Citation Nr: 1326429 Decision Date: 08/20/13 Archive Date: 08/26/13 DOCKET NO. 10-04 844 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New York, New York THE ISSUES 1. Entitlement to service connection for right ear hearing loss. 2. Entitlement to an increased (compensable) evaluation for a left ear hearing loss, to include entitlement to a total disability rating based upon individual unemployability (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD H. Bunker, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1970 to April 1971. This case comes before the Board of Veterans' Appeals (Board) on appeal from an August 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. The New York, New York RO has since maintained jurisdiction over the case. The Veteran's December 2009 VA Form 9 included a request for a hearing before the Board. However, in December 2011, the Veteran withdrew that hearing request. Therefore, Board adjudication of the current appeal may go forward without a hearing. See 38 C.F.R. §§ 20.703, 20.704 (2012). 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 Unfortunately, a remand is required in this case. Additional relevant evidence, including VA treatment records dated in January 2010 and November 2012, have been associated with the claims folder subsequent to the issuance of the November 2009 statement of the case. Therefore, remand for the issuance of a supplemental statement of the case is required. At a February 2009 VA examination the Veteran's audiogram results were found to be unreliable and no opinion was given as to the etiology of the Veteran's right ear hearing loss. He was given another audiogram at the VA Medical Center in November 2012; however, this report did not contain Maryland CNC speech discrimination test results. See also July 2009 private examination. A new examination is warranted to determine the current severity of the Veteran's left ear hearing loss and whether the right ear hearing loss is related to service. As the case must be remanded for the foregoing reasons, any recent VA treatment records should also be obtained. In his December 2009 substantive appeal, when discussing his claim for an increased rating for left ear hearing loss, the Veteran stated that his disability prevented him from finding gainful employment. The United States Court of Appeals for Veterans Claims (Court) has held that, when evidence of unemployability is presented in cases such as this, the issue of whether a total disability rating based on individual unemployability due to service-connected disabilities will be assigned should be handled during the determination of the initial disability rating assigned at the time disabilities are determined to be service connected. See Rice v. Shinseki, 22 Vet. App. 447, 452-53 (2009). In this regard, in Rice, the Court determined that there is no freestanding claim for TDIU. Id. at 451. Rather, a claim for TDIU is considered part and parcel of the claim for benefits for the underlying disability. Id. at 453-54. Therefore, this aspect of the Veteran's claim for compensation benefits should be addressed on remand. That is, the AOJ should address whether a TDIU is warranted when it re-adjudicates the rating issue on appeal. The Veteran should be provided appropriate VA notice and a medical opinion should be obtained. Accordingly, the case is REMANDED for the following action: 1. Notify the Veteran about (1) the information and evidence not of record that is necessary to substantiate his claim for a TDIU; (2) the information and evidence that VA will seek to obtain on his behalf; and (3) the information or evidence that he is expected to provide. A copy of this notification must be associated with the claims folder. 2. Make arrangements to obtain the Veteran's VA treatment records for hearing loss, dated since July 2009. 3. Thereafter, schedule the Veteran for a VA audiological examination. The claims file and a complete copy of this REMAND must be made available to and reviewed by the examiner in conjunction with the examination. The VA examination report should indicate that this has been accomplished. Appropriate testing should include a controlled speech discrimination test (Maryland CNC) and a puretone audiometry test. The examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that any currently diagnosed right ear hearing loss had its clinical onset during active service or is related to any in-service disease, event, or injury, to include noise exposure. The examiner should also specifically comment on the effects of the Veteran's left ear hearing loss on his occupational functioning and daily activities. In this regard, the examiner must comment on whether the Veteran's left ear hearing loss renders him unable to secure or follow a substantially gainful occupation. Consideration may be given to the Veteran's level of education, special training, and previous work experience when arriving at this conclusion, but factors such as age or impairment caused by nonservice-connected disabilities are not to be considered. The examiner must provide a comprehensive report including complete rationales for all opinions and conclusions reached, citing the objective medical findings leading to the conclusions. 4. After the above has been completed, the claims file should be reviewed to ensure that all of the foregoing development actions have been conducted and completed in full. If any development is incomplete, appropriate corrective action must be implemented. 5. Finally, readjudicate the claims on appeal. If the benefits sought on appeal remain denied, in whole or in part, the Veteran and his representative must be provided with a Supplemental Statement of the Case and be afforded reasonable opportunity to respond. The case must then be returned to the Board for further appellate review, if otherwise in order. 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). _________________________________________________ P.M. DILORENZO 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).