Citation Nr: 1320565 Decision Date: 06/26/13 Archive Date: 07/05/13 DOCKET NO. 09-48 310 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Albuquerque, New Mexico THE ISSUES 1. Entitlement to disability rating greater than 50 percent for service-connected posttraumatic stress disorder (PTSD). 2. Entitlement to an initial compensable disability rating for service-connected bilateral hearing loss. 3. Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Patrick J. Costello, Counsel INTRODUCTION The appellant was on active duty in the United States Marine Corps from April 1966 to February 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2008 rating determination of the Department of Veterans Affairs (VA), Regional Office (RO), in Albuquerque, New Mexico. In that action, the RO denied the appellant's claim for an increased disability rating for his PTSD; and granted service connection for bilateral hearing loss, assigning an initial noncompensable disability rating. The appellant has appealed that action claiming that both disorders should be assigned higher disability ratings. The issue of entitlement to service connection for tinnitus has been raised by the record via a statement that was provided by the appellant in December 2009. However, this issue has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. In correspondence received in February 2008, the appellant indicated that he was no longer able to work due to the severity of his service-connected disabilities. As such, the Board must consider whether a TDIU is warranted. In Rice v. Shinseki, 22 Vet. App. 447 (2009), the United States Court of Appeals for Veterans Claims (Court) held that a TDIU claim is part of an increased disability rating claim when such claim is raised by the record. The Court further held that when evidence of unemployability is submitted at the same time that the appellant is appealing the rating assigned for a disability, the claim for TDIU will be considered part and parcel of the claim for benefits for the underlying disability. Id. Therefore, the issue is included among those currently before the Board. In addition to the paper claims file, there is a Virtual VA paperless claims file associated with the appellant'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 issues on appeal. The issues of entitlement to an initial compensable disability rating for bilateral hearing loss and to a TDIU are addressed in the REMAND portion of the decision below and this issue is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT The appellant's service-connected psychiatric disability causes deficiencies in most of the areas of work, school, family relations, judgment thinking and mood, but is not productive of total occupational and social impairment. CONCLUSION OF LAW The criteria for a 70 percent disability rating for PTSD have been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.321, 4.1-4.14, 4.125-4.130, Diagnostic Code 9411 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION VA's Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's 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). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2012); 38 C.F.R. § 3.159(b) (2012); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant should provide in accordance with 38 C.F.R. § 3.159(b)(1). VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004); see also Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F. 3d 1328 (Fed. Cir. 2006). The Board finds that the Agency of Original Jurisdiction (AOJ) has substantially satisfied the duties to notify and assist, as required by the VCAA. To the extent that there may be any deficiency of notice or assistance, there is no prejudice to the appellant proceeding with this issue involving PTSD given the favorable nature of the Board's decision. The Board would add that in conjunction with his claim for benefits, the appellant's paperless Virtual VA claims file has been reviewed. Virtual VA claims files are a highly secured electronic repository that is used to store and review documents involved in the claims process, and it is noted that there are no additional documents in the Virtual VA file not already contained in the paper claims file. Increased disability ratings Disability ratings are intended to compensate impairment in earning capacity due to a service-connected disorder. 38 U.S.C.A. § 1155. Separate diagnostic codes identify the various disabilities. Id. It is necessary to rate the disability from the point of view of the Veteran working or seeking work, 38 C.F.R. § 4.2, and to resolve any reasonable doubt regarding the extent of the disability in the Veteran's favor. 38 C.F.R. § 4.3. If there is a question as to which disability rating to apply to the Veteran's disability, the higher rating will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 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 (2012). 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 (2012); Peyton v. Derwinski, 1 Vet. App. 282 (1991). While the Veteran's entire history is reviewed when assigning a disability rating, 38 C.F.R. § 4.1, where service connection has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). Additionally, in determining the present level of a disability for any increased rating claim, the Board must consider the application of staged ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). In other words, where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, the assignment of staged ratings would be necessary. The assignment of a particular diagnostic code is "completely dependent 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 a diagnostic code by VA must be specifically explained. Pernorio v. Derwinski, 2 Vet. App. 625 (1992). Words such as "moderate," "moderately severe," and "severe" are not defined in the Rating Schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are "equitable and just." 38 C.F.R. 4.6 (2012). Use of terminology such as "severe" by VA examiners and others, although evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6 (2012). It is possible for a Veteran to have separate and distinct manifestations from the same injury that would permit rating under several diagnostic codes; however, the critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the conditions is duplicative or overlapping with the symptomatology of the other condition. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994); 38 C.F.R. § 4.14 (2012) (precluding the assignment of separate ratings for the same manifestations of a disability under different diagnoses). In determining whether an increased disability rating is warranted, the VA must determine whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether the preponderance of the evidence is against the claim, in which case an increased rating must be denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Veteran's service-connected PTSD is currently rated 50 percent disabling pursuant to 38 C.F.R. § 4.130, Diagnostic Code 9411 (2012). PTSD is rated under the General Rating Formula for Mental Disorders, which provides that: A 100 percent disability rating is warranted if there is total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; gross inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation or own name. A 70 percent disability rating is warranted when there is occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a worklike setting); inability to establish and maintain effective relationships. A 50 percent disability rating is warranted for occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory (e.g. retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships. Id. The symptoms recited in the criteria in the rating schedule for evaluating mental disorders are "not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating." Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). In adjudicating a claim for an increased disability rating, the adjudicator must consider all symptoms of a claimant's service-connected mental condition that affect the level of occupational or social impairment. Id. at 443. The Global Assessment of Functioning (GAF) is a scale reflecting the psychological, social, and occupational functioning on a hypothetical continuum of mental-health illness. Richard v. Brown, 9 Vet. App. 266, 267 (1996), citing Diagnostic and Statistical Manual of Mental Disorders (4th ed. 1994); 38 C.F.R. § 4.125 (2011). An examiner's classification of the level of psychiatric impairment, by GAF score, is to be considered but is not determinative of the percentage rating to be assigned. VAOPGCPREC 10-95. A GAF of 31 to 40 is defined as exhibiting some impairment in reality testing or communication (e.g., speech is at times illogical, obscure, or irrelevant) or any major impairment in several areas, such as work or school, family relations, judgment, thinking or mood (e.g., depressed man avoids friends, neglects family, and is unable to work; child frequently beats up younger children, is defiant at home, and is failing at school). A GAF of 41 to 50 is defined as serious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifter) or any serious impairment in social, occupational, or school functioning (e.g., no friends, unable to keep a job). A GAF of 51 to 60 is defined as moderate symptoms (e.g., flat affect and circumstantial speech, occasional panic attacks) or moderate difficulty in social, occupational, or school functioning (e.g., few friends, conflicts with peers or co-workers). See 38 C.F.R. § 4.130 (2012) [incorporating by reference the VA's adoption of the DSM-IV, for rating purposes]. The appellant originally applied for VA compensation for PTSD in March 2004. The appellant averred that he was then suffering from a psychiatric disorder that was caused by or the result of his active service and the stressors that he endured while stationed in the Republic of South Vietnam with the United States Marine Corps. After the appellant's service in Vietnam was confirmed, he was scheduled for a VA psychiatric examination. Such PTSD-specific examination was accomplished in September 2005. Prior to the examination, the appellant reported sleep disturbance with nightmares, hypervigilance, and an increased startle response. He also stated that he suffered from depression, anxiety, panic attacks, and anger management issues. It was noted in the examination report that the appellant had very little social contact with others, and that he complained of memory and concentration problems. The record indicated that he was not seeking treatment at that time and while he was not working, he was retired from his previous place of employment. When examined, the examiner reported the following: . . . His affect depressed and anxious, mood depressed and anxious. Speech coherent, thought processes linear. Content of thought, no evidence of a psychosis, no loosening of associations. No suicidal, homicidal, or paranoid ideation evidence. Sensorium and intellect, oriented x4. Good recent and remote memory. Good recall. Cognitive functions grossly intact. Insight and judgment fair to good. It is felt he is competent to manage his own funds. A diagnosis of PTSD was given; a GAF score of 55 was assigned. The results of the medical examination along with other records contained in the claims file were then reviewed by the RO. Upon completion of said review, the RO granted service connection for PTSD and assigned an initial 50 percent disability rating, effective March 12, 2004. Approximately four years later, in the late winter of 2008, the appellant submitted a claim for an increased disability rating. The Board notes that in Buie v. Shinseki, 24 Vet. App. 242 (2010), the Court held that even in increased rating claims, when VA receives a submission of new and material evidence within one year of a rating decision addressing the condition, 38 C.F.R. § 3.156(b) (2012) requires any subsequent decision to relate back to the original claim. Id. at 251-52; see also Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011). A review of the appellant's claims file reveals that following the issuance of the December 2005 rating decision, there is no evidence received within one year which relates to the service-connected PTSD. Thus, with respect to the appellant's claim seeking an increased disability rating, the November 2008 rating action is the proper rating decision on appeal. Prior to making any determination on the appellant's claim, the RO obtained and included in the appellant's claims file his medical treatment records from 2005 to 2008. The appellant then underwent a VA psychiatric examination in June 2008. Prior to the examination, the appellant informed the examiner that he did not have close friends, and that his relationships with his two sons ranged from good to being strained. He stated that he had a girlfriend who he saw frequently, and that he played golf with others twice a week. During the examination, it was noted that his affect was constricted, and his mood anxious and agitated. His thought process and content were unremarkable, and he was not delusional. He had mild insomnia with occasional nightmares but did not suffer from hallucinations or inappropriate behavior. He was found to have obsessive/ritualistic behavior, and he experienced panic attacks along with homicidal thoughts. Impulse control was "fair," and he had anger management control issues. Nevertheless, he was able to maintain minimum personal hygiene but sometimes experienced severe lethargy such that he would neglect certain aspects of his activities of daily living. The appellant's recent memory was found to be mildly impaired whereas his immediate memory was found to be moderately impaired. The examiner classified the severity of the appellant's PTSD symptoms as moderate to severe. The other symptoms noted included isolation, anger, irritability, disturbed sleep, isolation, hypervigilance, and restricted range of affect. A GAF score of 38 was assigned. Following the examination, the appellant submitted a private psychologist's assessment of the appellant's mental disability dated in June 2008. Many of the symptoms reported by the VA health care provider were noted by the private psychologist. These included depression, irritability, difficulty sleeping, and social isolation. The private examiner assigned a GAF score of 43 indicating that there was major impairment in social, interpersonal, and vocational functioning. A lay statement from a friend of the appellant received in November 2009 shows that he was said to have difficulty adapting to loud noises and being around people. It was further stated that the appellant was very negative in his outlook, and that he would start arguments/fights with others over slights and mere comments. It was also indicated that the appellant seemed to be always depressed. A VA medical record dated in November 2009 shows that the appellant was receiving group therapy and focusing on controlling his anger towards others. The medical evidence, private and VA, shows assignment of GAF scores ranging from 38 to 43. In evaluating the appellant's disability, the Board is mindful that when it is not possible to separate the effects of the service-connected condition from a non-service-connected condition, 38 C.F.R. § 4.3, which requires that reasonable doubt be resolved in the appellant's favor, dictates that such signs and symptoms be attributed to the service-connected condition. See Mittleider v. West, 11 Vet. App. 181 (1998). In Mittleider, the Veteran had been diagnosed with PTSD and various personality disorders and there was no medical evidence in the record separating the effects of the service-connected disability from the nonservice-connected disorders. Id. at 182. The Board finds this case is not distinguishable from Mittleider in that the medical evidence of record does not distinguish the symptoms that have been produced by the appellant's PTSD and the other psychiatric manifestations that may be attributable to a non-service-connected disorder. Accordingly, all psychiatric signs and symptoms will be considered herein. Upon reviewing the record, it is the conclusion of the Board that the evidence does support a disability rating of 70 percent, but no higher, for PTSD. The evidence shows that the appellant has depression, great anger-management problems, sleep deprivation, hypervigilance, nightmares, and irritability. The appellant has minimal social contact with others and even with those that he does have contact with, he is not close to those people and he tends to fight with those individuals. The record further indicates that the appellant suffers at least some, if minimal, memory loss and has depression, insomnia, intrusive thoughts, anxiety, and anger outbursts. In addition, the GAF scores of recent examinations have been in the range of 38 to 43 indicating serious symptoms. Although the entire record is not without some measure of ambiguity, the Board concludes that the totality of the evidence in the file appears to be at least in approximate balance. It is the conclusion of the Board that the appellant's overall disability picture indicates that a 70 percent disability rating should be assigned for PTSD from the date on which the Veteran submitted his claim. 38 C.F.R. § 4.7 (2012). Hence, the appellant's claim is granted. However, it is also the conclusion of the Board that the evidence does not support a disability rating in excess of 70 percent. The appellant's PTSD is not productive of total occupational and social impairment. He does not have gross impairment in thought processes or communication. While he was noted to occasionally have a circumstantial thought process, the remainder of the evidence shows that he does not have gross impairment in thought process. In addition, no deficits have been noted with respect to the appellant's speech and communication skills. The appellant does not suffer from persistent delusions. His behavior is not grossly inappropriate. The appellant does not report nor is he assessed as being in persistent danger of seriously hurting himself or others. It was noted that he is verbally abusive to others but he did not appear to be at risk of self-harm. He is able to perform activities of daily living, including maintenance of minimal personal hygiene. The appellant was and is oriented to time, person, and place. While the appellant may have occasional memory impairment, he does not have memory loss for the names of relatives, his previous activities, or his own name. None of the various VA or private health care providers who have provided treatment to the appellant or who have examined him in conjunction with this claim has concluded that he has total occupational and social impairment due to PTSD. Moreover, while the appellant does not socialize, he does have a relationship with his girlfriend and one of his sons. He also plays golf with others. Accordingly, total social impairment is not shown. While the medical evidence hints that the appellant's PTSD may inhibit his ability to obtain and maintain gainful employment, those same records suggest that the appellant could work where he did not have contact with others. Additionally, as previously noted, none of the records show that the appellant is totally socially impaired. Accordingly, the Board concludes that the criteria for a 100 percent rating are not met. The Board has considered the statements of the appellant as to the extent of his current symptoms. He is certainly competent to report that his symptoms are worse. Layno v. Brown, 6 Vet. App. 465, 470 (1994). However, in evaluating a claim for an increased schedular rating, VA must consider the factors as enumerated in the rating criteria discussed above, which in part involves the examination of clinical data gathered by competent medical professionals. The Board has considered whether it is appropriate to assigned "staged ratings," in accordance with Fenderson, supra. However, the Board finds that the medical evidence demonstrates more consistently and throughout the appeal that the appellant meets the criteria for a 70 percent disability rating from the date of his claim. However, at no point in time is it shown that there is total occupational and social impairment such that a total rating should be assigned for some distinct period of time. Therefore, the assignment of staged disability ratings in this case is not necessary. Extra-schedular Consideration Finally, the Board finds that the appellant's PTSD does not warrant referral for extra-schedular consideration. In exceptional cases where schedular ratings are found to be inadequate, consideration of an extra-schedular disability rating is made. 38 C.F.R. § 3.321(b)(1). There is a three-step analysis for determining whether an extra-schedular disability rating is appropriate. Thun v. Peake, 22 Vet. App. 111 (2008). First, there must be a comparison between the level of severity and symptomatology of the appellant's service-connected disability and the established criteria found in the rating schedule to determine whether the appellant's disability picture is adequately contemplated by the rating schedule. Id. If not, the second step is to determine whether the claimant's exceptional disability picture exhibits other related factors identified in the regulations as "governing norms." Id.; see also 38 C.F.R. § 3.321(b)(1) (governing norms include marked interference with employment and frequent periods of hospitalization). If the factors of step two are found to exist, the third step is to refer the case to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for a determination whether, to accord justice, the claimant's disability picture requires the assignment of an extra-schedular rating. Id. The Board finds that the evidence does not warrant referral of the appellant's claim for extra-schedular consideration. The level of severity of the appellant's PTSD is adequately contemplated by the applicable diagnostic criteria. The criteria provide for a higher rating, but as has been thoroughly discussed above, the rating assigned herein is appropriate. In this regard, as a result of this decision, the PTSD has been awarded an increased disability rating of 70 percent. In view of the adequacy of the disability rating assigned under the applicable diagnostic criteria, consideration of the second step under Thun is not for application in this case. Accordingly, the claim will not be referred for extra-schedular consideration. ORDER A 70 percent disability rating for service-connected PTSD is granted, subject to the regulations governing the disbursement of monetary benefits. REMAND Unfortunately, a remand is required in this case as to the issues of an increased disability rating for bilateral hearing loss and entitlement to a TDIU. Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the appellant's claims so that he is afforded every possible consideration. VA has a duty to make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A(a) (West 2002 & Supp. 2012); 38 C.F.R. § 3.159(c), (d) (2012). With regard to the issue of entitlement to a compensable disability rating for bilateral hearing loss, the appellant has averred that since last being evaluated by VA personnel in April 2008, his hearing loss disability has become more severe. Pursuant to VA's duty to assist, VA will provide a medical examination or obtain a medical opinion based upon a review of the evidence of record if VA determines it is necessary to decide the claim. 38 C.F.R. § 3.159(c)(4)(i) (2012). The Court has held that when an appellant alleges that his/her service-connected disability has worsened since the last examination, a new examination may be required to evaluate the current degree of impairment. See Snuffer v. Gober, 10 Vet. App. 400, 403 (1997) (an appellant is entitled to a new examination after a two-year period between the last VA examination and the appellant's contention that the pertinent disability has increased in severity). The Court has held that when an appellant claims that a disability is worse than when originally rated, and the available evidence is too old to adequately evaluate the current state of the condition, VA must provide a new examination. See Olsen v. Principi, 3 Vet. App. 480, 482 (1992), citing Proscelle v. Derwinski, 2 Vet. App. 629, 632 (1992). In this instance, the most recent complete audiological examination of the appellant occurred over five years ago. Hence, under the circumstances, the Board is of the opinion that the five year old examination is stale and a VA examination should be scheduled to determine the current extent of symptomatology and status of the service-connected bilateral hearing loss disability. Additionally, as noted above, the appellant has suggested that he was unable to work full time due to his service-connected disabilities. In Rice, the Court held that a claim for a TDIU is part of an increased disability rating claim when such claim is raised by the record. When a determination on one issue could have a significant impact on the outcome of another issue, such issues are considered inextricably intertwined, and VA is required to decide those issues together. Harris v. Derwinski, 1 Vet. App. 180 (1991). Thus, adjudication of the TDIU claim will be held in abeyance pending the aforestated development and adjudication of the appellant's claim being remanded. Also, because the claim is being returned for additional development, copies of any available VA, private, and other federal medical treatment records currently not of record should be obtained and incorporated in the claims file. It is important to note that records generated by VA facilities (or at other federal facilities) that may have an impact on the adjudication of a claim are considered constructively in the possession of VA adjudicators during the consideration of that claim, regardless of whether those records are physically on file. See Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). Hence, these treatment records should be associated with the claims file. The actions identified herein is consistent with the duties imposed by the VCAA. However, identification of specific action requested on remand does not relieve the AOJ of the responsibility to ensure full compliance with the VCAA and its implementing regulations. Hence, in addition to the actions requested above, the AOJ should also undertake any other development and/or notification action deemed warranted by the VCAA prior to adjudicating the claim on appeal. Accordingly, the case is REMANDED for the following action: 1. The RO/AMC must review once again the entire claims file and ensure that all notification and development necessary to comply with 38 U.S.C.A. § 5103A (West 2002 & Supp. 2012) and 38 C.F.R. § 3.159 (2012) are fully complied with and satisfied as to the issues on appeal. The claims file must include documentation that there has been compliance with the VA's duties to notify and assist a claimant as set forth in the VCAA as specifically affecting the remaining issue on appeal. 2. The RO/AMC shall contact the appellant and ask that he identify all sources of medical treatment received from January 2009 to the present for the disability involved in the claim now on appeal, and to furnish signed authorizations for release to the VA of private medical records in connection with each non-VA source identified. Copies of the medical records from all sources, including VA records, (not already in the claims file) should then be requested. Any response received should be memorialized in the appellant's claims file. All records obtained should be added to the claims file. If requests for any private or non-VA government treatment records are not successful, the RO/AMC should inform the appellant of the nonresponse so that he will have an opportunity to obtain and submit the records himself, in keeping with his responsibility to submit evidence in support of his claim. See 38 C.F.R. § 3.159 (2012). 3. After all of the appellant's private and VA medical records have been obtained and included in the claims file for review, the RO/AMC shall schedule the appellant for a VA audiological examination. The purpose of the examination is to obtain medical evidence that provides an indication as to the severity of the appellant's bilateral hearing loss disorder. The complete claims file and this remand are to be made available to the examiner before the examination, and the examiner must indicate that he or she has reviewed the claims file. The examiner must afford the appellant an audiometric evaluation in accordance with the criteria delineated in 38 C.F.R. § 4.85 and should include testing of pure tone criteria at 1,000, 2,000, 3,000, and 4,000 Hertz and speech recognition scores using the Maryland CNC Test. The examiner must also address whether the bilateral hearing loss has any effect on appellant's ability to work and identify the impairments in daily life caused by the hearing loss. See Martinak v. Nicholson, 21 Vet. App. 447, 455 (2007). The examiner must provide a rationale for all opinions and conclusions, citing the objective medical findings leading to the examiner's conclusions. 4. The RO/AMC shall review the claims file and ensure that all of the foregoing development actions have been conducted and completed in full. If any development is incomplete, appropriate corrective action is to be implemented. Specific attention is directed to the report of examination. If the requested report does not include fully detailed descriptions of pathology and all test reports, special studies or adequate responses to the specific opinions requested, the report must be returned for corrective action. 38 C.F.R. § 4.2 (2012); see also Stegall v. West, 11 Vet. App. 268 (1998). 5. After conducting all additional development requested, the RO/AMC should readjudicate the issues on appeal, to include entitlement to a TDIU. If the benefits sought on appeal remain denied, the appellant and his accredited representative should be provided a Supplemental Statement of the Case containing notice of all relevant actions taken on the claim for benefits, to include a summary of the evidence and applicable law and regulations considered pertinent to the issue currently on appeal. An appropriate period of time should be allowed for response. Thereafter, the case should be returned to the Board, if in order. The Board intimates no opinion as to the ultimate outcome of this case. The appellant need take no action unless otherwise notified. The purpose of the examination requested in this remand is to obtain information or evidence (or both), which may be dispositive of the appeal. Therefore, the appellant is hereby placed on notice that pursuant to 38 C.F.R. § 3.655 (2012) failure to cooperate by attending the requested VA examination may result in an adverse determination. See Connolly v. Derwinski, 1 Vet. App. 566, 569 (1991). 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). ______________________________________________ DEMETRIOS G. ORFANOUDIS Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs