Citation Nr: 1326477 Decision Date: 08/20/13 Archive Date: 08/26/13 DOCKET NO. 12-27 013 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin THE ISSUE Entitlement to a total disability rating based on individual unemployabilty (TDIU rating). REPRESENTATION Appellant represented by: Wisconsin Department of Veterans Affairs ATTORNEY FOR THE BOARD S. D. Regan, Counsel INTRODUCTION Pursuant to 38 C.F.R. § 20.900(c) (2012), the appeal has been advanced on the Board's docket. The Veteran served on active duty from July 1949 to June 1950 and from October 1950 to May 1952. This matter is before the Board of Veterans' Appeals (Board) on appeal of a rating decision in March 2011 of a Department of Veterans Affairs (VA) Regional Office (RO) that, in pertinent part, denied a claim for a TDIU rating. 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 The Veteran essentially claims that his established service-connected disabilities prevent gainful employment, warranting a TDIU rating. He is currently service-connected for bilateral hearing loss (rated 80 percent) and for tinnitus (rated 10 percent). The combined disability rating is 80 percent. Thus, the Veteran's service-connected disabilities satisfy the schedular criteria set forth in 38 C.F.R. § 4.16(a) (2011). The Veteran was last afforded a VA audiological examination in June 2010. It was noted that the Veteran's claim file was reviewed. The examiner reported that the Veteran used VA issued hearing aids. The examiner indicated that the diagnostic and clinical tests indicated that the Veteran had bilateral, mixed impairment, severe to profound in the right ear, and mild to severe in the left ear. In a November addendum to the June 2010 VA audiological examination report, the examiner reported that the Veteran's claim file was reviewed. The examiner commented that the Veteran's hearing impairment did not prevent the attainment of gainful employment. A subsequent November 2010 VA general medical examination report included a notation that the Veteran's claim file was reviewed. The Veteran reported that he was unable to work because he was eighty years old. He also stated that he had a problem with dizziness and that physicians had been unable to determine what was causing such problem. The Veteran indicated that he did not have nausea, vomiting, blurred vision, double vision, or disorientation with his dizzy spells. It was noted that the Veteran did have hearing aids for both ears and that he was wearing them at the examination. The Veteran reported that he was able to understand normal conversation with his hearing aids. He stated that he last worked in 1994 as a stocking person at a grocery store, and that he had worked in that position for seven years. The Veteran indicated that he previously owned a convenience store and gas station for eleven years. He maintained that prior to owning the convenience store and gas station, he worked as a manager/supervisor in the shoe business for fifteen years. The Veteran reported that his current hobbies involved building bird houses and watching television. He did not report any difficulties with his activities of daily living. The Veteran stated that he could walk for a half mile before he would have shortness of breath, that he could stand for thirty minutes, and that he could lift 50 pounds. He did not report any difficulties with driving, reaching, or with grasping and fine manipulation of his hands. The examiner indicated, as to the Veteran's ears, that he had normal pinna and that the ear canals and tympanic membranes were normal. It was noted that the Veteran had bilateral hearing aids. An audiological examination was not performed. The diagnosis was impaired hearing. The examiner stated that the Veteran should avoid working in sound sensitive positions. The examiner reported that many deaf people were gainfully employed. The examiner commented that the Veteran's impaired hearing and tinnitus did not affect his cognitive abilities such as his abstract thought process, analytical ability, fine motor skills, or his ability to follow detailed instructions and rely on his memory. The Veteran received treatment for hearing complaints subsequent to the June 2010 VA audiological examination report and the November 2010 VA general medical examination report. For example, a September 2010 VA treatment entry, subsequent to the June 2010 VA audiological examination report, noted that the Veteran reported that his hearing had declined quite a bit. He stated that he had newer hearing aids and that he was still adjusting to them. The assessment included severe hearing loss. Additionally, a September 2011 VA treatment report indicated that the Veteran was extremely hard of hearing. The assessment included severe hearing loss. The record clearly raises a question as to the current severity of the Veteran's service-connected bilateral hearing loss. As such, the Board has no discretion and must remand this matter to afford the Veteran a VA examination, with an opinion from an examiner, after a review of the entire claims file, as to whether all of his service-connected disabilities, either alone or in the aggregate, without consideration of any of his nonservice-connected disabilities, render him unable to secure or follow a substantially gainful occupation. See Colayong v. West, 12 Vet. App. 524, 538 (1999); see also Snuffer v. Gober, 10 Vet. App. 400, 403 (1997); VAOPGCPREC 11-95 (1995), 60 Fed. Reg. 43,186 (1995). Prior to the examination, any outstanding records of pertinent treatment should be obtained and added to the record. Finally, the Board finds that the requirements of VA's duty to notify and assist the Veteran have not been met. 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159. The notice requirements of the VCAA require VA to notify the Veteran of what information or evidence is necessary to substantiate the claim, including what subset of the necessary information or evidence, if any, the claimant is to provide and what subset of the necessary information or evidence the VA will attempt to obtain. A review of the claim file shows that the Veteran has not been provided VCAA notice as to his claim for entitlement to a TDIU rating. Thus, on remand the RO must provide corrective VCAA notice. Accordingly, the case is REMANDED for the following action: 1. Ensure that all notification and development action required by 38 U.S.C.A. §§ 5102, 5103 and 5103A (West 2002) are fully complied with and satisfied with respect to the issue of entitlement to a TDIU rating. The notice must include an explanation as to the information or evidence needed to establish a disability rating and effective date of any increase for the claim on appeal. 2. Ask the Veteran to identify all medical providers who have treated him for his service-connected disabilities since September 2010. After receiving this information and any necessary releases, contact the named medical providers and obtain copies of the related medical records which are not already in the claims folder. Document any unsuccessful efforts to obtain records, inform him of such, and advise him he may obtain and submit those records. 3. Schedule the Veteran for a VA examination by an appropriate medical professional to ascertain the current severity of his service-connected disabilities (bilateral hearing loss and tinnitus) and to obtain a medical opinion as to whether the service-connected disabilities alone render him unemployable. The entire claim file (i.e., the paper claim file and any medical records contained in Virtual VA, CAPRI, and AMIE) must be reviewed by the examiner. If the examiner does not have access to Virtual VA, any relevant treatment records contained in the Virtual VA file that are not available on CAPRI or AMIE must be printed and associated with the paper claim file so they can be available to the examiner for review. The examiner must describe current impairment from each of the service-connected disabilities, and must specifically provide an opinion as to whether the Veteran's service-connected disabilities, either alone or in the aggregate, without consideration of any of his nonservice-connected disabilities, render him unable to secure or follow a substantially gainful occupation. If the Veteran's service-connected disabilities do not cumulatively render him unemployable, the examiner must suggest the type or types of employment in which the Veteran would be capable of engaging with his current service-connected disabilities, given his current skill set and educational background. The examination report must include a complete rationale for all opinions expressed. If the examiner feels that the requested opinion cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). 4. Then readjudicate the appeal. If the benefit sought remains denied, issue a supplemental statement of the case and return the case to the Board. The appellant has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 69 (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). _________________________________________________ RONALD W. SCHOLZ 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).