Citation Nr: 0811997 Decision Date: 04/10/08 Archive Date: 04/23/08 DOCKET NO. 04-27 174 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to a total disability evaluation based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD R. Morales, Associate Counsel INTRODUCTION The veteran served on active duty from August 1944 to April 1946. This appeal comes before the Board of Veterans' Appeals (Board) from a September 2003 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. The appeal was remanded by the Board for additional development in July 2007. The veteran's motion to advance his claim on the docket has been granted. The appeal is REMANDED to the RO via the Appeals Management Center in Washington, DC. VA will notify the appellant if further action is required. REMAND The veteran attended a VA examination in December 2007. At the audiological portion of the examination, the veteran reported that he felt his hearing had worsened since a November 2002 examination. During the examination, the veteran experienced excessive pain due to tic douloureux syndrome, which rendered the veteran unable to sit still and caused him to moan in pain. As a result, the examination could not be completed. However, the audiologist still opined that the veteran's hearing should not render him unemployable. A general examination for the TDIU claim was also conducted, and that examiner based his opinion that the veteran's hearing did not cause his unemployability on the fact that the veteran was able to complete his audiological examination with the use of hearing aids. However, no VA audiological examination had been completed at that time, and no such examination was completed before the claim was readjudicated. The July 2007 Board remand ordered that the veteran be scheduled for a VA examination to determine the current severity of his hearing loss. As the December 2007 examination was not completed and contains no audiological examination, a remand for a new examination is required. See Stegall v. West, 11 Vet. App. 268 (1998). The Board regrets any further delay this causes. At the incomplete audiological examination, the veteran said that he sees a private doctor regarding his hearing and was going in for a hearing test the following week. These records should be obtained. However, a VA examination may still be necessary, as an opinion on the veteran's employability cannot be offered without the results of the audiological examination. An audiological examination must be completed or obtained, and an opinion on the veteran's employability should be offered after the results of this examination are reviewed. Accordingly, the case is REMANDED for the following action: 1. Obtain the veteran's private audiological treatment records. If these records cannot be obtained, then evidence of attempts to obtain them should be associated with the claims file. 2. When the above development is completed and any available evidence identified by the veteran is obtained, the entire claims file must be made available to the VA examiner. Pertinent documents should be reviewed. If the private audiological records contain a complete audiological examination from December 2007 or later, then no VA audiological examination is needed. If they do not, the veteran should be given a complete VA audiological examination. Once the above development is complete, the examiner should state whether it is at least as likely as not that the veteran's service-connected hearing loss alone renders him unable to secure or follow a substantially gainful occupation. The examiner should explain his/her reasoning. 3. After completing the above action, and any other development as may be indicated by any response received as a consequence of the actions taken in the paragraphs above, the claim should be readjudicated. If the claim remains denied, a supplemental statement of the case should be provided to the veteran and his representative. After the veteran and his representative have had an adequate opportunity to respond, the appeal should be returned to the Board for appellate review. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2007). _________________________________________________ MARJORIE A. AUER Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2007).