Citation Nr: 1324780 Decision Date: 08/05/13 Archive Date: 08/13/13 DOCKET NO. 11-02 624 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for tinnitus. 3. Entitlement to a total disability rating for individual unemployability due to service-connected disability (TDIU). REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Jarrette A. Marley, Associate Counsel INTRODUCTION The Veteran had active service from July 1961 to June 1964. These matters come before the Board of Veterans' Appeals (Board) on appeal from an October 2009 rating decision by the Indianapolis, Indiana Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veterans Law Judge in a Travel Board hearing in May 2011; a transcript of the hearing is of record. In his December 2009 notice of disagreement, the Veteran stated that his service-connected bronchiectasis has worsened. As it appears the Veteran is raising the issue of entitlement to an increased rating for his bronchiectasis, but it 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. 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 In the October 2009 rating decision on appeal, the RO denied service connection for bilateral hearing loss and for tinnitus. In subsequent December 2009 correspondence, the Veteran expressed disagreement with the rating decision "on all counts of this denial." The Board accepts the Veteran's December 2009 correspondence as a notice of disagreement with the October 2009 rating decision with respect to the issues of service connection for bilateral hearing loss and tinnitus. See 38 C.F.R. § 20.201 (2012). However, the RO has not yet issued the Veteran a statement of the case (SOC) with respect to these issues. Under the circumstances, the Board has no discretion and is obliged to remand these issues to the RO for the issuance of a SOC. See Manlincon v. West, 12 Vet. App. 238, 240-41 (1999); Holland v. Gober, 10 Vet. App. 433, 436 (1997). At the May 2011 Travel Board hearing, the Veteran testified that he last received VA treatment in April 2011. The most recent VA treatment records are dated November 2010. Recent VA treatment records dating from November 2010 to the present should be requested on remand. 38 U.S.C.A. § 5103A(c); see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim). In addition, the Veteran testified at the May 2011 Travel Board hearing that he is receiving benefits from the Social Security Administration (SSA). He suggested, but it is not entirely clear, that the benefits he is receiving from SSA are likely based on age rather than disability. However, such matter should be clarified, and if he is in receipt of SSA disability benefits based on his service-connected bronchiectasis, such records should be obtained and placed in the paper or virtual claims file. See Golz v. Shinseki, 590 F.3d 1317, 1323 (Fed. Cir. 2010). Finally, on VA examination in 2009 the examiner indicated that the Veteran's bronchiectasis severely affects the Veteran's ability to perform sedentary and physical labor. The Veteran's nonservice-connected chronic obstructive pulmonary disease (COPD) was also referenced in this manner. His nonservice-connected knee disability was described as causing moderate impairment in his ability to perform sedentary or physical labor. Given the examiner's notation and references to the Veteran's nonservice-connected disabilities, without any indication of whether the symptoms from Veteran's COPD can be distinguished from the service-connected bronchiectasis, additional development is warranted. Accordingly, the case is REMANDED for the following action: 1. Issue the Veteran a SOC with respect to his claims of entitlement to service connection for bilateral hearing loss and tinnitus, to include notification of the need to timely file a substantive appeal to perfect his appeal on these issues. 2. Obtain copies of relevant VA treatment records dating since November 2010. 3. Ask the Veteran whether he is in receipt of Social Security benefits for disability (rather than age) and if so, whether the benefits are based on his bronchiectasis. If the Veteran indicates he is receiving Social Security disability benefits due to his bronchiectasis, or if he is unsure, all relevant administrative and medical records considered in the determination on the claim for SSA disability benefits should be requested from SSA. 4. Schedule the Veteran for a VA examination to determine whether his service connected bronchiectasis renders him unemployable. The claims folder should be reviewed by the examiner, and the examination report should note that review. The examiner should provide a complete rationale for all conclusions reached. The examiner should describe the overall impact of the Veteran's disability on his occupational functioning. Thereafter, the VA examiner should state whether it is at least as likely as not that the Veteran's service-connected bronchiectasis, without consideration of any nonservice-connected disabilities, render him unable to secure or follow a substantially gainful occupation. If the effects of the Veteran's nonservice-connected COPD cannot be distinguished from his service-connected bronchiectasis, the examiner should so state. Additionally, if service connection for bilateral hearing loss and tinnitus is granted, the examiner should consider the occupational impact those disabilities would have on the Veteran's ability to obtain and retain employment. 5. After completion of the above and any additional development deemed necessary, the issues on appeal should be reviewed with consideration of all applicable laws and regulations. Then readjudicate the appeal. If the benefits sought on appeal remain denied, the Veteran and his representative should be furnished a supplemental statement of the case and be given an opportunity to submit written or other argument in response before the claims file is returned to the Board for further appellate consideration. 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). CONTINUED ON THE NEXT PAGE 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). _________________________________________________ C. CRAWFORD 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).