Citation Nr: 1312172 Decision Date: 04/12/13 Archive Date: 04/19/13 DOCKET NO. 12-29 505 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Entitlement to a total disability rating based in individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD R. Dodd, Associate Counsel INTRODUCTION The appellant is a Veteran who served on active duty from July 1952 to July 1955. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2011 rating decision by the St. Louis, Missouri, Regional Office (RO) of the Department of Veterans Affairs (VA). The Veteran filed a notice of disagreement (NOD) on October 2011. The RO issued a statement of the case (SOC) on October 2012 and the Veteran perfected his appeal with the submission of an October 2012 VA Form 9. A review of the Virtual VA paperless claims processing system reveals VA outpatient treatment records dated July 2011 to March 2012. 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). 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 Although the Board regrets the additional delay, remand is necessary to ensure that there is a complete record upon which to decide the Veteran's claim. Specifically, a remand is required to obtain a new VA examination to determine the effect on the Veteran's disabilities on the ability to find and maintain employment. Remand is required to obtain an adequate examination regarding the effect of the Veteran's service-connected disabilities, bilateral hearing loss and tinnitus, on his employability. Remand may be required where the record before the Board contains insufficient medical information for evaluation purposes. Littke v. Derwinski, 1 Vet. App. 90, 93 (1990). The Veteran is currently service-connected for the following disabilities in the following percentages: bilateral hearing loss at 50 percent and tinnitus at 10 percent. The Board observes that the Veteran's schedular combined rating is 60 percent and that this combination is based upon ratings for the same body system related to hearing. As such, he meets the schedular criteria for TDIU. See 38 C.F.R. § 4.16(a)(3) (2012). Thus the remaining issue is whether the Veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. See 38 C.F.R. § 4.16(a). The Veteran has claimed that his service-connected disabilities prevent him from obtaining employment. In his October 2011 NOD, the Veteran stated that he does not believe any employer would hire him with his degree of hearing loss and tinnitus. In particular, the Veteran claims that he would have a difficult time understanding commands and using the telephone. In his VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability, the Veteran indicated that he last worked in 2002 as a security marshal for the 13th Circuit Court, a job which he began in 1990. The Veteran indicated that he did not leave his last job due to his disabilities and he has not attempted to find work afterwards due to his belief that no employer would hire him with his service-connected disabilities. The Veteran also indicated that his highest education level was four years of high school. In an October 2011 letter from a private physician, Dr. A.L.B., it states that the Veteran indicated he worked in his own motor garage greasing parts after service. Of record is an August 2010 VA audiology evaluation report with a June 2011 addendum addressing the issue of unemployability specifically. At that time, the VA examiner diagnosed bilateral mixed hearing loss, with severe to profound hearing loss in the right ear and moderately severe to severe hearing loss in the left ear, and constant tinnitus. Word recognition was noted to be good in the left ear and poor in the right ear. With regard to the Veteran's employability, the examiner noted that with reasonable accommodations as specified by the Americans with Disabilities Act (ADA), the Veteran's hearing loss alone should not significantly affect vocational potential or limit participation in most work activities, with the exception of difficulty communicating via telephone. In October 2011, the Veteran submitted a private audiologist medical opinion report. In her letter, Dr. A.L.B. noted that, in her professional opinion, the Veteran's profound bilateral hearing loss and bilateral tinnitus had essentially rendered him unemployable. She noted that the Veteran needed to avoid working in any environment in which there is any noise which may exacerbate his hearing loss. She indicated that working in a noisy environment would prevent verbal communication face-to-face, as well as by telephone with or without adaptation. Dr. A.L.B. also stated that the Veteran would pose a safety risk in any job setting involving transportation/driving or being around heavy or moving machinery. The Board finds that the June 2011 VA addendum opinion and October 2011 private opinion are insufficient to assess the issue of the Veteran's employability. A review of both opinions fails to adequately address whether the Veteran's service-connected disabilities prevents the Veteran from securing and following a substantially gainful occupation. The June 2011 opinion speaks in generalities and the October 2011 opinion fails to address why all forms of gainful employment is precluded by the Veteran, especially in light of his past history of performing the mental and physical acts required in working in his own garage, as well as working in security for 12 years. The Board notes that the Veteran was last examined in August 2010 and in October 2011, he reported that had had more difficulty hearing conversations and that his tinnitus might be worsening. In light of the foregoing, the Veteran should be scheduled for a VA examination to include an opinion concerning whether his service-connected bilateral hearing loss and tinnitus prevents all forms of gainful employment. Additionally, as this case must be remanded for the foregoing reason, any recent treatment records, including VA records, should also be obtained. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159(c) (2012); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). 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 Veteran should be requested to provide the names, addresses and approximate dates of treatment of all medical care providers, VA and non-VA, who have treated him for his service-connected bilateral hearing loss and tinnitus disabilities. Appropriate efforts must be made to obtain all outstanding VA treatment records. All attempts to procure records should be documented in the file. If the records identified by the Veteran cannot be obtained, a notation to that effect should be inserted in the file. The Veteran is to be notified of unsuccessful efforts in this regard, in order to allow him the opportunity to obtain and submit those records for VA review. 2. After any new evidence has been associated with the claims file, the Veteran should be afforded an examination to determine whether the Veteran, based on his work history, level of education, and service-connected disabilities, but not his age or any nonservice-connected disability, is unable to secure or follow a substantially gainful occupation. The examiner should obtain a complete work history from the Veteran, including the specific duties that were required in each position. The examiner should discuss all impairment and/or symptoms caused by the service-connected disabilities and state whether those disabilities and associated impairment, singularly or jointly (in combination), renders him unable to secure or follow a substantially gainful occupation. This should be discussed in terms of sedentary and manual type of employment. The examiner should specifically address what type of duties the Veteran would be capable of performing in light of his service-connected hearing loss and tinnitus and what duties he would not be able to perform due to his service-connected hearing loss and tinnitus. The examiner should comment on the duties associated with his past positions (working in his own motor garage shop greasing parts and working as a Marshall at the 13th Circuit Court) and comment on whether he would be able to perform those duties or similar duties taking into consideration his service-connected hearing loss and tinnitus. The entire claims file should be made available to and be reviewed by the examiner, and it should be confirmed that such records were available for review. Any indicated tests and studies must be accomplished. An explanation for all opinions expressed must be provided. The rationale for the opinion should include a discussion of the impact of the Veteran's service-connected bilateral hearing loss and tinnitus, his past work history/duties and his educational background. The examiner should not take into consideration the Veteran's age or whether it may be difficult for the Veteran to find employment. Rather, the opinion should focus on whether the Veteran's service-connected hearing loss and/or tinnitus prevent him from performing the physical and mental acts required for a substantially gainful occupation. If an opinion cannot be provided without resort to speculation, it must be noted in the examination report, and an explanation provided for that conclusion. 3. Notify the Veteran that it is his responsibility to report for any scheduled examination and to cooperate in the development of the claim, and that the consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655 (2012). In the event that the Veteran does not report for any scheduled examination, documentation must be obtained which shows that notice scheduling the examination was sent to the last known address. It must also be indicated whether any notice that was sent was returned as undeliverable. 4. Review the examination report to ensure that it is in complete compliance with the directives of this remand. If the report is deficient in any manner, the AMC must implement corrective procedures. Stegall v. West, 11 Vet. App. 268, 271 (1998). 5. After completing the above action, the claim must be readjudicated. If the claim remains denied, a supplemental statement of the case must be provided to the Veteran and his representative. After the Veteran and his representative have had an adequate opportunity to respond, the appeal must 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. 2012). _________________________________________________ K. OSBORNE 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).