Citation Nr: 1302294 Decision Date: 01/22/13 Archive Date: 01/31/13 DOCKET NO. 10-03 907 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Entitlement to a disability rating in excess of 50 percent for a bilateral hearing loss disability. 2. Entitlement to a total disability rating for compensation purposes, based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD C. R. Olson, Counsel INTRODUCTION The veteran served on active duty from February 1976 to December 1984. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2009 decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. The Board has not only reviewed the Veteran's physical claims file but also the Veteran's file on the "Virtual VA" system to insure a total review of the evidence. In January 2011, a hearing was held before the undersigned Veterans Law Judge, who is the Board member making this decision and who was designated by the acting Chairman to conduct that hearing, pursuant to 38 U.S.C.A. § 7102(b) (West 2002). The issues were fully explained and the evidence discussed, including the possible submission of additional evidence. The transcript of the hearing is in the claims folder. 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. REMAND The statement of the case shows that the RO considered on-line VA treatment records from a VA Medical Center from February 3, 2007 to January 4, 2010 with the last record dated October 23, 2009. Hard copies of those records are not in the claims folder. Further, the RO did not attach the records to the Virtual VA electronic data base. Consequently, the Board cannot review the evidence that was considered by the RO. During his January 2011 Board hearing, the Veteran testified that he had a VA hearing test a few months earlier. A VA clinical record confirms that audiometric testing was done in September 2010 and; "An audiogram was recorded at this visit, and is viewable via the tools menu of CPRS, in "AUDIOGRAM DISPLAY." Unfortunately, this VA evidence, which the Veteran cites in support of his claim, is not available to the Board. The clinical record merely stated that audiometrics showed moderate to severe to profound sensorineural hearing loss, bilaterally; and that word recognition was 72 percent on the right and 64 percent on the left. This is not enough information to rate the disability. Cf. 38 C.F.R. § 4.85. The record contains a February 2007 VA audiology note which states that audiometrics were stable relative to the Veteran's March 2005 audiology testing and that hearing aids were issued in August 2005. However, the actual records are not in the claims file or the Virtual VA electronic file. These records may provide significant background and should be available for Board review. VA should obtain all relevant VA and private clinical documentation which could potentially be helpful in resolving the Veteran's claim. See Murphy v. Derwinski, 1 Vet. App. 78, 81-82 (1990); Bell v. Derwinski, 2 Vet. App. 611 (1992). The Board regrets the further delay, but we must be sure that we have all relevant evidence, particularly VA records. 38 U.S.C.A. § 5103A(c) (West 2002). In Rice v. Shinseki, 22 Vet. App. 447 (2009), the United States Court of Appeals for Veterans Claims (Court) held that a claim for total disability based on individual unemployability (TDIU) is part of an increased rating claim when such claim is raised by the record. The evidence pertaining to the increased rating claim in this case shows that the Veteran testified that he had to leave one job and that he had difficulty finding another because of his hearing loss. Under the Court's holding in Rice this is enough to raise an inferred TDIU claim. Accordingly, the case is REMANDED for the following action: 1. Provide the Veteran with notice as to what information or evidence is needed to substantiate a claim for TDIU. 2. Associate with the claims file or Virtual VA all VA medical records from March 2005 to the present. The Veteran has had treatment at the Nashville VAMC and audiological testing at the Clarksville CBOC. Thus, the agency of original jurisdiction (AOJ) should be sure to obtain records from both locations. * Ensure the above records include VA clinical records from February 3, 2007 to January 4, 2010, as previously identified in the statement of the case. * Also ensure the records include all audiogram displays from March 2005 to the present, in particular the September 2010 audiogram. If any of the requested records cannot be associated with the claims folder or Virtual VA file, the Veteran should be duly notified in accordance with 38 U.S.C.A. § 5103A(b)(2) (West 2002). 3. Then, schedule the Veteran for a VA audiological examination for compensation purposes in order to determine the current nature and severity of his bilateral hearing loss disability. All indicated tests and studies should be accomplished and the findings then reported in detail. a. The examiner should express an opinion as to the impact of the Veteran's bilateral hearing loss disability upon his daily activities and vocational pursuits. b. The examiner should also express an opinion as to whether the Veteran's service-connected disabilities, hearing loss and tinnitus, would prevent him from engaging in some form of substantially gainful employment consistent with his education and experience. The agency of original jurisdiction must ensure that the audiometric test results have been associated with the claims or Virtual VA files. 4. Thereafter, ensure that the development above has been completed in accordance with the remand instructions and undertake any other development action that is deemed warranted. Then readjudicate the Veteran's claim. The AOJ should make a determination as to whether referral for extraschedular consideration is warranted. The AOJ should adjudicate the TDIU claim. If the benefit sought on appeal remains denied, the Veteran should be provided a supplemental statement of the case (SSOC). An appropriate period of time should be allowed for response before the case is returned to the Board. The Board intimates no opinion as to the ultimate outcome of this case. The appellant need take no action unless otherwise notified. 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. 2012). _________________________________________________ MICHELLE L. KANE 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) (2012).