Citation Nr: 1324289 Decision Date: 07/31/13 Archive Date: 08/07/13 DOCKET NO. 10-02 765 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Seattle, Washington THE ISSUES 1. Entitlement to an increased compensable rating for bilateral hearing loss. 2. Entitlement to a total disability rating based upon individual unemployability (TDIU). WITNESSES AT HEARING ON APPEAL Appellant and spouse ATTORNEY FOR THE BOARD R. Erdheim, Counsel INTRODUCTION The Veteran served on active duty from December 1960 to September 1964. This matter comes before the Board of Veterans' Appeals (Board) from an April 2008 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO) that denied the issue on appeal. The Veteran testified before the Board at a hearing held at the RO in March 2013. At the hearing, the Veteran stated that due to his hearing loss he had to resign from employment. The issue of entitlement to a TDIU was not certified for appeal. However, pursuant to Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009), such issue is considered "part and parcel" of an increased rating claim where evidence of unemployability is submitted during the course of an appeal. Therefore, the Board finds that the issue of entitlement to TDIU has been raised. 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 Additional development is necessary prior to further disposition of the claims. The RO denied the Veteran an increased rating for bilateral hearing loss based upon a February 2008 VA opinion. The RO interpreted the opinion to state that the Veteran's current hearing loss was due to a vascular or viral etiology and age degeneration and was not of a service-related etiology, and thus, a higher rating was not warranted. However, upon further review of the February 2008 opinion, as well as the record, the Board finds that the etiology of the Veteran's current hearing loss cannot be clearly distinguished. The Board notes that when it is not possible to separate the effects of service-connected and non-service-connected disabilities, such effects should be attributed to the service-connected disability. Mittleider v. West, 11 Vet. App. 181 (1998). The February 2008 VA examiner ultimately found that the Veteran's loss of hearing in 2006 was not clinically considered to be a "sudden loss," and was therefore gradual, and the VA examiner did not attribute the 2006 decrease to any specific etiology. The examiner reviewed the Veteran's medical history and found evidence of a gradual progression of loss in the high frequency range following service, with a much greater decrease in 2006. While the examiner did attribute the Veteran's tinnitus to another cause, presbycusis, the examiner did not separate the Veteran's service-connected hearing loss from his nonservice-connected hearing loss. At his hearing, the Veteran and his wife testified to the fact that the Veteran's hearing loss had been declining for many years. Such testimony comports with the record, which demonstrates that he has suffered from sensorineural hearing loss since service and has worn hearing aids since 1985. Thus, for the purposes of rating the Veteran's current hearing loss, the VA should consider all hearing loss as service-related. The most recent VA examination is dated in September 2007 and is thus considered to be stale. Moreover, the Veteran testified that the examination was deficient and has requested a new examination. Accordingly, a contemporaneous examination should be scheduled. The VA examination should also take into consideration the Veteran's contentions that his hearing loss has prevented him from obtaining or maintaining employment. Lastly, the Veteran has stated that he has received recent treatment for his hearing loss at the VA, and thus, complete VA records should be obtained. Accordingly, the case is REMANDED for the following actions: 1. Send the Veteran notice of the evidence necessary to substantiate a claim for TDIU. 2. Request that the Veteran identify any outstanding treatment records relevant to his claims for increased rating for bilateral hearing loss and for TDIU not already obtained. After securing any necessary authorization from him, obtain all identified treatment records, as well as any available VA treatment records dated during the appeal period. All reasonable attempts should be made to obtain such records. If any records cannot be obtained after reasonable efforts have been made, notify the Veteran and allow him the opportunity to provide such records. 3. Schedule the Veteran for a VA examination to ascertain the severity and current manifestations of his bilateral hearing loss. Any and all indicated evaluations, studies and tests deemed necessary by the examiner should be accomplished. The examiner should also provide an opinion as to whether the Veteran's bilateral hearing precludes the Veteran from obtaining or maintaining substantially gainful occupation. 4. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the Veteran's claims should be readjudicated based on the entirety of the evidence and in accordance with Mittleider v. West, 11 Vet. App. 181 (1998), as outlined above, specifically, considering all current hearing loss as service-connected. If the claims remain denied, the Veteran and his representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order. The Board intimates no opinion as to the outcome of this case. The Veteran need take no action until so informed. The purpose of this REMAND is to ensure compliance with due process considerations. 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). _________________________________________________ MILO H. HAWLEY 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).