Citation Nr: 1002889
Decision Date: 01/20/10	Archive Date: 07/08/10

DOCKET NO. 03-37 012                       DATE JAN 20 2010

On appeal from the Department of Veterans Affairs Regional Office in Oakland, California 

THE ISSUES 

1. Entitlement to a rating in excess of 40 percent for bilateral hearing loss. 

2. Entitlement to a total disability rating based on individual unemployability (TDIU). 

REPRESENTATION 

Appellant represented by: Disabled American Veterans 

WITNESS AT HEARING ON APPEAL 

Appellant & Appellant's Wife 

ATTORNEY FOR THE BOARD 

T. M. Gillett, Associate Counsel 

INTRODUCTION 

The Veteran served on active duty from August 1954 to April 1958. 

This appeal is before the Board of Veterans' Appeals (Board) on appeal from November 2002 (TDIU) and August 2005 (hearing loss) rating decisions by the Oakland, California Department of Veterans Affairs (VA) Regional Office (RO). 

In a June 2007 decision, the Board denied the Veteran's aforementioned claim for a TDIU. This denial will be vacated in a separate decision. See 38 C.F.R. § 20.904(a) (2009). Accordingly, jurisdiction of this issue is again appropriately before the Board. 

In October 2009, the Veteran testified at a hearing before the Board, seated at the RO. A transcript is of record. 

At the hearing, the Veteran indicated that he had developed diabetes due to inaction caused by his service-connected residuals of fractures of the right tibia/fibula. The Board hereby refers a claim for diabetes secondary to the service-connected residuals of fractures of the right tibia/fibula to the RO for further development. 

The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. 

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REMAND 

The Board finds that additional development is required before the issue on appeal is ripe for adjudication upon the merits. 38 C.F.R. § 19.9 (2009). The Veteran essentially contends that the 40 percent rating assigned for his service-connected bilateral hearing disorder does not accurately reflect the actual severity of the disorder. 

The Board notes that the Veteran was provided with a VA hearing examination in September 2008. However, at the October 2009 hearing before the Board, the Veteran presented credible testimony that his condition had worsened since the last examination. Having reviewed the evidence of record, the Board finds that there is a duty to schedule another examination. VA's General Counsel has indicated that when a claimant asserts that the severity of a disability has increased since the most recent rating examination, an additional examination is appropriate. See VAOPGCPREC 11-95; see also, e.g., Caffrey v. Brown, 6 Vet. App. 377, 381 (1995); Green v. Derwinski, 1 Vet. App. 121, 124 (1991). See also 38 C.F.R. § 3.327 (2009). 

As stated above, the Veteran had an outstanding request for a hearing with respect to his TDIU claim at the time of the Board's June 2007 denial. Such due process obligation was later satisfied by the hearing provided in October 2009. Indeed, the Veteran discussed the impact of his hearing loss on his employability at that time. However, a competent opinion addressing the impact of the Veteran's service-connected disabilities on his ability to secure gainful employment is not of record. 

Accordingly, the case is REMANDED for the following action: 

1. The AMC/RO should review the record and take any necessary action to ensure compliance with all VCAA notice and assistance requirements. 

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2. The AMC/RO should schedule the Veteran for a VA audiology examination, at the VA medical facility in Chico, California, if possible, to determine the severity of his hearing loss in each ear in accordance with 38 C.F.R. § 4.85. Utilizing the Maryland CNC test and any other tests that may be required, the examiner is asked to enter an opinion as to the current level of hearing loss in each ear, to include reporting of puretone threshold averages and percentage speech discrimination scores. The examiner should also state whether it is at least as likely as not that the Veteran is unable to secure and follow a substantially gainful occupation by way of his service-connected hearing loss. A rationale must accompany all opinions provided. 

3. Following the completion of the requested actions, the RO should then re-adjudicate the Veteran's hearing loss and TIDU claims. If the benefits on appeal remain denied, the Veteran and his representative should be provided with a Supplemental Statement of the Case (SSOC) and afforded an applicable opportunity to respond. Thereafter, the case should be returned to the Board, if in order. 

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). 

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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 2002 & Supp. 2009). 

ERIC S. LEBOFF
Acting Veterans Law Judge, Board of Veterans' Appeals 

Under 38 U.S.C.A. § 7252 (West 2002 & Supp. 2009), 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) (2009). 

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