Citation Nr: 1317558 Decision Date: 05/30/13 Archive Date: 06/06/13 DOCKET NO. 07-21 828 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for tinnitus. 3. Entitlement to an initial evaluation in excess of 10 percent for diabetic neuropathy of the left lower extremity. 4. Entitlement to an initial evaluation in excess of 10 percent for diabetic neuropathy of the right lower extremity. 5. Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU). REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Rebecca Feinberg, Counsel INTRODUCTION The Veteran served on active duty from March 1969 to March 1971. This matter comes to the Board of Veterans' Appeals (Board) on appeal from January 2006, August 2009, and October 2010 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. While the Veteran previously requested to appear at a hearing before the Board, he withdrew this hearing request in writing in June 2010. Thus, there is no outstanding request. A review of the Veteran's virtual VA claims file reveals that there is pertinent evidence, consisting of VA treatment records, that are not associated with the paper claims file. However, in April 2012, the Veteran's representative waived RO review of all evidence added to the claims file since the last adjudication of the claims. Therefore, the Board may proceed with this appeal. The issues of entitlement to service connection for hearing loss and tinnitus and entitlement to a TDIU are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. The Veteran's diabetic neuropathy is productive of moderately severe paralysis of the sciatic nerve in both lower extremities. 2. The severity of the Veteran's diabetic neuropathy of both lower extremities has remained essentially consistent throughout the appeal period. CONCLUSIONS OF LAW 1. The criteria for an initial evaluation of 40 percent for diabetic neuropathy of the left lower extremity are met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 4.1-4.14, 4.124a, Diagnostic Code 8520 (2012). 2. The criteria for an initial evaluation of 40 percent for diabetic neuropathy of the right lower extremity are met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 4.1-4.14, 4.124a, Diagnostic Code 8520 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). Proper notice from VA must inform the claimant of any information and medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In addition, the notice requirements of the VCAA apply to all elements of a service connection claim, including the degree of disability and the effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. VCAA notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). Where complete notice is not timely accomplished, such error may be cured by issuance of a fully compliant notice followed by readjudication of the claim. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). With regard to claims for increased disability ratings for service-connected conditions, the law requires VA to notify the claimant that, to substantiate a claim, the claimant must provide, or ask VA to obtain, medical or lay evidence demonstrating a worsening or increase in severity of the disability. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), vacated and remanded sub nom. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). The claimant must be notified that, should an increase in disability be found, a disability rating will be determined by applying relevant Diagnostic Codes, which typically provide for a range in severity of a particular disability from noncompensable to as much as 100 percent (depending on the disability involved), based on the nature of the symptoms of the condition for which disability compensation is being sought, their severity and duration. Finally, the notice must provide examples of the types of medical and lay evidence that the Veteran may submit (or ask the VA to obtain) that are relevant to establishing her or his entitlement to increased compensation. However, the notice required by section 5103(a) need not be specific to the particular Veteran's circumstances; that is, VA need not notify a Veteran of alternative diagnostic codes that may be considered or notify of any need for evidence demonstrating the effect that the worsening of the disability has on the particular Veteran's daily life. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). The notice must be provided prior to an initial unfavorable decision by the agency of original jurisdiction (AOJ). Nevertheless, the Veteran in this case is challenging the initial evaluations assigned following the grant of service connection for his diabetic neuropathy of both lower extremities. In Dingess, the Court held that in cases where service connection has been granted and an initial disability rating and effective date have been assigned, the typical service-connection claim has been more than substantiated, it has been proven, thereby rendering section 5103(a) notice no longer required because the purpose that the notice is intended to serve has been fulfilled. Id. at 490-91. See also VAOPGCPREC 8-2003 (December 22, 2003). Thus, because the notice that was provided before service connection was granted was legally sufficient, VA's duty to notify has been satisfied with respect to the issues on appeal. In addition, the duty to assist the Veteran has also been satisfied in this case. The Veteran's service treatment records have been associated with the claims file. In addition, all identified and available post-service medical records have been obtained or submitted and associated with the file, to include the records from the Veteran's application for Social Security Administration disability benefits. The Veteran and his representative have not identified any outstanding records that are pertinent to the claims being decided herein. The Veteran was afforded VA examinations in October 2005, December 2006, March 2009, March 2010, and May 2012. The Board finds that the VA examinations obtained in this case are adequate, as they are predicated on a review of the Veteran's medical history as well as on a physical examination and fully address the rating criteria that are relevant to rating the disability in this case. There is also no objective evidence indicating that there has been a material change in the severity of the Veteran's service-connected disability since he was last examined. 38 C.F.R. § 3.327(a). The duty to assist does not require that a claim be remanded solely because of the passage of time since an otherwise adequate VA examination was conducted. VAOPGCPREC 11-95. Thus, there is adequate medical evidence of record to make a determination in this case. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the issues on appeal has been met. 38 C.F.R. § 3.159(c)(4). The Board concludes the Veteran was provided the opportunity to meaningfully participate in the adjudication of his claims and did in fact participate. Washington v. Nicolson, 21 Vet. App. 191 (2007). For these reasons, the Board concludes that VA has fulfilled the duty to assist the Veteran in this case. Hence, there is no error or issue that precludes the Board from addressing the merits of this appeal. II. Law and Analysis Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. 38 C.F.R. § 4.7. In considering the severity of a disability, it is essential to trace the medical history of the veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41. Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). While the regulations require review of the recorded history of a disability by the adjudicator to ensure a more accurate evaluation, the regulations do not give past medical reports precedence over the current medical findings. Where an increase in the disability rating is at issue, the present level of the veteran's disability is the primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Where a veteran appeals the initial rating assigned for a disability when a claim for service connection for that disability has been granted, evidence contemporaneous with the claim for service connection and with the rating decision granting service connection would be most probative of the degree of disability existing at the time that the initial rating was assigned and should be the evidence "used to decide whether an [initial] rating on appeal was erroneous . . . ." Fenderson v. West, 12 Vet. App. 119, 126 (1999). If later evidence obtained during the appeal period indicates that the degree of disability increased or decreased following the assignment of the initial rating, "staged" ratings may be assigned for separate periods of time based on facts found. Id.; see also Hart v. Mansfield, 21 Vet. App. 505 (2007) (VA's determination of the "present level" of a disability may result in a conclusion that the disability has undergone varying and distinct levels of severity throughout the entire time period the increased rating claim has been pending). In this case, the Veteran is currently assigned separate 10 percent evaluations for his diabetic neuropathy in each lower extremity pursuant to 38 C.F.R. § 4.124(a), Diagnostic Code 8520. Under that diagnostic code, a 10 percent evaluation is contemplated for mild incomplete paralysis, and a 20 percent evaluation is assigned for moderate incomplete paralysis. A 40 percent evaluation is warranted for severe incomplete paralysis, and a 60 percent evaluation is contemplated for severe incomplete paralysis with marked muscular atrophy. An 80 percent evaluation is warranted for complete paralysis, where the foot dangles and drops, there is no active movement possible of the muscles below the knee, and flexion of the knee is weakened or (very rarely) lost. See 38 C.F.R. § 4.124a, Diagnostic Code 8520 (2012). The term "incomplete paralysis" with peripheral nerve injuries indicates a degree of loss or impaired function substantially less than the type pictured for complete paralysis given with each nerve, whether due to the varied level of the nerve lesion or to partial regeneration. When the involvement is wholly sensory, the rating should be for mild, or at most, the moderate degree. See Note at "Diseases of the Peripheral Nerves" in 38 C.F.R. § 4.124(a). In considering the evidence of record under the laws and regulations as set forth above, the Board concludes that the Veteran is entitled to a higher initial evaluation for his diabetic neuropathy of both lower extremities. In October 2005, the Veteran underwent VA examination during which he reported that his pain that was primarily in the balls of his feet and legs and was aggravated toward the end of the day, especially if he was driving. He indicated that he was unable to walk towards the end of the day due to pain. The Veteran had no weakness with the pain, but his pain occurred on a daily basis. On evaluation, a motor examination was 5/5 in each lower extremity. His sensation was decreased to pinprick in the ankles, and his vibration was decreased in the toes. The Veteran's deep tendon reflexes were 2+ in the knees and 1+ in the ankles, but there was no atrophy. There was a region of hyperpigmentation in the lower aspect of the feet, and there was allodynia bilaterally in the feet. The diagnosis was neuropathy, which was most likely due to diabetes. A December 2005 private written statement indicates that the Veteran complained of numbness of the feet and legs. He had neuropathy of both feet and legs. An August 2006 VA outpatient treatment record shows that the Veteran complained of left leg pain that was noted to be affecting the knee, ankle, and foot. His diabetic neuropathy was considered to be basically stable on his present medication. An October 2006 VA outpatient treatment record indicates that the Veteran complained of numbness in his feet and legs. In December 2006, the Veteran underwent a VA examination during which he had 4/5 muscle strength in the lower extremities. His sensation to vibration and light touch were decreased in the lower extremities, but his pain and position sense were normal. The Veteran's knee, ankle, and feet reflexes were 2+, and there was no muscle atrophy or abnormal muscle tone or bulk. A March 2007 VA outpatient treatment record shows that the Veteran complained of numbness, tingling, lack of feeling, and burning in his lower extremities, which had worsened since he first noticed it in 2005. Presently, he had a significant lack of feeling in his distal lower extremities with difficulties in ambulation. He walked with an unsteady gait, which was secondary to lack of feeling in his feet. He had a tendency to fall and tried to avoid falling down by walking carefully and slowly. He used a cane for any significant ambulation. He could walk no more than half a block and avoided stairs when possible. The Veteran used diabetic shoes and compression stockings, and medication did not help with his symptoms. On examination, the Veteran walked with an antalgic gait, and there was some unsteadiness secondary to the difficulties with his feet. The pain was reflected in the Veteran's face. A motor examination was satisfactory, but pinprick, vibration, and position sense was decreased in the lower extremities. There was a lack of hair on both feet. There was no edema, and his peripheral pulses were normal. The diagnosis was peripheral neuropathy of the lower extremities, which was secondary to his type II diabetes mellitus. In March 2009, the Veteran underwent a VA examination during which he complained of numbness, paresthesias, and pain in his feet. He had 4/5 strength in the lower extremities, and a sensory examination revealed decreased responses to vibration, pain, and light touch. His position sense and reflexes were normal, and there was no atrophy. The Veteran had an antalgic gait, but normal balance. In March 2010, the Veteran underwent a VA examination during which he reported having numbness and tingling in his feet and noted two falls due to being off balance. The Veteran ambulated with a cane due to low back and hip conditions. A motor examination revealed 4/5 strength in the right leg and thigh due to the lumbar and hip conditions. Sensation testing for vibration and pain were decreased, but light touch and position sense were normal. A reflex examination was normal, and there was no atrophy. The diagnosis was peripheral neuropathy of the lower extremities, which the examiner indicated had a mild to moderate effect on the Veteran's activities of daily living. An April 2010 private treatment record shows that the Veteran reported having pain radiating into his right lower extremity, which sometimes caused tingling in the right toes and numbness of the right foot. He also noted that the pain in the leg began within fifteen minutes of him driving in the car. On examination, the Veteran had an antalgic gait, and he had trouble walking in a straight line without a case due to decreased sensation in his feet. There was no muscle atrophy, and his strength was 5/5. The Veteran's sensation to vibratory stimulation was absent in the bilateral toes, but sensation was intact above the ankles, as was his sensation to position sense. His reflexes were also normal. The diagnosis was decreased sensation in the peripheries, which was likely due to peripheral neuropathy and possibly related to diabetes. In May 2012, the Veteran underwent another VA examination during which he described having increased symptoms at night as well as intermittent pain. He denied having constant pain in either extremity, but reported having severe intermittent pain. He also described severe paresthesias and numbness. Strength testing was normal at 5/5 in the lower extremities, and his reflexes were normal; however, light touch was decreased in the ankles and absent in the feet and toes. The Veteran's position sense was normal, but his vibration sensation was decreased in the lower extremities, and his cold sensation was absent in the lower extremities. There was no muscle atrophy, but there was hair loss. The examiner found that the Veteran had moderately severe incomplete paralysis of each lower extremity. The Board finds that, based upon the evidence of record, an increase to a 40 percent disability rating is warranted under Diagnostic Code 8520 for moderately severe incomplete paralysis of each lower extremity. The May 2012 VA examiner specifically indicated that the Veteran had moderate incomplete paralysis. Moreover, the Board finds that the disabilities remained largely consistent throughout the appeal period. Specifically, since he was first examined in October 2005, the Veteran complained of pain and numbness that interfered with his ability to walk and had decreased sensation to vibration and pin prick along with a loss of hair on his lower extremities. While strength testing was normal at that time, and there was no muscle atrophy, these were identical to the findings on examination in May 2012. Therefore, the Board concludes that the Veteran's disabilities have remained essentially consistent in severity during the appeal period, and a 40 percent rating is assigned for each lower extremity. However, the Board finds that a disability rating in excess of 40 percent is not warranted. Throughout the appeal period, the Veteran ambulated with the help of canes and braces, but it was consistently shown that he was able to get around with the assistance of these devices. He was still able to drive a car, and there is no evidence that his peripheral neuropathy ever resulted in an inability to ambulate (as opposed to just an interference with his walking). Throughout the appeal period, the Veteran had no atrophy of the lower extremities, as indicated on every VA examination report. Strength testing was never less than 4/5 and was even found to be 5/5 on several occasions. In summary, there is no evidence that the Veteran had marked muscle atrophy, and as noted above, the VA examiner specifically described his disability as moderate incomplete paralysis. Furthermore, complete paralysis of the sciatic nerve is not demonstrated. First, there is no lay or medical evidence suggesting that the Veteran demonstrated the loss of active movement of the muscles below the knee in either lower extremity. As noted above, a motor examination has never been less than 4/5, which only represents less than normal strength. Therefore, throughout the appeal period, the Veteran maintained active movement of the muscles of each lower extremity. There is also no lay or medical evidence suggesting the presence of foot drop. Finally, when it was specifically tested in May 2012, strength on flexion of the knees was 5/5. As such, there is no suggestion, implication, or evidence that the Veteran ever had weakened or lost flexion of either knee. Therefore, a disability rating in excess of 40 percent under Diagnostic Code 8520 is not warranted at any time for either lower extremity. The assignment of a particular diagnostic code depends on the facts of a particular case. See Butts v. Brown, 5 Vet. App. 532, 538 (1993). One diagnostic code may be more appropriate than another based on such factors as an individual's relevant medical history, the current diagnosis, and demonstrated symptomatology. Any change in diagnostic code by a VA adjudicator must be specifically explained. See Pernorio v. Derwinski, 2 Vet. App. 625, 629 (1992). In this case, the Board has considered whether another rating code would more appropriately assess the Veteran's disabilities or afford a higher rating. See Tedeschi v. Brown, 7 Vet. App. 411, 414 (1995). Because muscle atrophy and limitation of motion of the knees and ankles is not shown, none of the individual rating codes for these injuries could afford the Veteran a rating higher than 40 percent. See 38 C.F.R. §§ 4.71a, Diagnostic Codes 5256-5274, 5276-5284; 4.73, Diagnostic Codes 5310-5312. Although separate ratings could be assigned for each manifestation of the left and right leg disabilities, there is no evidence of muscle atrophy or limitation of motion. Thus, the combined rating would not be higher than the 40 percent rating now assigned for each lower extremity. In reaching this decision, the potential application of various provisions of Title 38 Code of Federal Regulations have been considered, whether or not they were raised by the Veteran. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). In particular, the Board has considered the provisions of 38 C.F.R. § 3.321(b)(1). However, in this case, the Board finds that the record does not show that the Veteran's disabilities are so exceptional or unusual as to warrant the assignment of a higher rating on an extra-schedular basis. See 38 C.F.R. § 3.321(b)(1) (2012). The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. See Thun v. Peake, 22 Vet. App. 111 (2008). In this regard, there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability. If the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule and the assigned schedular evaluation is therefore adequate, and no extraschedular referral is required. Id., see also VAOGCPREC 6-96 (Aug. 16, 1996). Otherwise, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, VA must determine whether the claimant's exceptional disability picture exhibits other related factors, such as those provided by the extraschedular regulation (38 C.F.R. § 3.321(b)(1)) as "governing norms" (which include marked interference with employment and frequent periods of hospitalization). The evidence in this case does not show such an exceptional disability picture that the available schedular evaluations for the service-connected disabilities are inadequate. A comparison between the level of severity and symptomatology of the Veteran's assigned ratings with the established criteria found in the rating schedule shows that the rating criteria reasonably describe the Veteran's disability level and symptomatology, which include pain, numbness, decreased sensation, and difficulty walking. As such, it cannot be said that the available schedular evaluations for the disabilities are inadequate. Based on the foregoing, the Board finds that the requirements for an extraschedular evaluation for the Veteran's service-connected diabetic neuropathy of the lower extremities under the provisions of 38 C.F.R. § 3.321(b)(1) have not been met. Bagwell v. Brown, 9 Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218 (1995); Thun v. Peake, 22 Vet. App. 111 (2008). ORDER An initial evaluation of 40 percent for diabetic neuropathy of the left lower extremity is assigned, subject to the laws and regulations governing the payment of VA benefits. An initial evaluation of 40 percent for diabetic neuropathy of the right lower extremity is assigned, subject to the laws and regulations governing the payment of VA benefits. REMAND The Board finds that additional development is necessary prior to final adjudication of the claims remaining on appeal. The Veteran contends that he is entitled to service connection for bilateral hearing loss and tinnitus, as he believes that he developed these disorders due to noise exposure during his period of service. When examined for entry into service, the Veteran's pure tone thresholds in all measured levels was 0, and he denied having a history of hearing loss or ear trouble. At separation in March 1971, the Veteran's hearing was 15/15 bilaterally on a whispered voice test. In March 2009, the Veteran underwent a VA examination, and the examiner reviewed his claims file. He complained of bilateral hearing loss and tinnitus and noted that he was exposed to the noise of incoming mortar rounds as a cook for eight months in Vietnam. He also indicated that, prior to service, he worked in a grocery store. Following service, he worked for U.S. Steel for eleven years, as a security guard for one to two years, and for a cable company for twenty-three years. He dated his onset of tinnitus to four to six years ago. On audiological examination, his pure tone thresholds were: 500 Hz 1000 Hz 2000 Hz 3000 Hz 4000 Hz Right 35 40 45 55 70 Left 50 50 60 60 65 The examiner indicated that the test results were judged to be fair to poor in reliability. It was specifically noted that the speech discrimination scores should not be used for rating purposes because they were felt to be exaggerated. The pure tone thresholds were also questionable, but were felt to be more accurate than the speech discrimination scores. While the diagnosis was sensorineural hearing loss in each ear, the examiner commented that, overall, the test scores were considered invalid. Nevertheless, the examiner reviewed the claims file and service records. She indicated that, because whispered voice tests did not adequately assess hearing loss, they were invalid. Due to this lack of information regarding the Veteran's hearing at separation, there was no way to determine whether he incurred hearing loss while in service. Since he stated that he began to experience tinnitus four to six years ago and many years after separation, the examiner opined that the current tinnitus was not related to service. The Board notes that the Veteran is competent to attest to his noise exposure in service. 38 C.F.R. § 3.159(a)(2). Further, although the competent evidence does not reflect the presence of hearing loss in either ear to an extent recognized as a disability during the period of the Veteran's service, the absence of evidence of such hearing loss in service is not fatal to the claim. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Evidence of a current hearing loss disability (i.e., one meeting the requirements of 38 C.F.R. § 3.385, as noted above) and a medically sound basis for attributing such disability to service may serve as a basis for a grant of service connection for hearing loss. See Hensley v. Brown, 5 Vet. App. 155, 159 (1993). Likewise, service connection may be granted for tinnitus or any other disability diagnosed post-service upon a showing of a nexus between that disability and injury or disease in service. See, e.g., 38 C.F.R. § 3.303(d). The March 2009 VA examiner indicated that she could not provide an opinion as to whether the Veteran had hearing loss that is due to service because there was an invalid separation evaluation of his hearing. However, the Board notes that the examiner address the Veteran's stated history of symptomatology, which may aid in rendering an opinion on this matter. Moreover, it would have been helpful had the VA examiner brought her expertise to bare in this case regarding medically known or theoretical causes of sensorineural hearing loss and tinnitus or described how hearing loss and tinnitus that results from noise exposure or acoustic trauma generally presents or develops in most cases, as distinguished from how hearing loss and tinnitus develop from other causes, in determining the likelihood that current hearing loss and tinnitus were caused by noise exposure or acoustic trauma in service as opposed to some other cause. Therefore, the Board finds that a clarifying medical opinion is necessary to determine the nature and etiology of the Veteran's hearing loss and tinnitus. Furthermore, the Board notes that the examiner believes the Veteran exaggerated his responses, thereby rendering the hearing test conducted in March 2009 inadequate. However, a diagnosis of sensorineural hearing loss was nevertheless given for each ear at that time. There is no other audiological evaluation in the record, and therefore, the Board is unable to determine whether the Veteran meets the requirements of 38 C.F.R. § 3.385 as having manifested hearing loss that is disabling for VA purposes. On remand, the Board finds that the Veteran should be given another opportunity to undergo a hearing test. Finally, a decision on the claims for service connection could affect the outcome of the Veteran's claim for TDIU; therefore, the claims are inextricably intertwined. For this reason, the issues of entitlement to service connection must be resolved prior to resolution of the claim for TDIU. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (noting that the prohibition against the adjudication of claims that are inextricably intertwined is based upon the recognition that claims related to each other should not be subject to piecemeal decision-making or appellate litigation). Accordingly, a remand is required for the AOJ to adjudicate the inextricably intertwined issues. Accordingly, the case is REMANDED for the following action: 1. The RO/AMC should obtain any recent, outstanding treatment records. Any records obtained must be associated with the Veteran's claims folder. 2. The RO/AMC should afford the Veteran a VA examination to determine the nature and etiology of any hearing loss and tinnitus that may be present. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed, including the Maryland CNC test and a puretone audiometry test. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran's service treatment records, post-service medical records, and statements. It should be noted that the absence of in-service evidence of a hearing disability during service is not always fatal to a service connection claim. Evidence of a current hearing loss disability and a medically sound basis for attributing that disability to service may serve as a basis for a grant of service connection for hearing loss where there is credible evidence of acoustic trauma due to significant noise exposure in service, post-service audiometric findings meeting the regulatory requirements for hearing loss disability for VA purposes, and a medically sound basis upon which to attribute the post-service findings to the injury in service. The Veteran has contended that he had noise exposure in service. It should be noted that he is competent to attest to factual matters of which he had first-hand knowledge. If there is a medical basis to support or doubt the history provided by the appellant, the examiner should provide a fully reasoned explanation. The examiner should then state an opinion as to the likelihood (likely, unlikely, at least as likely as not) that any current hearing loss and tinnitus are causally or etiologically related to his military service, including noise exposure. He or she should also address whether the Veteran's tinnitus is caused or otherwise related to his hearing loss. In so doing, the examiner should discuss medically known or theoretical causes of hearing loss and tinnitus and describe how hearing loss and tinnitus which results from noise exposure generally present or develop in most cases, as distinguished from how hearing loss or tinnitus develops from other causes, in determining the likelihood that current hearing loss and tinnitus were caused by noise exposure in service as opposed to some other cause. 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, or in the alternative, the claims file, must be made available to the examiner for review. 3. After completing these actions, the RO/AMC should conduct any other development as may be indicated by a response received as a consequence of the actions taken in the preceding paragraphs. 4. Thereafter, the RO should consider all of the evidence of record, and readjudicate the service connection and TDIU issues on appeal. If the benefit sought is not granted, the RO should issue a Supplemental Statement of the Case and allow the Veteran and his representative an opportunity to respond. Thereafter, if indicated, the case should be returned to the Board for the purpose of appellate disposition. No action is required of the Veteran until he is otherwise notified by the RO. By this action, the Board intimates no opinion, legal or factual, as to any ultimate disposition warranted in this case. 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). ______________________________________________ JESSICA J. WILLS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs