Citation Nr: 1326041 Decision Date: 08/16/13 Archive Date: 08/26/13 DOCKET NO. 09-12 525 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to a rating in excess of 20 percent from November 13, 2007 to July 15, 2010, and a rating in excess of 40 percent from July 16, 2010, for bilateral hearing loss. 2. Entitlement to a total disability rating based on individual unemployabilty (TDIU) due to service-connected disabilities. REPRESENTATION Veteran represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD E. Pomeranz, Counsel INTRODUCTION The Veteran had active service from January 1963 to January 1967. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a January 2008 rating action by the Department of Veterans Affairs (VA) Regional Office (RO) located in Houston, Texas, wherein the RO increased the disability rating for the Veteran's service-connected bilateral hearing loss from noncompensable to 20 percent disabling, effective from November 13, 2007, the day the Veteran filed a claim for an increased rating. The Veteran disagreed with the 20 percent rating and subsequently filed a timely appeal. See Hart v. Mansfield, 21 Vet. App. 505 (2007). In a February 2011 rating action, the RO increased the disability rating for the Veteran's service-connected bilateral hearing loss from 20 percent to 40 percent disabling, effective from July 16, 2010, the day of a VA examination which showed an increase in the severity of the bilateral hearing loss. The issue has therefore been recharacterized accordingly on the title page. The Veteran testified at a Travel Board hearing before the undersigned Veterans Law Judge in July 2013. A copy of the transcript of that hearing is of record. In the July 2013 Travel Board hearing, the Veteran stated that his service-connected bilateral hearing loss interfered with his ability to obtain and maintain employment. In Rice v. Shinseki, the United States Court of Appeals for Veterans Claims (Court) held that a claim for a TDIU is part and parcel of an increased-rating claim when raised by the record. The Board has jurisdiction to consider the Veteran's possible entitlement to a TDIU rating in this circumstance when the TDIU issue is raised by assertion or reasonably indicated by the evidence and is predicated at least in part on the severity of the service-connected disability in question, regardless of whether the RO has expressly addressed this additional issue. See VAOPGCPREC 6-96 (Aug. 16, 1996). See also Caffrey v. Brown, 6 Vet. App. 377, 382 (1994); Fanning v. Brown, 4 Vet. App. 225, 229 (1993); EF v. Derwinski, 1 Vet. App. 324 (1991). The Veteran had previously filed a claim for a TDIU rating, which the RO denied in a July 2010 rating decision. Nevertheless, in light of the Veteran's contentions, and given the Court's decision in Rice, the VA must adjudicate the TDIU issue as part of the claim for an increased rating for the service-connected bilateral hearing loss. Id. See Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001); Bowling v. Principi, 15 Vet. App. 1 (2001). Thus, the Board will assume jurisdiction over the TDIU claim. Please note 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 (AMC), in Washington, DC. VA will notify the Veteran if further action is required. REMAND In the July 2013 Travel Board hearing, the Veteran stated that his service-connected bilateral hearing loss had become progressively worse since his last VA examination. Thus, in light of the foregoing, the Board finds that a new, more contemporaneous examination is needed prior to a final adjudication of the Veteran's current claim. See Green v. Derwinski, 1 Vet. App. 121, 124 (1991). Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested.) 1. Provide the Veteran with Veterans Claims Assistance Act of 2000 ("VCAA") notice explaining how to substantiate a claim for TDIU. 2. The Veteran must be scheduled for a VA audiological examination to determine the extent and severity of his service-connected bilateral hearing loss and to also determine the impact of his service-connected disabilities on his employability. All indicated studies should be performed. The following considerations will govern the examination: a. The claims folder and a copy of this remand must be made available to the examiner who will acknowledge receipt and review of these materials in any report generated as a result of this remand. b. In addition to performing an audiological examination under VA's examination protocols, the EXAMINER MUST FULLY DESCRIBE THE EFFECTS OF THE VETERAN'S HEARING LOSS ON HIS OCCUPATIONAL AND SOCIAL FUNCTIONING IN ACTIVITIES OF DAILY LIVING. c. The examiner must also be advised of the Veteran's statements for his TDIU claim. He maintains that due to his bilateral hearing loss, he had to retire from his "life-long" job in construction. According to the Veteran, he had become a safety liability because he could not hear or understand warnings from fellow workers in the construction zone. He indicated that although he wore hearing aids, they had not helped him and he still had to read lips at work. The Veteran notes that he also has problems obtaining and maintaining employment due to a broken leg and a heart disability, both of which are non-service-connected disabilities. The Veteran reports that he has undergone four heart by-pass operations. d. The examiner should obtain a complete occupational history from the Veteran. Based on a review of the claims file and the results of the Veteran's examination, the examiner should opine whether the Veteran's service-connected disabilities (which consist of bilateral hearing loss, tinnitus, and a left elbow disability, status-post radial head fracture) alone or in combination, preclude him from securing or following substantially gainful employment. The examiner must consider the Veteran's education, training, and occupational experience in making this determination. e. A complete explanation for all opinions must be provided. 3. After completion of the above and any other development deemed necessary, the RO should review and re-adjudicate the issues on appeal. If any such action does not resolve each claim to the Veteran's satisfaction, the RO must provide the veteran and his representative, if any, a supplemental statement of the case and an appropriate period of time must be allowed for response. Thereafter, the case must be returned to this Board for appellate review. The Veteran 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). _________________________________________________ VITO A. CLEMENTI 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).