part of

his original claims for service connection and the ensuing appeal of those claims.

To wit, Mr. Grimes specified in his July 2011 application for VA benefits that he was

seeking disability compensation for "ear aches," as well as hearing loss, sinus pressure, and

tinnitus, R. at 822, and he asserted in his August 2011 SSC that he believed that those disabilities

were related to either in-service noise exposure or dental surgery, R. at 789. When the RO

contacted him in October 2012 to clarify the scope of his claims, he again stated that he was

seeking compensation for hearing problems, "aches," and sinus pressure. R. at 708. In November

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2012, one month after the RO granted service connection for bilateral hearing loss and tinnitus and

denied service connection for "aches, sinus," R. at 715, the veteran filed an NOD arguing that the

claims addressed by the RO were "incomplete" or "not properly expressed" and that he was entitled

to additional compensation for sinus and ear problems related to his duties as an aircraft mechanic

or the botched dental surgery in service, R. at 690-91. Following the September 2013 SOC

continuing the prior hearing loss evaluation and denial of service connection for "aches, sinus

pressure," Mr. Grimes filed (1) a Substantive Appeal reiterating that he continued to experience

"pain and disability from [his] service in the military," particularly the in-service dental surgery

and exposure to jet-engine noise, R. at 632-33; and (2) an SSC that attributed his sinus and hearing

problems to those incidents, R. at 638. Then, in March 2016, while his appeal was pending before

the Board, the veteran told VA that he had recently been diagnosed with hyperacusis, and he

submitted evidence explaining that hyperacusis was "associated with a damaged auditory system"

and describing how the condition can cause pain and functional impairment. R. at 395, 410, 415,

422. The veteran argued that VA had misdiagnosed his hearing loss problems all along. R. at 395.

And in subsequent communications with VA regarding his service-connected bilateral hearing

loss, the veteran asserted that hyperacusis was "related to exposure to loud acoustic trauma" like

jet engine noise, R. at 79, and testified that hyperacusis caused pain and discomfort from everyday

noises, R. at 40.

When the foregoing filings and actions are sympathetically read in light o f his later

diagnosis of hyperacusis (i.e., painful, hypersensitive hearing), it is apparent that Mr. Grimes

intended for his original claims to encompass hyperacusis, that he timely and consistently

disagreed with VA's narrow construction of his claims and treatment of "ear aches" as a separate

condition unrelated to his service-connected hearing problems, and that he intended his appeal to

the Board to include entitlement to compensation for hyperacusis, either as part of the properly

challenged evaluation for bilateral hearing loss or denial of service connection for "aches, sinus

disability." See Murphy, 983 F.3d at 1318; Clemons, 23 Vet.App. at 5 (holding that VA "should

construe a claim based on the reasonable expectations of the non-expert, self-represented claimant

and the evidence developed in processing that claim"). Like the veteran in Clemons, Mr. Grimes

"did not file a claim to receive benefits only for a particular diagnosis, but for the affliction his . . .

condition . . . causes him"—in this case, hearing problems that included hyperacusis. 23 Vet.App.

at 5. Consequently, the Court concludes that the Board clearly erred in finding that Mr. Grimes's

8

initial claims and ensuing appeals did not encompass the issue of entitlement to compensation for

hyperacusis. See Criswell, 20 Vet.App. at 504. And because that issue was properly before the

Board in the decision currently on appeal, the Court also concludes that the Board erred in

referring, rather than adjudicating or remanding, entitlement to compensation for hyperacusis. See

Young, 25 Vet.App. at 203 (holding that "referral of a matter is appropriate only when the Board

lacks jurisdiction over the matter being referred" (citing Godfrey v. Brown, 7 Vet.App. 398, 410

(1995))).

Contrary to the Secretary's contentions, Secretary's Br. at 12-20, neither the RO's narrow

reading of the November 2012 NOD that led to administrative bifurcation of the claim nor the

veteran's subsequent diagnosis of hyperacusis compels a different result. Regarding the NOD,

although the RO construed part of that filing as a "new claim for headaches and ear aches and ear

blockage as secondary to non-service[-]connected aches, sinus pressure due to wisdom teeth

removal in service," R. at 682, the RO was not permitted to narrow or limit the scope of the

veteran's hyperacusis appeal through bifurcation in that manner. Once Mr. Grimes initiated an

appeal that included entitlement to compensation for hyp eracusis, the RO was prohibited from

extinguishing that portion of the appeal by reclassifying it as a new claim and then denying it. See

Collaro v. West, 136 F.3d 1304, 1309 (Fed. Cir. 1998) (explaining that, after a claimant files a

broad NOD, he or she may "cut the rough stone of [the] NOD" to reveal the "radix of [the] issue

that lay within," and VA may not foreclose an issue by characterizing it differently); AB v. Brown,

6 Vet.App. 35, 39 (1993) (holding that, when an NOD expresses general disagreement with a

decision and does not explicitly narrow the scope of an appeal, the RO and the Board are "required

to construe the appeal as an appeal for the maximum benefit allowed by law and regulation").

Rather, the RO was required to process the appealed issues, and any adverse RO decision

stemming from the "new claim" for ear aches did not disrupt or otherwise supersede the pending

appeal. See Jones v. Shinseki, 23 Vet.App. 122, 125 (2009) (holding that, "where [a] claim was

placed into appellate status by virtue of an NOD, subsequent RO decisions cannot resolve the

pending claim"), aff'd, 619 F.3d 1368 (Fed. Cir. 2010).

This is especially true where, as here, the veteran perfected his appeal to the Board before

the RO issued its adverse decision on the "new claim." Because Mr. Grimes's bilateral hearing

loss and sinus disability claims, including entitlement to compensation for hyperacusis, were

perfected to the Board in September 2013, the RO's October 2013 decision could not have resolved

9

his hyperacusis appeal. See Bailey v. Wilkie, 33 Vet.App. 188, 204 (2021) (explaining that, when

two related claims are proceeding before VA simultaneously—one before the RO and one before

the Board—an RO decision does "not divest the Board of jurisdiction over the veteran's initial

appeal"); Warren v. McDonald, 28 Vet.App. 214, 221 (2016) ("The decision of the lower

adjudicative body, the RO, cannot finally decide an issue already on appeal to the Board, the higher

administrative appellate body."). Thus, contrary to the Secretary's contention, Secretary's Br. at

17-18, the intervening RO denial of service connection for ear aches/blockage and headaches in

October 2013 and the veteran's failure to appeal that decision does not affect the scope of the

claims he filed in July 2011 or the appeal he initiated in November 2012 and perfected in

September 2013.

Nor does the timing of the hyperacusis diagnosis affect the scope of the claim in the manner

that the Secretary argues. Although he contends that VA did not err in treating the veteran's

claimed ear aches as distinct from hyperacusis because he was not diagnosed with hyperacusis

until after he filed the original claims and subsequent appeal, Secretary's Br. at 13 -14 (citing

Ephraim, 82 F.3d at 401-02), 16-17 (citing Boggs, 520 F.3d at 1336), the Court in Clemons

addressed precisely this issue and clarified that, when a veteran seeks benefits for a specific

condition and is then diagnosed with a different but potentially related condition while the claim

is being processed, VA may not reflexively treat the different conditions as separate claims.

23 Vet.App. at 6; see id. at 4 (noting that "multiple medical diagnoses or diagnoses that differ from

the claimed condition do not necessarily represent wholly separate claims").

In so holding, the Court in Clemons distinguished the facts of that case from those in

Ephraim and Boggs—the cases that the Secretary now relies on to support his argument here—on

the ground that Ephraim and Boggs involved new diagnoses made after final denials of prior claims

for related conditions. Regarding Boggs, the Court stated:

Boggs stands for the proposition that, if there is a final agency decision denying a

claim based on a particular diagnosis, and subsequently a new and different

diagnosis is submitted for VA's consideration, the second diagnosis must be

considered factually distinct from the first and must be considered to relate to a

separate claim.

Id. at 8. The Court explained that "Boggs did not state a general rule that each new diagnosis

presented prior to a final agency decision pertains to an entirely separate claim" because such a

rule "would actually work to a veteran's disadvantage" by "forc[ing] a veteran to continually file

new claims as medical evidence is developed during his initial claim"; requiring VA "to process

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additional claims with proper notice and procedural requirements, lengthening and delaying an

already arduous process"; and "potentially . . . requir[ing] a veteran to accept a later effective date

for diagnoses made later in the process." Id. The Court therefore concluded that, "by its own

terms and rationale, Boggs is not applicable to, and does not inform us how to determine, the scope

of a claim at the time the claim is filed." Id. at 7; see Murphy, 983 F.3d at 1318 (noting that, "while

both Boggs and Clemons speak to claim scope," they "do not address the same inquiries"). The

Court then distinguished Ephraim on the same basis, stating that, "[a]s with Boggs, in Ephraim

there was a prior, final decision on one diagnosis based on competent medical evidence that

justified separating the new diagnosis into a separate claim." Clemons, 23 Vet.App. at 9.

That distinction applies with equal force to this appeal. Because Mr. Grimes was diagnosed

with hyperacusis during the processing of his original bilateral hearing loss and sinus disability

claims, before any final decision was rendered on either claim, Ephraim and Boggs do not control;

instead, Clemons obligated VA to sympathetically construe his original claims and appeal to

include any issue reasonably encompassed therein. See 23 Vet.App. at 5-6; see also Murphy,

983 F.3d at 1320 (explaining that, to comply with the Clemons lenient-claim-scope rule, "VA must

look to all possible diseases or injuries for which the veteran could have reasonably expected to

have included in the filing"). As discussed above, such a sympathetic reading includes the issue

of entitlement to compensation for hyperacusis.

In sum, although VA construed Mr. Grimes's references to hearing difficulties and "ear

aches" related to in-service noise exposure and dental surgery as distinct from hyperacusis, the

veteran has always considered those problems to be part of the same "constellation of ear

problems" for which he has been seeking compensation since July 2011. Appellant's Br. at 12-13.

Per Clemons, a review of the veteran's filings and actions since that time, as well as the evidence

submitted and developed throughout the appeal, reveals his intent to pursue benefits for

hyperacusis as part of his bilateral hearing loss and sinus disability claims and appeal. Because

entitlement to compensation for hyperacusis was part of either the properly appealed bilateral

hearing loss or sinus disability claim over which the Board had jurisdiction, the Board erred in

referring the hyperacusis issue to the RO. See Young, 25 Vet.App. at 203. Accordingly, the Court

will modify the Board decision to strike that referral and remand the issue to the Board for

adjudication in the first instance. See 38 U.S.C. § 7252 (empowering this Court to modify a Board

11

decision "as appropriate"); Boyd v. McDonald, 27 Vet.App. 63, 78-79 (2014) (exercising the

authority to modify a Board decision).

That leaves Mr. Grimes's remaining arguments regarding the Board's denial of an initial

compensable evaluation for bilateral hearing loss. See Appellant's Br. at 15-21; Reply Br. at 6-10.

One of those arguments is that the Board provided inadequate reasons or bases for not referring

the claim for consideration of an extraschedular evaluation because the record evidence establishes

that his hearing problems, including hyperacusis, constitute an exceptional disability picture not

contemplated by his current, noncompensable hearing loss evaluation under 38 C.F.R. § 4.85, and

cause marked interference with employment. See Appellant's Br. at 17-19; Reply Br. at 7-9.

Specifically, he asserts that his hearing problems prevent him from wearing hearing aids and cause

ear pain, social isolation, depression, and noise intolerance, and that the rating schedule does not

expressly contemplate hyperacusis. Appellant's Br. at 18-19 (citing 24, 69, 145-46, 456, 741).

The upshot of these assertions is that, if hyperacusis were a part of the bilateral hearing loss claim,

the record would have raised the question of whether the rating schedule was adequate to evaluate

the veteran's service-connected hearing loss and triggered the Board's duty to maximize benefits

by exploring all schedular avenues for compensating the identified symptoms. 3 See Long v. Wilkie,

33 Vet.App. 167, 174 (2020) (en banc), appeal docketed sub nom. Long v. McDonough, No. 21-

1699 (Fed. Cir. Feb. 19, 2021); Morgan v. Wilkie, 31 Vet.App. 162, 164 (2019).

But, as explained above, although the record before the Court reflects that the issue of

entitlement to compensation for hyperacusis was part of either his bilateral hearing loss or sinus

disability claim and appeal, it is unclear specifically which of those claims it is a part of. Compare,

e.g., R. at 7 (Board's notation, in its summary of the evidence relevant to the bilateral hearing loss

claim, that a VA audiologist in February 2016 counseled the veteran on hyperacusis), with R. at 8-

9 (Board finding that the sinus disability claim included "earaches" claimed as due to "in-service

dental treatment (wisdom tooth removal)"). That factual assessment is best left to the Board, which

is the tribunal charged with "confronting the difficult questions of what current []condition actually

exist[s]" and making "affirmative finding[s] as to the nature of the [claimant's] condition."

Clemons, 23 Vet.App. at 6; see Hensley v. West, 212 F.3d 1255, 1263-64 (Fed. Cir. 2000) (noting

3

The Court notes that the Board found that the veteran's complaints of "difficulty understanding

conversational speech, especially in adverse listening environments; as well as difficulty with hearing the television"

did not present an exceptional disability picture warranting extraschedular referral. R. at 8. However, it did not

address the alleged symptoms and functional effects of hearing loss listed above.

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that "appellate tribunals are not appropriate fora for initial fact finding" and that a remand is

appropriate if the lower adjudicative body "failed to make findings of fact essential to the

decision").

In other words, because the record presently before the Court is inadequate to determine

whether the issue of entitlement to compensation for hyperacusis is part of the veteran's bilateral

hearing loss or sinus disability claim and appeal, and because the Board's consideration of

hyperacusis on remand may lead to an award of additional compensation for the veteran's service-

connected bilateral hearing loss if hyperacusis is deemed to be part of that claim, it is premature

for the Court to decide whether the Board erred in denying an initial compensable evaluation for

bilateral hearing loss. Accordingly, the Court will also remand that issue to the Board for

readjudication alongside the hyperacusis issue. 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").

On remand, Mr. Grimes is free to present to the Board the arguments from his brief, as well

as any additional arguments and evidence relevant to his evaluation for bilateral hearing loss, in

accordance with Kutscherousky v. West, 12 Vet.App. 369, 372-73 (1999) (per curiam order). See

Kay v. Principi, 16 Vet.App. 529, 534 (2002). 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.

IV. CONCLUSION

Upon consideration of the foregoing, the portion of the December 18, 2017, Board decision

referring to the RO a claim for service connection for hyperacusis is MODIFIED to strike the

referral, and the matter is REMANDED for the Board to adjudicate, in the first instance,

entitlement to compensation for hyperacusis, as part of either the bilateral hearing loss or sinus

disability claim over which it had jurisdiction. Moreover, the portion of the Board decision

denying entitlement to an initial compensable evaluation for bilateral hearing loss is SET ASIDE

and that matter is REMANDED for further development, if necessary, and readjudication

consistent with this decision.

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