Citation Nr: 1303358 Decision Date: 01/31/13 Archive Date: 02/05/13 DOCKET NO. 07-28 830 ) DATE ) ) On appeal from the Department of Veterans Affairs Medical and Regional Office Center in Wichita, Kansas THE ISSUES 1. Entitlement to an extraschedular rating pursuant to the provisions of 38 C.F.R. § 3.321(b) for bilateral hearing loss. 2. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Robert V. Chisholm, Attorney WITNESSES AT HEARING ON APPEAL The appellant and C.H. ATTORNEY FOR THE BOARD Rebecca Feinberg, Counsel INTRODUCTION The Veteran had active military service from September 1943 to February 1946. He was awarded the Purple Heart Medal and the Combat Infantryman Badge. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a June 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Wichita, Kansas. In that decision, the RO, in pertinent part, granted an increase in the schedular disability rating for bilateral hearing loss from 60 to 70 percent effective from November 8, 2005. The Veteran perfected an appeal from that decision. In January 2008, the Veteran testified before a Decision Review Officer of the RO. During the pendency of the appeal, in a February 2008 rating decision, the RO increased the disability rating for bilateral hearing loss from 70 to 80 percent effective from February 7, 2008. In June 2009, the Veteran presented testimony at a hearing before the Board; a copy of the hearing transcript is in the record. In an August 2012 letter, the Board informed the Veteran that the Veterans Law Judge that conducted his June 2009 hearing was no longer employed at the Board. The Veteran was asked to specify whether he wished to be scheduled for another hearing. The Veteran did not respond to this correspondence. Furthermore, in a December 2012 written statement, the Veteran's attorney indicated that he did not wish to appear at a hearing on the matter on appeal. Therefore, the Board finds that all due process has been met in this regard. The Veteran was previously represented by Disabled American Veterans; however, in November 2012, he submitted a completed VA Form 21-22a, appointing the above-referenced attorney as his representative. The Board recognizes this change. In a September 2009 decision, the Board granted an 80 percent disability rating for bilateral hearing loss disability for the appeal period prior to February 7, 2008. In the decision, the Board also remanded the case in pertinent part for further development with respect to whether an extraschedular rating should be considered pursuant to 38 C.F.R. § 3.321(b) (2012) for bilateral hearing loss. A November 2009 rating decision effectuated the grant of an 80 percent schedular disability rating effective from November 8, 2005. In June 2010, the Board remanded the case after determining that certain development ordered in September 2009 had not been completed. In a November 2010 decision, the Board denied the claim of entitlement to an extraschedular rating for bilateral hearing loss. The Veteran subsequently appealed this decision to the United States Court of Appeals for Veterans Claims (Court). In a July 2012 memorandum decision, which will be explained in more detail below, the Court vacated the Board's November 2010 decision and remanded the matter for further adjudication. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). In addition to the paper claims file, there is a Virtual VA electronic claims file associated with the Veteran's claims. A review of the documents in the electronic file reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issues on appeal. The appeal is REMANDED to the RO. VA will notify the appellant if further action is required. REMAND Hearing Loss Disability The July 2012 Court memorandum decision, as it regards the claim for an extraschedular rating for bilateral hearing loss, indicated that the opinion on which the Board relied in issuing the November 2010 denial was inadequate. It also determined that the Board failed to ensure compliance with its own September 2009 remand. Stegall v. West, 11 Vet. App. 268, 271 (1998). Specifically, the Court found that the opinion obtained by VA, which is dated in July 2010, failed to adequately describe the limitations imposed by the hearing loss on the Veteran's daily activities or in an occupational setting. The Court further noted that the opinion did not appear to consider the Veteran's statements that he had difficulty understanding speech even when he was using his hearing aid devices in a quiet setting or when he was conversing with only one other person. The July 2010 opinion-which indicated that, as a hearing impaired individual, the Veteran could obtain and maintain employment-did not address the limitations imposed by the bilateral hearing loss on the Veteran's daily activities or in an occupational setting. The Court pointed out that consideration under 38 C.F.R. § 3.321(b) contemplates marked interference with employment, not unemployability, and the July 2010 opinion only addressed unemployability. Therefore, this opinion did not comply with the Board's previous remand instructions and was also an inadequate basis on which to decide this issue. Therefore, the Board finds that a remand is necessary to obtain such an opinion with regard to extraschedular consideration of the rating assigned to the Veteran's bilateral hearing loss. TDIU The Court also addressed a claim of entitlement to TDIU in the July 2012 memorandum decision. The Court provided a history of this claim, including a denial by the RO in a June 2006 rating decision, a continued denial of the claim in a March 2008 decision by a decision review officer, and a remand by the Board of this issue in September 2009. A review of the claims file reveals that none of these RO or Board decisions contain an adjudication of a claim of entitlement to a TDIU. Rather, entitlement to this benefit was last adjudicated by the RO in May 2004, which is a decision that the Veteran did not appeal. While the Board did not address this issue directly in September 2009, that document's remand instructions included, among many other things, a direction that, if the Veteran's bilateral hearing loss disability was found to have a negative impact on his occupational functioning and daily activities, it was to be submitted to the Director of Compensation and Pension Service for consideration of an extraschedular consideration in accordance with 38 C.F.R. § 4.16(b), which provides for extraschedular consideration for TDIU claims. At the time of the September 2009 Board remand, however, the Veteran already met the schedular requirements for TDIU consideration. See 38 C.F.R. § 4.16(a). Nevertheless, the Board interprets the Court's memorandum decision to mean that the Veteran has raised an implicit claim of entitlement to a TDIU during the pendency of his increased rating claim. If the claimant or the record reasonably raises the question of whether the Veteran is unemployable due to the disability for which an increased rating is sought, then part and parcel to that claim for an increased rating, is whether a TDIU as a result of that disability is warranted. Rice v. Shinseki, 22 Vet. App. 447 (2009). Furthermore, the Veteran filed a VA Form 21-8940 in December 2012. While this matter is now before the Board, we find that additional development is warranted prior to adjudication. The Veteran has not been provided with notice of the duties to notify and assist with regard to this claim. As such, a remand is necessary, and an opinion as to whether the Veteran is unemployable due to his service-connected disabilities should be obtained. 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) (2012). Expedited handling is requested.) 1. The RO should provide the Veteran with a proper notice letter in connection with his claim for TDIU. 2. The RO should provide the Veteran with the opportunity to identify any additional relevant treatment records, from either private or VA facilities, which pertain to his bilateral hearing loss and TDIU claims, that have not yet been associated with the claims file. Appropriate steps should be taken to obtain any such identified records, as well as to obtain VA medical records dated from June 2009 to the present. All reasonable attempts should be made to obtain such records. If any records cannot be obtained after reasonable efforts have been made, the RO should document in the claims file that such records do not exist or that further efforts to obtain such records would be futile. The Veteran must be notified of the attempts made and why further attempts would be futile and be allowed the opportunity to provide such records, as provided in 38 U.S.C.A. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 3. Obtain an opinion, with regard to the Veteran's bilateral hearing loss, in which a qualified individual describes the effects of the Veteran's bilateral hearing loss disability on his occupational functioning and daily activities. If necessary, the Veteran should be re-examined. The opinion should specifically consider the Veteran's statements that he had difficulty understanding speech even when he was using his hearing aid devices in a quiet setting or when he was only speaking to one person. An opinion with regard to whether the Veteran's bilateral hearing loss renders him unemployable is not enough. There should be a description provided of what limitations, if any, the bilateral hearing loss imposes on the Veteran's daily activities or in an occupational setting. A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. Because it is important "that each disability be viewed in relation to its history [,]" 38 C.F.R. § 4.1, copies of all pertinent records in the appellant's claims file to include the virtual file, or in the alternative, the claims file, must be made available to the examiner for review. 4. Obtain an opinion, consistent with sound medical principles, as to whether, without regard to the impact of nonservice-connected disabilities or the Veteran's age, it is at least as likely as not (i.e., there is a 50 percent or greater probability) that the Veteran's service-connected disabilities (bilateral hearing loss, incomplete paralysis of the median and ulnar nerve of the left arm, and tinnitus), either individually or in combination, render him unable to obtain or maintain substantially gainful employment. In rendering the requested opinion, the physician should consider all objective evidence, as well as the Veteran's assertions as to the effects of his service-connected disabilities on his ability to work. A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. Because it is important "that each disability be viewed in relation to its history [,]" 38 C.F.R. § 4.1, copies of all pertinent records in the appellant's claims file to include the virtual file, or in the alternative, the claims file, must be made available to the examiner for review. 5. After completing these actions, the RO should conduct any other development as may be indicated by a response received as a consequence of the actions taken in the preceding paragraphs. 6. The RO should consider the issue of whether the Veteran is entitled to an extraschedular rating for bilateral hearing loss and TDIU under the provisions of 38 C.F.R. § 4.16(a) on the basis of the Veteran's service-connected disabilities. In so doing, the RO may decide to pursue further development of the Veteran's employment history or to obtain additional medical evidence, as is deemed necessary. If any claim is denied, the Veteran and his attorney should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. The purpose of this REMAND is to obtain additional development, and the Board does not intimate any opinion as to the merits of the case, either favorable or unfavorable, at this time. 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). No action is required of the Veteran until he is notified. 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). _________________________________________________ JESSICA J. WILLS 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).