Citation Nr: 1322735 Decision Date: 07/17/13 Archive Date: 07/24/13 DOCKET NO. 10-27 279 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to an evaluation in excess of 60 percent for bilateral hearing loss. 2. Entitlement to a total disability rating based upon individual unemployability due to service-connected disability (TDIU benefits). REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL Appellant and his spouse ATTORNEY FOR THE BOARD W. Yates, Counsel INTRODUCTION The Veteran served on active duty from February 1958 to February 1960. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2009 rating decision by a Department of Veterans Affairs (VA) Special Processing Unit in Cleveland, Ohio, known as the Tiger Team. Jurisdiction of the case was subsequently transferred to the Regional Office (RO) in St. Petersburg, Florida. The Veteran and his spouse testified at a June 2013 hearing held before the undersigned, and a transcript of this hearing has been added to the Veteran's claims file. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). The appeal is REMANDED to the RO via the Appeals Management Center in Washington, DC. VA will notify the appellant if further action is required. REMAND The Veteran is seeking an increased evaluation for his service-connected bilateral hearing loss; and entitlement to TDIU benefits. After reviewing the Veteran's claims file, the Board finds there is a further duty to assist the Veteran with his claims. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2012). In April 2009, the RO provided the Veteran with a VA audiological examination to determine the severity of his service-connected bilateral hearing loss. At the June 2013 hearing before the Board, the Veteran and his spouse testified that his bilateral hearing loss had worsened since the April 2009 examination was conducted. Accordingly, the RO must schedule the Veteran for a new examination to ascertain the current severity of his service-connected bilateral hearing loss. 38 C.F.R. § 3.159(c)(4)(i); see also Snuffer v. Gober, 10 Vet. App. 400, 403 (1997) (finding that a Veteran is entitled to a new examination after a two-year period between the last VA examination and the Veteran's contention that the pertinent disability had increased in severity); see also Green v. Derwinski, 1 Vet. App. 121, 124 (1991) (holding that VA's statutory duty to assist includes a thorough and contemporaneous medical examination). In April 2009, the Veteran filed an application for TDIU benefits, VA Form 21-8940, noting that he had stopped working due to throat cancer, a nonservice-connected disability. In July 2011, a private medical opinion letter was received from B.B., M.D., F.C.C.P. In the letter, Dr. B. opined that the Veteran was unemployable due to his hearing loss. Dr. B. failed to provide any rationale for the opinion provided. At the June 2013 hearing, the Veteran's representative argued that the April 2009 VA audiological examination failed to adequately address the Veteran's employability. Under these circumstances, the RO must attempt to locate any available updated treatment records and then obtain a medical opinion addressing whether the Veteran is unable to obtain or retain employment solely due to his service-connected bilateral hearing loss. 38 C.F.R. § 3.159(c)(4)(i); Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (if VA provides the Veteran with an examination in a service connection claim, the examination must be adequate); McLendon v. Nicholson, 20 Vet. App. 79 (2006). Accordingly, the case is REMANDED for the following action: 1. Ask the Veteran to identify all VA and non-VA medical care providers who have treated him for his service-connected bilateral hearing loss during the course of this appeal, including treatment provided by B.B., M.D., F.C.C.P. All attempts to secure this evidence must be documented in the claims file by the RO. 2. Schedule the Veteran for the appropriate examination to determine the severity of his service-connected bilateral hearing loss. The claims file (as well as all relevant Virtual VA records) must be made available to and reviewed by the examiner in conjunction with the examination. All pertinent symptomatology and findings must be reported in detail. Any indicated diagnostic tests and studies, to include an audiogram, must be accomplished. Specifically, the results of the audiological evaluation must state, in numbers, the findings of puretone decibel loss at 500, 1000, 2000, 3000, and 4000 Hertz; provide the puretone threshold average; and must also state the results of the word recognition test, in percentages, using the Maryland CNC test. The VA examiner must describe the functional effects of the Veteran's service-connected bilateral hearing loss. The examiner must also elicit from the Veteran and record for clinical purposes, a full work and educational history. Based on the review of the claims file, the examiner must provide an opinion as to whether the Veteran is unable to obtain or retain substantially gainful employment due solely to his service-connected disability, namely bilateral hearing loss. A complete rationale for all opinions expressed must be given. 3. Notify the Veteran that it is his responsibility to report for the scheduled examination, and to cooperate in the development of his claims. The consequences for failure to report for an examination without good cause may include denial of his claims. 38 C.F.R. §§ 3.158, 3.655 (2012). In the event that the Veteran does not report for the scheduled examination, documentation must be obtained and placed in the claims file which shows that notice scheduling the examination was sent to the last known address and whether any notice that was sent was returned as undeliverable. 4. The examination report must be reviewed to ensure that it is in complete compliance with the directives of this remand. If the report is deficient in any manner, the RO must implement corrective procedures. 5. After completing the above actions, and any other development as may be indicated, readjudicate the claims on appeal. If any claim remains denied, a supplemental statement of the case must be provided to the Veteran. After the Veteran has had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. 6. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is required. The appellant 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). _________________________________________________ L. M. BARNARD Acting 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).