Citation Nr: 1105062 Decision Date: 02/07/11 Archive Date: 02/14/11 DOCKET NO. 06-37 510 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUES 1. Entitlement to an evaluation in excess of 20 percent for bilateral hearing loss prior to March 13, 2008. 2. Entitlement to an evaluation in excess of 40 percent for bilateral hearing loss prior to November 18, 2009. 3. Entitlement to an evaluation in excess of 60 percent for bilateral hearing loss from November 18, 2009. WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD David Traskey, Associate Counsel INTRODUCTION Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2010). 38 U.S.C.A. § 7107(a)(2) (West 2002). The Veteran had active service from September 1943 to December 1945. This matter came before the Board of Veterans' Appeals (Board) on appeal from a decision of September 2006 by the Department of Veterans Affairs (VA) Jackson, Mississippi, Regional Office (RO). The Veteran requested a video-conference hearing in connection with the current claims. The hearing was scheduled and subsequently held in December 2007 and the Veteran testified before the undersigned Veterans Law Judge (VLJ). The hearing transcript is of record. The Veteran was also scheduled for another video-conference hearing in May 2009. That same month, however, the Veteran withdrew his request for this hearing and asked that the Board make a decision in his case based on the record as submitted in May 2009. The Veteran's claims were previously before the Board in January 2008 and August 2009 and remanded at that time for additional evidentiary development, to include asking the Veteran to identify records pertinent to his claim, obtaining outstanding VA treatment records, and affording the Veteran a VA audiology examination. Unfortunately, the development requested as part of the August 2009 remand order is incomplete. Therefore, another remand is required. See Stegall v. West, 11 Vet. App. 268, 270- 71 (1998) (holding that a remand by the Board confers upon a veteran, as a matter of law, the right to compliance with the Board's remand order). In Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009), the United States Court of Appeals for Veterans Claims (Court) held that a claim for a total disability rating based on individual unemployability (TDIU) is part of an increased rating claim when such claim is raised by the record. See also, Roberson v. Principi, 251 F.3d 1378, 1384 (Fed. Cir. 2001) (noting that once a veteran submits evidence of a medical disability, makes a claim for the highest rating possible, and submits evidence of unemployability, the "identify the benefit sought" requirement of 38 C.F.R. § 3.155(a) is met and the VA must consider TDIU). Recently, in Bradley v. Peake, 22 Vet. App. 280, 293-94 (2008), the Court found that although no additional disability compensation may be paid when a total schedular disability rating is already in effect, a separate award of a TDIU predicated on a single disability may form the basis for an award of special monthly compensation (SMC). Effective March 13, 2008, the Veteran was awarded TDIU. See April 2008 rating decision. To date, the Veteran has not expressed disagreement with the effective date assigned following the award of TDIU. Therefore, the issue of TDIU is not presently before the Board. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required. REMAND As noted above, the Veteran's increased rating claim for bilateral hearing loss was remanded in August 2009 for additional evidentiary development, to include obtaining outstanding VA treatment records and affording the Veteran a VA audiology examination. Preliminarily, the Board notes that the Veteran was afforded a VA Compensation and Pension (C&P) audiology examination in November 2009 and that this examination report is included in the claims file. In addition, the Board requested that VA audiology / ENT clinic records from the Memphis, Tennessee VA Medical Center (VAMC) pertaining to the Veteran be obtained. Specifically, the Board requested that audiogram reports dated September 2003, November 2003, October 2004, and March 2007, as well as a January 2005 VA ear, nose, and throat (ENT) note be associated with the claims file. Although these VA records were subsequently associated with the claims file, the Board notes that the audiogram reports (with the numerical test results) which served as the basis for the diagnoses contained therein, were not obtained as was requested by the Board. Therefore, another remand is required. See Stegall, 11 Vet. App. at 270-71. The Veteran receives medical care through VA. VA is required to make reasonable efforts to help the Veteran obtain records relevant to his claim, whether or not the records are in Federal custody. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159(c) (2010); see also, Bell v. Derwinski, 2 Vet. App. 611 (1992). Therefore, the RO should request all VA medical records pertaining to the Veteran that are dated from October 30, 2008. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2010). Expedited handling is requested.) 1. Obtain all audiology / ENT clinic records for the Veteran from the VA Medical Center (VAMC) in Memphis, Tennessee, to include audiograms (with numerical test results) dated September 2003, November 2003, October 2004, and March 2007. In addition, associate with the claims file relevant VA medical treatment records pertaining to the Veteran from October 30, 2008. All efforts to obtain these records should be fully documented. If these records cannot be obtained, the Veteran should be notified pursuant to 38 C.F.R. § 3.159(e) (2010) and a notation of such should be included in the claims file. 2. Ensure that the development above has been completed in accordance with the remand instructions, undertake any other development action that is deemed warranted, and readjudicate the Veteran's claims. If the benefits sought on appeal remain denied, the Veteran and his representative, if any, should be provided a Supplemental Statement of the Case (SSOC). The SSOC must contain notice of all relevant actions taken on the claims for benefits, to include a summary of the evidence and applicable laws and regulations considered pertinent to the issues currently on appeal. An appropriate period of time should be allowed for response before the case is returned to the Board. The Veteran has the right to submit additional evidence and argument on the 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. 2010). _________________________________________________ S.S. TOTH 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) (2010).