Citation Nr: 1319341 Decision Date: 06/14/13 Archive Date: 06/21/13 DOCKET NO. 09-18 239 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUES 1. Entitlement to an increased evaluation for bilateral hearing loss, currently evaluated as 50 percent disabling. 2. Entitlement to a total evaluation based upon individual unemployability due to service-connected disability (TDIU). REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL The Veteran and his daughter ATTORNEY FOR THE BOARD K. Osegueda, Associate Counsel INTRODUCTION The Veteran served on active duty from April 1974 to July 1975. This matter comes before the Board of Veterans' Appeals (Board) from an August 2008 rating decision of the Department of Veterans Affairs (VA), Regional Office (RO) in Indianapolis, Indiana. In that rating decision, the RO denied an increased evaluation for the service-connected bilateral hearing loss and continued a 50 percent disability rating. In September 2009, the Veteran testified before a Decision Review Officer (DRO) at hearing at the RO. A transcript of the hearing is of record. After the RO issued a January 2010 Supplemental Statement of the Case (SSOC), in October 2010, the Veteran was afforded a VA examination to evaluate the severity of his service-connected hearing loss. The Board notes that evidence received after the date of receipt of the substantive appeal is subject to initial review by the Board. See 38 U.S.C. § 7105. Nevertheless, in May 2011 and December 2011, the Veteran submitted additional statements waiving jurisdictional review by the RO in the first instance pertaining to the October 2010 VA examination report and any evidence in the claims file that was not previously considered by the RO. 38 C.F.R. § 20.1304(c). The Board recognizes that throughout the appeal, the Veteran has intimated that he warrants an increased evaluation for his service-connected tinnitus, currently evaluated as 10 percent disabling. While the issue was not certified on appeal to the Board, the Board notes that the Veteran has been assigned the maximum schedular rating available for tinnitus. 38 C.F.R. §4.87, Diagnostic Code 6260. As there is no legal basis upon which to award an increased schedular evaluation for tinnitus, the issue is not being referred to the RO for further action. In addition to the paper claims file, there is a Virtual VA paperless claims file associated with the Veteran's claim. A review of the documents in such file reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issue on appeal. 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 law provides that VA shall make reasonable efforts to notify a claimant of the evidence necessary to substantiate a claim and requires VA to assist a claimant in obtaining that evidence. 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159. Such assistance includes providing the claimant a medical examination or obtaining a medical opinion when such an examination or opinion is necessary to make a decision on a claim. 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159; see also Green v. Derwinski, 1 Vet. App. 121, 124 (1991) (VA has a duty to provide a veteran with a thorough and contemporaneous medical examination); Caffrey v. Brown, 6 Vet. App. 377, 381 (1994) (an examination too remote for rating purposes cannot be considered "contemporaneous"). In this case, the Veteran's was last provided a VA examination in connection with his current claim for an increased evaluation for his service-connected hearing loss in October 2010, which would have been over two years ago. Since that examination, the Veteran has alleged that his symptoms have increased in severity. Specifically, in an April 2011 VA treatment note, the Veteran requested an increase in the overall gain in his binaural hearing aids. The examiner noted that the Veteran was within the range that he was now eligible for a cochlear implant. While the Veteran denied an evaluation for a cochlear implant, he did request more powerful hearing aids. Such evidence suggests a possible increase in severity since the October 2010 VA examination. VA's General Counsel has indicated that when a claimant asserts that the severity of a disability has increased since the most recent rating examination, an additional examination is appropriate. VAOPGCPREC 11-95 (April 7, 1995); see also Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994). Therefore, the Board finds that a VA examination is necessary for the purpose of ascertaining the current severity and manifestations of the Veteran's service-connected hearing loss disability. The Court has held that, 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 total rating based on individual unemployability (TDIU) as a result of that disability is warranted. Rice v. Shinseki, 22 Vet. App. 447 (2009). While the Board notes that the RO previously determined that the Veteran was not entitled to TDIU based on his service-connected bilateral hearing loss and tinnitus and the Veteran did not appeal the December 2009 rating decision, new evidence raises the question as to whether the service-connected disabilities impacted the Veteran's employability. Specifically, in the October 2010 VA examination, the examiner opined that the Veteran's hearing loss disability had a profound impact on his daily activities. Therefore, the RO should develop a claim for TDIU in accordance with Rice v. Shinseki, 22 Vet. App. 447 (2009). Accordingly, the case is REMANDED for the following action: 1. The RO/AMC should ascertain if the Veteran received any VA, non-VA, or other medical treatment that is not evidenced by the current record, to specifically include any VA treatment records not associated with the record. The RO/AMC must provide the Veteran with authorization forms for the release of any identified outstanding private treatment records. The RO/AMC must then obtain these records, as well as any other pertinent records, and associate them with the claims folder. If the search for such records has negative results, the claims file must be properly documented as to the unavailability of those records. Additionally, the RO/AMC must inform the Veteran and provide him an opportunity to submit copies of the outstanding medical records. 2. After completing the preceding development, the Veteran should be afforded a VA audiological examination to ascertain the current severity and manifestations of his service-connected hearing loss. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the claims file and to comment on the severity of the Veteran's service-connected hearing loss. The examiner should report all signs and symptoms necessary for rating the Veteran's hearing loss disability under the rating criteria. The examiner should also provide an opinion with respect to the October 2010 VA examiner's findings that speech recognition scores were 0 percent bilaterally whereas speech reception thresholds (Spondee thresholds) were 100 in the right ear and 90 in the left ear. The examiner's attention is drawn to a September 2009 VA examination report which noted speech recognition scores of 90 percent in the right ear and 80 percent in the left ear, and the examiner's opinion that the testing responses were "strongly suggestive of pseuohypacusis." The examiner's attention is also drawn to the July 2008 and June 2009 VA examination reports. The examiner is requested to provide an opinion as to the reliability of the Veteran's speech recognition scores on examination and in previous examinations. Specifically, in the July 2008 VA examination report, the VA examiner found the Veteran's speech recognition scores "unreliable" for both ears due to "inconsistent and unlikely responses to speech stimuli." In the June 2009 report, she noted that speech recognition scores were not obtained because the Veteran reported that he was unable to hear speech sounds due to his tinnitus. She also reported, "Exhaustive attempts to obtain speech reception thresholds were conducted. Veteran was observed to be unresponsive except with unlikely responses to 100 dBHL live voice spondee presentations." The examiner's attention is also drawn to an October 2010 VA otolaryngology note, in which the examiner noted that the Veteran had significant asymmetry in his hearing loss and the conductive component of the loss, coupled with type B tympanograms, "in a fairly young male patient brought otosclerosis into question." The examiner is also requested to provide a medical opinion as to the effect of the Veteran's service-connected hearing loss on his employability. The examiner's attention is drawn to the October 2010 VA examiner's opinion that the Veteran's hearing loss was "having a profound impact on his daily activities." 3. The RO/AMC must consider whether referral of the Veteran's claim to the Chief Benefits Director or the Director of Compensation and Pension Service for consideration of an extraschedular rating for the service-connected hearing loss and tinnitus disabilities is appropriate. If so, the RO/AMC should take appropriate action. 4. The RO/AMC should also consider whether the Veteran is entitled to TDIU under the provisions of 38 C.F.R. § 4.16, based on impairment attributable to his service-connected disabilities, in accordance with Rice v. Shinseki, 22 Vet. App. 447 (2009). In so doing, the RO/AMC may decide to pursue further development of the Veteran's employment history or to obtain additional medical evidence or medical opinion, as is deemed necessary. 5. If any benefit sought on appeal remains denied, the Veteran and his representative should be furnished a Supplemental Statement of the Case. Thereafter, if indicated, the case should be returned to the Board for the purpose of appellate disposition. 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. 2012). _________________________________________________ CHERYL L. MASON 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).