Citation Nr: 1320888	
Decision Date: 06/28/13    Archive Date: 07/05/13

DOCKET NO.  09-18 006	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania


THE ISSUES

1.  Entitlement to an evaluation in excess of 10 percent for the left ear hearing loss, to include a total rating based on unemployability due to the disability.

2.  Entitlement to service connection for aphasia.


REPRESENTATION

Appellant represented by:	The American Legion


ATTORNEY FOR THE BOARD

M. Hannan, Counsel



INTRODUCTION

The Veteran had active service in the United States Army from July 1966 to July 1969, including approximately nine months in Vietnam; he was awarded the Combat Infantryman Badge (CIB) and the Purple Heart Medal.  This case comes before the Board of Veterans' Appeals (Board) on appeal from a September 2007 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Pittsburgh, Pennsylvania.  

In addition to the paper claims file, there is an electronic file (Virtual VA) associated with the claims.  Virtual VA does not currently contain any evidence pertinent to either claim that is not already included in the paper claims file.

The issue of entitlement to an evaluation in excess of 10 percent for the left ear hearing loss, to include a total rating based on unemployability due to the disability, is addressed in the REMAND that follows the ORDER section of this decision.

The issue of entitlement to service connection for tinnitus has been raised by the record (see reports of VA examinations dated in April 1970, May 1970, and August 2009), but that issue has not been adjudicated by the Agency of Original Jurisdiction (AOJ).  Therefore, the Board does not have jurisdiction over that issue, and the matter is referred to the AOJ for appropriate action.


FINDING OF FACT

The Veteran has aphasia related to an in-service claymore mine explosion.



CONCLUSION OF LAW

The criteria for service connection for aphasia have been met.  38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2012).


REASONS AND BASES FOR FINDING AND CONCLUSIONS

I.  Duties to Notify and Assist

As a preliminary matter, the Board notes that the Veteran has been provided all required notice, to include notice pertaining to the disability-rating and effective-date elements of his claim.  In addition, the evidence currently of record is sufficient to substantiate his claim.  Therefore, no further development is required under 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012) or 38 C.F.R. § 3.159 (2012).

II.  Legal Criteria

Entitlement to service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active duty.  38 U.S.C.A. § 1110; 38 C.F.R. § 3.303.  

Additionally, service connection may be granted for any disease initially diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service.  38 C.F.R. § 3.303(d). 

Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary.  When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.102 (2012); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).  

To deny a claim on its merits, the evidence must preponderate against the claim.  Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54.

III.  Factual Background and Analysis

The Veteran contends that service connection is warranted for aphasia because it is due to a traumatic brain injury that he incurred in combat in Vietnam.  He has indicated that he has problems with communication related to aphasia.  He maintains that his aphasia is related to the same in-service combat trauma that caused his left ear hearing loss.

Review of the Veteran's service treatment records reveals that he was hospitalized secondary to a claymore mine explosion in Vietnam in September 1967.  He initially had a complete aphasia as a result of the head injury from the mine explosion; this aphasia eventually resolved, but not completely.  The reports of VA examinations conducted in April and May of 1970, indicate that the Veteran was having difficulty understanding and pronouncing technical terms in his college courses.  He had to use a tape recorder and review the words several times.

The Veteran was afforded a VA medical examination in August 2009; the examiner noted the Veteran's in-service head trauma and resulting aphasia which continued, albeit in a less severe form, after his discharge from service.  The examiner stated that the Veteran was presently experiencing problems with receptive and expressive dysphasia.  The examiner further stated that with regard to communication, the Veteran's comprehension or expression or both of either spoken or written language was occasionally impaired.

The Board therefore finds that the results of the August 2009 VA examination are sufficient to establish current aphasia during the pendency of the claim.  The evidence of record is also sufficient to establish an etiologic nexus between the current aphasia and the in-service claymore mine explosion.

After consideration of the entire record and the relevant law, and with resolution of reasonable doubt in the Veteran's favor, the Board finds that service connection is warranted for aphasia.


ORDER

Service connection for aphasia is granted.


REMAND

In written argument submitted in June 2009, the Veteran's representative alleged that the Veteran's hearing loss, "has caused him to be unable to seek/or hold employment."   

The Board notes that a claim for a total rating based on individual unemployability (TDIU) has not been adjudicated by the RO.  According to the VA General Counsel, the question of TDIU entitlement may be considered as a component of an appealed increased rating claim if the TDIU claim is based solely upon the disability or disabilities which are the subject of the increased rating claim.  If the veteran asserts entitlement to a TDIU based in whole or in part on other service-connected disabilities which are not the subject of the appealed RO decision, the Board lacks jurisdiction over the TDIU claim except where appellate jurisdiction is assumed in order to grant a benefit, pursuant to 38 C.F.R. 19.13(a).  See VAOGCPREC 6-96.  

Since the representative has essentially contended that the Veteran is unemployable due to the hearing loss at issue in this appeal, the Board has jurisdiction over the TDIU aspect of the claim as well.

The record does not show that the Veteran has been provided appropriate notice in response to the TDIU aspect of the claim.  Moreover, the Veteran has not been provided a VA examination to determine the degree of severity of his hearing loss disability since June 2007 and the report of the June 2007 examination does not provide an adequate assessment of the effects of the hearing loss disability on the Veteran's occupational functioning.  See Martinak v. Nicholson, 21 Vet. App. 447, 455 (2007).  Therefore, further development of the record is required before Board decides the hearing loss claim.

The Board further notes that after the representative submitted the written argument in August 2009, the Veteran was granted service connection and a 40 percent rating for traumatic brain injury.  While the case is in remand status, the originating agency should clarify whether the Veteran is also claiming to be unemployable due to combination of his hearing loss and traumatic brain injury and should respond appropriately to any such clarification.

Accordingly, this case is REMANDED to the RO or the Appeals Management Center (AMC), in Washington, D.C., for the following actions:

1.  The Veteran should be provided all required notice in response to the claim for a TDIU due to the service-connected hearing loss.  He should be requested to clarify whether he is also claiming to be unemployable to the combined effects of his hearing loss and traumatic brain injury.  In addition, he should be provided and requested to complete the appropriate form to claim entitlement to a TDIU.  

2.  The RO or the AMC should undertake appropriate development to obtain a copy of any outstanding records pertinent to the Veteran's claim.

3.  Then, the Veteran should be afforded a VA examination to determine the nature and extent of his hearing impairment in each ear.  The claims folder and any pertinent evidence in Virtual VA that is not contained in the claims folder should be made available to and reviewed by the examiner.  

The RO or the AMC should ensure that the examiner provides all information required for rating purposes, to include an assessment of the effects of the disability on daily activities and occupational functioning.  

In addition, the examiner must provide an opinion as to whether the Veteran's bilateral hearing loss impairment is sufficient by itself to render the Veteran unemployable.  The rationale for all opinions expressed must also be provided.

4.  The RO or the AMC should also undertake any other development it determines to be warranted.

5.  Then, the RO or the AMC should readjudicate the issue on appeal.  If the benefit sought on appeal is not granted to the Veteran's satisfaction, a Supplemental Statement of the Case should be issued, and the Veteran and his representative should be afforded the requisite opportunity to respond.

6.  If appropriate, the issue of entitlement to a TDIU based on the hearing loss disability and traumatic brain injury should be adjudicated, and the Veteran should be informed of his appellate rights with respect to the decision.

By this remand the Board intimates no opinion as to any final outcome warranted.  

No action is required of the Veteran until he is otherwise notified but he has the right to submit additional evidence and argument on the matter the Board has remanded.  See Kutscherousky v. West, 12 Vet. App. 369 (1999).

This case 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).



_________________________________________________
Shane A. Durkin
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs