Citation Nr: 1329315 Decision Date: 09/12/13 Archive Date: 09/20/13 DOCKET NO. 07-12 187 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Des Moines, Iowa THE ISSUE Entitlement to a compensable disability evaluation for service-connected bilateral hearing loss. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD A. Nigam, Counsel INTRODUCTION The Veteran served on active duty from September 1960 to September 1967 and from August 1969 to September 1970. This case initially came to the Board of Veterans' Appeals (hereinafter "Board") on appeal from a July 2007 rating decision by the Department of Veterans Affairs (hereinafter "VA") Regional Office (hereinafter "RO") in Des Moines, Iowa, in which the RO denied an increase in a noncompensable rating for service-connected hearing loss. In September 2010, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge (hereinafter "VLJ"). A copy of the transcript of that hearing is of record. In January 2011, the Board remanded this case to the RO via the Appeals Management Center (hereinafter "AMC") in Washington, DC for additional development, to include obtaining outstanding private and VA treatment records. The case was subsequently returned to the Board. In February 2013, the case was again remanded to the RO via the AMC for additional development, to include making a second attempt to obtain outstanding VA treatment records, and scheduling the Veteran for VA examination and medical opinion. Following its completion of the Board's requested actions, the AMC continued the denial of the Veteran's claim for an increased evaluation as reflected in an April 2013 supplemental statement of the case (hereinafter "SSOC"). In evaluating this case, the Board has not only reviewed the physical claims file, but has also reviewed the eFolder on Virtual VA (hereinafter "Virtual VA") to ensure a complete assessment of the evidence. Additional, pertinent medical evidence was added to Virtual VA in March 2013, which was considered by the AMC in the April 2013 SSOC. As such, the Board will proceed to consider the appeal on the merits. See 38 C.F.R. §§ 20.800, 20.1304(c) (2012). FINDINGS OF FACT 1. All notification and development actions needed to fairly adjudicate the matter on appeal have been accomplished. 2. For the entire period of the appeal, the Veteran's bilateral hearing loss disability has been manifested by no worse than Level III hearing in the right ear and Level II hearing in the left ear. CONCLUSION OF LAW The criteria for a compensable disability evaluation for bilateral hearing loss disability have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 and Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1-4.14, 4.85, 4.86, Diagnostic Code (hereinafter "DC") 6100 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION In this decision, the Board will discuss the relevant law which it is required to apply. This includes statutes enacted by Congress and published in Title 38, United States Code (hereinafter "38 U.S.C.A."); regulations promulgated by VA under the law and published in the Title 38 of the Code of Federal Regulations (hereinafter "38 C.F.R.") and the precedential rulings of the United States Court of Appeals for the Federal Circuit (hereinafter "Federal Circuit") (as noted by citations to "Fed. Cir.") and the Court (as noted by citations to "Vet. App."). The Board is bound by statute to set forth specifically the issues under appellate consideration and its decision must also include separately stated findings of fact and conclusions of law on all material issues of fact and law presented on the record, and the reasons or bases for those findings and conclusions. See 38 U.S.C.A. § 7104(d); see also 38 C.F.R. § 19.7 (implementing the cited statute); see also Vargas-Gonzalez v. West, 12 Vet. App. 321, 328 (1999); Gilbert v. Derwinski, 1 Vet. App. 49, 56-57 (1990) (the Board's statement of reasons and bases for its findings and conclusions on all material facts and law presented on the record must be sufficient to enable the claimant to understand the precise basis for the Board's decision, as well as to facilitate review of the decision by courts of competent appellate jurisdiction). The Board must also consider and discuss all applicable statutory and regulatory law, as well as the controlling decisions of the appellate courts. A Veteran bears the "'evidentiary burden' to establish all elements of a claim, including the nexus requirement." Fagan v. Shinseki, 573 F.3d 1282, 1287-88 (2009). The Board's duty is to first determine the probative value of all pertinent medical and lay evidence of record based on its credibility and competency, and then weigh the probative value of the evidence regarding all material elements of a claim. See 38 U.S.C.A. § 7104(d); Kahana v. Shinseki, 24 Vet. App. 428, 433 (2011); see also Layno v. Brown, 6 Vet. App. 465, 469 (1994) (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted"). A "veteran is given the 'benefit of the doubt' 'regarding any issue material' to the veteran's claim 'when there is an approximate balance of positive and negative evidence.'" Fagan, 573 F.3d at 1287 (quoting 38 U.S.C. § 5107(b)). Thus, if there is conflicting medical evidence, the Board may not ignore or disregard any medical professional's opinion, but may assign greater probative to one medical opinion over by providing an adequate statement of reasons or bases for doing so. See Owens v. Brown, 7 Vet. App. 429, 433 (1995); Willis v. Derwinski, 1 Vet. App. 66, 70 (1991). A medical opinion is most probative if it is factually accurate, fully articulated, and based on sound reasoning. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). In making all determinations, the Board must also fully weigh the probative value of the lay evidence of record against the remaining evidence of record. See King v. Shinseki, No. 2011-7159 (Fed. Cir. Dec. 5, 2012). If credible, competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a). Thus, a layperson is competent to report on the onset and continuity of his symptomatology. See Kahana, 24 Vet. App. at 438; Layno, 6 Vet. App. at 470 (a veteran is competent to report on that of which he or she has personal knowledge). Moreover, lay evidence must not be categorically dismissed as incompetent evidence of medical causation merely because it is lay evidence. See King v. Shinseki, 700 F.3d 1339, 1345 (Fed. Cir. 2012). Rather, lay evidence may be competent and sufficient evidence of a diagnosis or nexus if (1) the particular condition at issue is the type of condition that is within the competence of a layperson, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. See Davidson, 581 F.3d at 1316; Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); see also Kahana, 24 Vet. App. at 433, n.4. The Board must determine on a case- by-case basis whether a particular condition is the type of condition that is within the competence of a lay person. See Jandreau, 492 F.3d 1367-77; see also Kahana, 24 Vet. App. at 438, J. Lance dissenting; Robinson v. Shinseki, 312 Fed. Appx. 336, 339 (Fed. Cir. 2009) (nonprecedential). The standard of proof to be applied in decisions on claims for veterans' benefits is set forth in 38 U.S.C.A. § 5107 (West 2002). A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. See 38 C.F.R. § 3.102. When a claimant seeks benefits and the evidence is in relative equipoise, the claimant prevails. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The preponderance of the evidence must be against the claim for benefits to be denied. See Alemany v. Brown, 9 Vet. App. 518 (1996). Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (hereinafter "VCAA") describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the Veteran and his representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim, and to indicate which information and evidence VA will obtain and which information and evidence the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). VCAA notice requirements apply to all five elements of a service connection claim: (1) veteran status; (2) existence of a disability; (3) a connection between the Veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 486 (2006). The notice must be provided to the Veteran prior to the initial adjudication of his claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). In a freestanding claim for an increased evaluation, the VCAA requirement is generic notice: the type of evidence needed to substantiate the claim, which consists of evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on employment, as well as general notice regarding how disability ratings and effective dates are assigned. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). VA has satisfied its duty to notify by issuing pre- and post-adjudication notice letters in May 2007, February 2008, February 2009, September 2009, April 2010, February 2011 and March 2013. These letters advised the Veteran of what evidence was required to substantiate his claim, and of his and VA's respective duties for obtaining evidence. These letters collectively provided notice regarding the disability evaluation and effective date elements of a service connection claim. Dingess, 19 Vet. App. at 473. They also satisfied the requirements under Vazquez-Flores, 580 F.3d 1270 (Fed. Cir. 2009). As noted, the claim was readjudicated in the April 2013 SSOC. Accordingly, prejudicial error in the timing or content of VCAA notice has not been established and any error is not outcome determinative. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (reversing prior case law imposing a presumption of prejudice on any notice deficiency). Further, if any notice deficiency is present in this case, the Board finds that any prejudice due to such error has been overcome by the following: (1) based on the communications sent to the Veteran over the course of this appeal, he clearly has actual knowledge of the evidence he is required to submit in this case; and (2) based on the Veteran's contentions as well as the communications provided to him by VA, it is reasonable to expect that he understands what was needed to prevail. See Shinseki v. Sanders/Simmons, 129 S. Ct. 1696 (2009); Fenstermacher v. Phila. Nat'l Bank, 493 F.2d 333, 337 (3d Cir. 1974) ("[N]o error can be predicated on insufficiency of notice since its purpose had been served."). In order for the Court to be persuaded that no prejudice resulted from a notice error, "the record must demonstrate that, despite the error, the adjudication was nevertheless essentially fair." Dunlap v. Nicholson, 21 Vet. App. 112, 118 (2007). The duty to assist provisions of the VCAA have been met. The claims file contains the Veteran's lay statements, post- service medical treatment records, and reports of VA audiology examinations (also known in the record as Disability Benefits Questionnaire or "DBQ") in June 2007, March 2008, September 2009 and April 2013. The VA examinations were generally adequate because they were based on a thorough examination, a description of the Veteran's pertinent medical history, a complete review of the claims folder, and appropriate diagnostic tests, including puretone thresholds and speech discrimination studies. Also, the April 2013 examination included discussions of the effect of the Veteran's hearing loss disability on occupational functioning and daily activities. In addition to dictating objective test results, the Court has held that a VA audiologist must fully describe the functional effects caused by a hearing disability in his or her final report. Martinak v. Nicholson, 21 Vet. App. 447, 455 (2007). The Veteran has indicated and the record shows that he might have been in receipt of Social Security Administration (hereinafter "SSA") benefits. However, a June 2008 response letter from the SSA indicates that there are no medical records because the Veteran did not file for disability benefits. In June 2008 the RO prepared a "Formal Finding on the Unavailability of Social Security Disability Insurance Records." The Veteran was notified of this in a June 2008 letter from the RO, and was encouraged to submit any documents he had in his possession relating to his SSA benefits. Thus, further efforts to obtain these records would be futile and the Board will proceed with adjudicating the claim based on the current record. 38 C.F.R. § 3.159(c)(2). Additionally, as noted, this case was remanded in January 2011 and February 2013 to obtain outstanding VA treatment records and to obtain VA examination and medical opinion. The AMC has obtained and associated with the claims file the Veteran's treatment records, dated September 2009 through November 2012, from the Omaha, Nebraska VA Medical Center (hereinafter "VAMC"). Also as noted, in April 2013 the Veteran underwent VA audiology examination to determine the nature and severity of his bilateral hearing loss. This examination is adequate for VA rating purposes for the reasons articulated above. Therefore, the record shows substantial compliance with the January 2011 and February 2013 remand directives and no further development is required. See Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141 (1999). The Veteran also was provided an opportunity to set forth his contentions during the September 2010 hearing before the undersigned. The Court has held that the requirements of 38 C.F.R. § 3.103(c)(2) apply to a hearing before the Board and that a VLJ has a duty to explain fully the issues and a duty to suggest the submission of evidence that may have been overlooked. Bryant v. Shinseki, 23 Vet. App. 488, 492 (2010). The record reflects that at the September 2010 hearing the undersigned set forth the issue to be discussed at the hearing, focused on the elements necessary to substantiate the claim, and sought to identify any further development that was required to help substantiate the claim. Neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2), nor have they identified any prejudice in the conduct of the hearing. The Veteran has not made the RO, the AMC or the Board aware of any additional evidence that must be obtained in order to fairly decide the claim on appeal. He has been given ample opportunity to present evidence and argument in support of his claim. Pursuant to 38 C.F.R. § 3.655, all relevant evidence necessary for an equitable disposition of the Veteran's appeal of the issue has been obtained and the case is ready for appellate review. The Board additionally finds that general due process considerations have been complied with by VA. See 38 C.F.R. § 3.103 (2012). The Merits of the Claim The Veteran contends that his bilateral hearing loss disability is more severe than reflected by its noncompensable evaluation. However, because he has no worse than Level III hearing loss in the right ear and Level II hearing loss in the left ear, his claim will be denied. Disability ratings are determined by applying the criteria established in VA's Schedule for Rating Disabilities, which is based upon the average impairment of earning capacity. Individual disabilities are assigned separate Diagnostic Codes. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1, 4.20 (2012). When a question arises as to which of two ratings applies under a particular Diagnostic Code, the higher evaluation is assigned if the disability more nearly approximates the criteria for the higher rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Consideration must be given to increased evaluations under other potentially applicable Diagnostic Codes. Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. In evaluating the severity of a particular disability it is essential to consider its history. 38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where, as in this case, entitlement to compensation has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, staged ratings are appropriate for an increased rating claim, if the factual findings show distinct time periods where the service-connected disability exhibited symptoms that would warrant different ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran's bilateral hearing loss disability is currently assigned a noncompensable evaluation under DC 6100. 38 C.F.R. §§ 4.85, 4.86. An examination for hearing impairment for VA purposes must be conducted by a state-licensed audiologist and must include a controlled speech discrimination test (Maryland CNC) and a puretone audiometry test. 38 C.F.R. § 4.85(a). Impaired hearing will be considered a disability only after threshold requirements are met. See 38 C.F.R. § 3.385. Once a disability is established, levels of hearing loss are determined by considering the puretone threshold average and speech discrimination percentage scores, resulting in a Roman numeral designation for hearing loss. 38 C.F.R. § 4.85(b), Table VI. Disability ratings are assigned by combining the level of hearing loss in each ear. 38 C.F.R. § 4.85(e), Table VII. See Lendenmann v. Principi, 3 Vet. App. 345 (1992) (assignment of disability ratings for hearing impairment are derived by a mechanical application of the rating schedule to the numeric designations assigned after audiometric evaluations are rendered). Table VI, "Numeric Designation of Hearing Impairment Based on Puretone Threshold Average and Speech Discrimination" is used to determine a Roman numeral designation (I through XI) for hearing impairment in each ear based on consideration of speech discrimination as well as puretone threshold averages, unless the examiner certifies that use of the speech discrimination test is not appropriate. In that case, table VIa, "Numeric Designation of Hearing Impairment Based Only on Puretone Threshold Average" is used. Table VII, "Percentage Evaluation for Hearing Impairment" is then used to determine the percentage evaluation by combining the Roman numeral of each ear. 38 C.F.R. §§ 3.383, 3.385, 4.85(b). If the Veteran has either of two exceptional pattern of hearings impairment, the Roman numeral value is determined using both Table VI and VIa. 38 C.F.R. § 4.86. This method is used if the Veteran's puretone threshold at each of the four specified frequencies is 55 decibels or more, or if the Veteran's puretone threshold is 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hertz. Whichever table results in a higher Roman numeral value is used to calculate a disability evaluation using Table VII. Id. In this case, as discussed below, the Veteran's hearing loss does not meet the standard for an exceptional pattern of hearing impairment. In his claim for an increased rating, received in May 2007, the Veteran argued that his hearing has gotten progressively worse over the years to such a degree that he required the use of hearing aids. On VA audiology examination in June 2007 the Veteran presented with complaints of bilateral hearing loss. On physical examination, puretone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 30 45 50 55 LEFT 25 30 35 50 The puretone threshold average in the right ear was 45. The puretone threshold average in the left ear was 35. Speech audiometry, assessed using the Maryland CNC recorded word lists, revealed speech recognition ability of 94 percent in the right ear and of 94 percent in the left ear. The audiologist observed that the Veteran's audiometric test results revealed normal to moderately severe, sensorineural hearing loss, bilaterally. Applying the results of this examination to Table VI of the VA regulations yields a Roman numeral value of I in the right ear and a Roman numeral value of I in the left ear. Applying these values to Table VII, the Veteran's bilateral hearing loss warrants a noncompensable evaluation. 38 C.F.R. §§ 4.85, 4.86. In his notice of disagreement (hereinafter "NOD"), filed in July 2007, the Veteran argued that his hearing loss was more severe his recent VA examination indicated, and again noted that he had been issued hearing aids. On VA audiology examination in March 2008 the Veteran presented with complaints of bilateral hearing loss. On physical examination, puretone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 30 45 40 50 LEFT 25 35 40 55 The puretone threshold average in the right ear was 41.25. The puretone threshold average in the left ear was 38.75. Speech audiometry, assessed using the Maryland CNC recorded word lists, revealed speech recognition ability of 94 percent in the right ear and of 94 percent in the left ear. The audiologist observed that the Veteran's audiometric test results revealed normal to moderately severe, sensorineural hearing loss, bilaterally. Applying the results of this examination to Table VI of the VA regulations yields a Roman numeral value of I in the right ear and a Roman numeral value of I in the left ear. Applying these values to Table VII, the Veteran's bilateral hearing loss warrants a noncompensable evaluation. 38 C.F.R. §§ 4.85, 4.86. On VA audiology examination in September 2009 the Veteran presented with complaints of bilateral hearing loss. On physical examination, puretone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 25 45 50 50 LEFT 25 30 35 50 The puretone threshold average in the right ear was 35. The puretone threshold average in the left ear was 42.5. Speech audiometry, assessed using the Maryland CNC recorded word lists, revealed speech recognition ability of 90 percent in the right ear and of 88 percent in the left ear. The audiologist observed that the Veteran's hearing loss was relatively stable compared to the results from the March 2008 VA examination. Applying the results of this examination to Table VI of the VA regulations yields a Roman numeral value of II in the right ear and a Roman numeral value of II in the left ear. Applying these values to Table VII, the Veteran's bilateral hearing loss warrants a noncompensable evaluation. 38 C.F.R. §§ 4.85, 4.86. During his hearing testimony in September 2010, the Veteran described having problems with hearing people give him instructions or orders when he was working at a meat packing plant, which impacted his ability to communicate effectively and impaired his ability to perform safely at his job. He also reported that he was unable to hear his wife, and that he irritated her by listening to the television too loudly. He noted that he avoided talking on the phone because it was too difficult to carry on a conversation, but admitted that his hearing aids improved his hearing. On VA audiology examination in April 2013 the Veteran presented with complaints of bilateral hearing loss. On physical examination, puretone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 35 50 55 50 LEFT 35 50 55 60 The puretone threshold average in the right ear was 48. The puretone threshold average in the left ear was 50. Speech audiometry, assessed using the Maryland CNC recorded word lists, revealed speech recognition ability of 80 percent in the right ear and of 92 percent in the left ear. The audiologist observed that the Veteran's bilateral hearing loss impacted his ordinary conditions of daily life insofar as it made it difficult for him to hear people unless they "talk[ed] loud[ly]," and that he had not used his hearing aids for some time due to discomfort. 38 C.F.R. § 4.10. See Martinak v. Nicholson, 21 Vet. App. 447, 455-56 (2007). Applying the results of this examination to Table VI of the VA regulations yields a Roman numeral value of III in the right ear and a Roman numeral value of I in the left ear. Applying these values to Table VII, the Veteran's bilateral hearing loss warrants a noncompensable evaluation. 38 C.F.R. §§ 4.85, 4.86. As the Veteran's hearing loss, when calculated using Table VII, does not warrant a compensable disability evaluation, his claim is denied. The Board has considered the Veteran's competent and credible lay statements that describe poor speech recognition, the exclusive reliance upon the use of hearing aids to hear, and an inability to understand conversations due to his hearing disability. Layno v. Brown, 6 Vet. App. 465 (1994); Barr v. Nicholson, 21 Vet. App. 303, 308 (2007). However, as noted, assignment of disability ratings for hearing impairment are derived by a mechanical application of the rating schedule to the numeric designations assigned after audiometric evaluations are rendered. Lendenmann v. Principi, 3 Vet. App. 345 (1992). The preponderance of the evidence is against the claim so the benefit of the doubt rule is not applicable. See 38 U.S.C.A. § 5107(b); Gilbert, 1 Vet. App. at 54-56. The Veteran's hearing loss has not met the requirements for a compensable rating at any time during the period of the appeal, so the Board may not stage his rating. Hart v. Mansfield, 21 Vet. App. 505 (2007). The Board finds that there is no basis for referral for consideration of an extraschedular rating in this case. 38 C.F.R. § 3.321(b)(1) (2012). The Veteran has not presented any evidence that his bilateral hearing loss results in a unique disability that is not addressed by the rating criteria. The Veteran's bilateral hearing loss is evaluated under 38 C.F.R. § 4.85, Diagnostic Code 6100, the criteria of which is found by the Board to specifically contemplate the Veteran's level of disability and symptomatology. As noted above, the Veteran's bilateral hearing loss is manifested by, at worst, Level III hearing loss in the right ear and Level II hearing loss in the left ear. When comparing this disability picture with the symptoms contemplated by the Schedule, the Board finds that the Veteran's symptoms are adequately contemplated by the disability rating for bilateral hearing loss. A rating in excess of the currently assigned rating is provided for certain manifestations of hearing loss, but the medical evidence reflects that those manifestations are not present in this case. The criteria for a noncompensable rating for the Veteran's bilateral hearing loss more than reasonably describe his disability level and symptomatology and, therefore, the currently assigned schedular evaluation is adequate. Thus, there is no basis for referral of the case for consideration of an extraschedular disability evaluation. See Thun v. Peake, 22 Vet. App 111, 115-16 (2008); see also Bagwell v. Brown, 9 Vet. App. 337 (1996). Under Rice v. Shinseki, 22. Vet. App. 447 (2009), the Board must remand an increased rating issue if the Veteran, or the evidence of record, raises the issue of a total rating based upon individual unemployability by reason of service- connected disability (hereinafter " TDIU "). In claims for a TDIU rating, the Court has held that the duty to assist requires that VA determine what effect the Veteran's service-connected disabilities have on his ability to work. 38 U.S.C.A. § 5107(a) (West 2002 & Supp. 2012); Friscia v. Brown, 7 Vet. App. 294, 297 (1994); 38 C.F.R. §§ 3.103(a), 3.326, 3.327, 4.16(a) (2012). While the Board observes that the Veteran is unemployed, the record shows that he is currently in receipt of TDIU benefits, effective from February 6, 2003 to March 18, 2005; from July 1, 2005 to September 7, 2007; and from November 1, 2007, thus any development or consideration under Rice is therefore not appropriate. ORDER A compensable disability evaluation for service-connected bilateral hearing loss disability is denied. ____________________________________________ S. L. Kennedy Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs