Citation Nr: 1330116 Decision Date: 09/19/13 Archive Date: 09/25/13 DOCKET NO. 12-13 492 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Entitlement to service connection for hypertension, to include as a result of herbicide exposure. 2. Entitlement to a compensable rating for bilateral hearing loss disability. 3. Entitlement to an initial rating in excess of 20 percent for peripheral neuropathy of the right lower extremity. 4. Entitlement to an initial rating in excess of 20 percent for peripheral neuropathy of the left lower extremity. REPRESENTATION Appellant represented by: Georgia Department of Veterans Services WITNESSES AT HEARING ON APPEAL Appellant and his daughter ATTORNEY FOR THE BOARD J. Barone, Counsel INTRODUCTION Please note that 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 Veteran had active service from November 1956 to July 1979. This matter comes before the Board of Veterans' Appeals (Board) on appeal of rating actions by the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia. In a March 2009 rating action, the RO, in pertinent part, denied the Veteran's claims of entitlement to service connection for tinnitus and hypertension, to include as a result of Agent Orange exposure. The RO also denied the Veteran's claim for a compensable rating for bilateral hearing loss disability, and granted service connection for peripheral neuropathy of the right and left lower extremities, each rated as 20 percent disabling. In March 2009, the Veteran filed a notice of disagreement (NOD) regarding his tinnitus and hearing loss claims. In August 2010, a statement of the case (SOC) was issued. In December 2009, the Veteran requested that his hypertension claim be reconsidered. In a January 2010 rating action, the RO continued its denial of service connection for hypertension, to include as a result of Agent Orange exposure. In February 2010, the Veteran filed an NOD, disagreeing with the RO's decision. In June 2010, an SOC was issued. In January 2010, the Veteran requested that his claim be amended to include his diabetic neuropathy, essentially requesting an increased evaluation; he included the report of nerve conduction studies carried out in December 2009. In a March 2010 rating action, the RO continued the 20 percent ratings assigned for the Veteran's peripheral neuropathy of the lower extremities. Later in March 2010, the Veteran filed an NOD. In June 2010, an SOC was issued. The Board notes that new and material received prior to the expiration of the appeal period will be considered as having been filed with the claim that was pending at the beginning of the appeal period. 38 C.F.R. § 3.156(b). In other words, where new and material evidence is received within one year after the initial rating, it is not final, and the claim remains pending. Therefore, VA must evaluate submissions received during the relevant period and determine whether they contain new evidence relevant to a pending claim. See id; see also Bond v. Shinseki, 659 F.3d 1362, 1367-68 (Fed. Cir. 2011). In this case, evidence relevant to the evaluation of the Veteran's lower extremity peripheral neuropathy was received within one year of the March 2009 rating decision granting service connection. As such, the Board finds that the Veteran's claim for a higher evaluation remained pending from the time of the initial rating decision in March 2009. The issues have been recharacterized to reflect this determination. In September 2010, the Veteran submitted a substantive appeal (VA Form 9) that was timely for all of the claims discussed above. In April 2012, the RO awarded the Veteran service connection for tinnitus. Therefore, that claim was granted in full and will not be further addressed herein. The Veteran appeared before the undersigned Veterans Law Judge in a Travel Board hearing in Atlanta in June 2013 to present testimony on the issue on appeal. He submitted additional evidence at that time, with a waiver of RO jurisdiction over that evidence. In a December 2009 statement concerning his hypertension claim, the Veteran mentioned that he was on medication for his heart condition. It is unclear whether he seeks service connection for heart disease. The AOJ should seek clarification and take appropriate action following receipt of the Veteran's response. The issue of entitlement to service connection for hypertension is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. Bilateral hearing loss disability is manifested by Level I hearing loss in the right ear and Level I hearing loss in the left ear. 2. Peripheral neuropathy of the right lower extremity is manifested by moderately severe incomplete paralysis of the sciatic nerve. 3. Peripheral neuropathy of the left lower extremity is manifested by moderately severe incomplete paralysis of the sciatic nerve. CONCLUSIONS OF LAW 1. The criteria for a compensable evaluation for bilateral hearing loss disability have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.85, Tables VI, VIA, VII; 4.86; Diagnostic Code 6100 (2013). 2. The criteria for an initial evaluation of 40 percent for peripheral neuropathy of the right lower extremity have been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.124a, Diagnostic Code 8520 (2013). 3. The criteria for an initial evaluation of 40 percent for peripheral neuropathy of the left lower extremity have been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.124a, Diagnostic Code 8520 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veterans Claims Assistance Act of 2000 (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); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2013). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2012); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. VCAA notice should be provided to a claimant before the initial unfavorable RO decision on a claim. See Pelegrini v. Principi, 18 Vet. App. 112 (2004); Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). On March 3, 2006, the Court of Appeals for Veterans Claims (Court) issued a decision in the consolidated appeal of Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), which held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: 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. A letter dated in July 2008, prior to the adjudication of the Veteran's claims, discussed the evidence necessary to establish service connection and a higher evaluation for hearing loss. The evidence of record was listed and the Veteran was told how VA would assist him in obtaining additional relevant evidence. He was also advised of the manner in which VA determines disability ratings and effective dates. Subsequent letters advised him of the status of his claims. The Board finds that the content of the notice provided to the Veteran fully complied with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) regarding VA's duty to notify. The Veteran has been provided with every opportunity to submit evidence and argument in support of his claim and to respond to VA notices. Further, the Board finds that the purpose behind the notice requirement has been satisfied because the Veteran has been afforded a meaningful opportunity to participate effectively in the processing of his claims. Regarding the evaluation of the Veteran's lower extremity peripheral neuropathy, the Board observes that this is a case in which the Veteran is challenging the initial evaluation assigned following the grant of service connection. In Dingess, the Court of Appeals for Veterans Claims held that in cases where service connection has been granted and an initial disability rating and effective date have been assigned, the typical service-connection claim has been more than substantiated, it has been proven, thereby rendering section 5103(a) notice no longer required because the purpose that the notice is intended to serve has been fulfilled. Id. at 490-91. With respect to VA's duty to assist, VA treatment records and private treatment records have been obtained and associated with the record. VA examinations have been conducted. The Board finds that the examinations are adequate in that they were conducted by neutral, skilled providers who reviewed the record, interviewed the Veteran, and performed appropriate physical examinations prior to providing their conclusions. The Veteran also was afforded a hearing before the undersigned during which he presented oral argument in support of his claim. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that 38 C.F.R. § 3.103(c)(2) (2012) requires that the VLJ or Decision Review Officer who chairs a hearing fulfill two duties to comply with the above the regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, the VLJ fully explained the issues on appeal during the hearing and asked questions specifically regarding the elements necessary to establish the benefits sought. Significantly, neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2), nor has he identified any prejudice in the conduct of the Board hearing. By contrast, the hearing focused on the evidence necessary to substantiate the claim, and the Veteran, through his testimony, demonstrated that he had actual knowledge of the evidence necessary to substantiate his claims. As such, the Board finds that, consistent with Bryant, the VLJ complied with the duties set forth in 38 C.F.R. § 3.103(c)(2). The Veteran has not otherwise identified any additional evidence or information which could be obtained to substantiate the claim. The Board is also unaware of any such outstanding evidence or information. Therefore, the Board is also satisfied that VA has complied with the duty to assist requirements of the VCAA and the implementing regulations. For the foregoing reasons, it is not prejudicial to the appellant for the Board to proceed to a final decision in this appeal. Analysis Disability evaluations are determined by the application of a schedule of ratings, which is based on average industrial impairment. 38 U.S.C.A. § 1155. A proper rating of the Veteran's disability contemplates its history, 38 C.F.R. § 4.1, and must be considered from the point of view of a Veteran working or seeking work. 38 C.F.R. § 4.2. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Bilateral Hearing Loss Disability With respect to the Veteran's hearing loss claim, the Board notes that where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. 38 C.F.R. §§ 4.1 , 4.2 (2013); see also Francisco v. Brown, 7 Vet. App. 55 (1994). In Hart v. Mansfield, 21 Vet. App. 505 (2007), however, the Court held that "staged ratings" are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. In this case the Board has concluded that the disability has not significantly changed and that a uniform evaluation is warranted for the period considered. Evaluations of hearing loss range from noncompensable to 100 percent, based upon organic impairment of hearing acuity as measured by the results of controlled speech discrimination tests (Maryland CNC), together with the average hearing threshold level as measured by pure tone audiometry tests in the frequencies 1000, 2000, 3000, and 4000 cycles per second. 38 C.F.R. § 4.85(a) and (d) (2013). To evaluate the degree of disability for service-connected bilateral hearing loss, the rating schedule establishes eleven (11) auditory acuity levels, designated from level I, for essentially normal acuity, through level XI, for profound deafness. 38 C.F.R. § 4.85, Diagnostic Code 6100 (2013). The assignment of disability ratings for hearing impairment is derived by a mechanical application of the rating schedule to the numeric designations assigned after audiometric evaluations are rendered. See Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). When the pure tone thresholds at the four specified frequencies (1000, 2000, 3000, and 4000 hertz) are 55 decibels or more, or when the pure tone thresholds are 30 decibels or less at 1000 Hz and 70 decibels or more at 2000 Hz, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or Table VIa, whichever results in the higher numeral. That numeral will then be elevated to the next highest Roman numeral. 38 C.F.R. § 4.86. The evidence demonstrates that the appellant did not have a threshold of 55 decibels or more at the indicated frequencies or a puretone threshold of 30 or less at 1000 Hertz and 70 or more at 2000 Hertz. As such, § 4.86 does not apply. Examinations are conducted using the controlled speech discrimination tests, together with the results of the puretone audiometry test. The horizontal lines in table VI, referenced in 38 C.F.R. § 4.85, represent nine categories of percent of discrimination based upon the controlled speech discrimination test. The vertical columns in table VI represent nine categories of decibel loss based upon the puretone audiometry test. The numeric designation of impaired efficiency (I through XI) will be determined for each ear by intersecting the horizontal row appropriate for the percentage of discrimination and the vertical column appropriate to puretone decibel loss; thus, for example, with a percent of discrimination of 70 and average puretone decibel loss of 64, the numeric designation is V for one ear. The same procedure will be followed for the other ear. The numeric designations are then applied to Table VII, also referenced in 38 C.F.R. § 4.85, to determine the Veteran's disability rating. The Board observes that the record contains uninterpreted graphic representations of audiometric testing conducted privately in May 2008 and June 2013. The Board as fact finder may interpret this data. See Ponder v. Shinseki, No. 09-0881, 2010 WL 4241571, at *3 (Vet. App. Oct. 28, 2010) (unpublished single-judge disposition) (noting that in Kelly v. Brown, 7 Vet. App. 471 (1995), the Court determined that it could not interpret the results of an audiograph because interpretation required a factual finding, which was not the role of the Court in the first instance; the Board, however, was empowered to make factual findings in the first instance); see also Bethea v. Derwinski, 2 Vet. App. 252, 254 (1992) (a non-precedential decision may be cited for any persuasiveness or reasoning it contains). The Veteran submitted his claim for increase in May 2008. He subsequently submitted the May 2008 report of a private audiogram which revealed the following puretone thresholds: HERTZ 1000 2000 3000 4000 Average RIGHT 10 20 35 60 31 LEFT 20 25 45 65 39 This report indicates that speech audiometry was 100 percent for word recognition. It is not clear whether speech discrimination testing was per the Maryland CNC, as required by regulation. See 38 C.F.R. § 4.85(a). On VA examination in October 2008, the Veteran's history was reviewed. He reported that hearing and understanding the television, and hearing with background noise were the situations of greatest difficulty for him. Audiometric testing revealed the following puretone thresholds: HERTZ 1000 2000 3000 4000 Average RIGHT 20 15 30 55 30 LEFT 20 15 40 55 33 The Maryland CNC word list speech recognition scores were 96 percent for the right ear and 92 percent for the left. In August 2010, an additional VA examination was carried out. The examiner noted that testing in January 2010 revealed similar results to the October 2008 examination. The Veteran complained that his hearing was getting worse. The following puretone thresholds were elicited: HERTZ 1000 2000 3000 4000 Average RIGHT 20 15 40 65 35 LEFT 15 20 45 65 36 Speech recognition scores were 96 percent on the right and 98 percent on the left. The report of private audiometric testing conducted in June 2013 reflects the following puretone thresholds: HERTZ 1000 2000 3000 4000 Average RIGHT 20 25 55 65 41 LEFT 20 25 50 65 40 At his June 2013 hearing, the Veteran testified that he had the most difficulty in crowded places, and that his wife complained that he had the television too loud. He indicated that he had hearing aids and that they did help. The Board observes that application of the regulation to the findings of the October 2008 audiometric evaluation results in a numeric designation of I for the right ear and I for the left. A noncompensable evaluation is warranted when those values are applied to Table VII. 38 C.F.R. § 4.85, 4.85, Diagnostic Code 6100 (2012). The results of the August 2010 examination result in a numeric designation of I for the right ear and I for the left; such also results in a noncompensable evaluation when those values are applied to Table VII. Id. As noted, the results of private audiometric testing are of record; however, they do not clearly indicate that the Maryland CNC word list was utilized for speech recognition testing, and as a result cannot be used to evaluate the Veteran's hearing loss disability. However, the Board does note that when those findings are used with Table Via, which determines ratings based solely on the puretone threshold average, the designations remain at level I. Therefore, they do not support a reason for remand for further examination or interpretation. Accordingly, the Board concludes that the current noncompensable evaluation is appropriate. The Board does not doubt the sincerity of the Veteran's assertions that his hearing loss is of such severity that it warrants compensation. However, the Board must uphold the law as it is currently written, which requires objective audiometric testing at certain levels to qualify for compensation. The more probative evidence consists of that prepared by neutral skilled professionals, and such evidence demonstrates that the currently assigned evaluation for the Veteran's hearing loss disability is appropriate. The evidence preponderates against a finding that an increased evaluation is warranted. As such, the appeal is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Lower Extremity Peripheral Neuropathy The Board observes that in cases such as this, where the original rating assigned is appealed, consideration must be given to whether a higher rating is warranted at any point during the pendency of the claim. Fenderson v. West, 12 Vet. App. 119 (1999). The Board has considered whether staged ratings are warranted. It has determined that the disabilities in question have not significantly changed, and that uniform ratings are for application. Early peripheral neuropathy is noted in a July 2003 private treatment record. The results of private electromyography (EMG) in March 2005 indicate eletrophysiologic evidence of a polyneuropathy. In May 2005 a private provider noted clinical evidence of diabetic neuropathy with autonomic insufficiency. A February 2008 private treatment record indicates peripheral neuropathy with unsteadiness. The physician noted that the Veteran had some atrophy in his legs. Peripheral neuropathy with unsteadiness and disequilibrium was noted in August 2008. In an October 2008 letter, the Veteran's physician indicated that the Veteran's peripheral neuropathy had affected him tremendously and that he had difficulty with disequilibrium and unsteadiness. On VA examination by a nurse practitioner in October 2008, the Veteran reported that he had numbness and tingling in his feet and that his gait drifted to the left, causing him to hit his left elbow on doorways. He indicated that the course had been progressively worse since onset, and that current treatment included physical therapy three times per week. He endorsed numbness, paresthesias, impaired coordination, and electrical type shock symptoms. On physical examination, muscle strength was 5/5. Vibration and light touch were absent in the feet and ankles, and pain was decreased. Knee and ankle reflexes were 2+. The examiner indicated that there was no muscle atrophy, and that gait and balance were normal. The diagnosis was bilateral peripheral neuropathy of the lower extremities. On private nerve conduction testing in December 2009, the examining physician indicated an impression of moderately severe sensorimotor polyneuropathy. He noted that it might be related to the Veteran's history of diabetes. An additional VA examination was carried out in February 2010. The examiner, a staff physician, noted that the claims file was not available, but that VA records were reviewed. The Veteran reported discomfort in the bilateral legs and feet and that his symptoms had become intense to the point that he was not able to stand up or walk very far. He endorsed flare-ups involving pain and weakness, fatigue and functional loss. The examiner noted that the Veteran had undergone nerve conduction studies in December 2009 which showed moderately severe peripheral neuropathy. On physical examination, he noted that motor and sensory function was normal. He noted that monofilament was absent in the plantar aspect of both feet. He indicated that reflexes were normal and that there was no muscle wasting or atrophy. He diagnosed peripheral neuropathy of the bilateral lower extremities. At his June 2013 hearing, the Veteran testified that his primary symptom was weakness. He stated that he feared falling due to his neuropathy symptoms. He noted that he lacked endurance. He noted that his private physician had been treating him with infusions, but he was unsure if they had been helpful. His daughter stated her belief that the Veteran's neuropathy symptoms had worsened. It was noted that the Veteran was using a wheelchair. 38 C.F.R. § 4.124a, Diagnostic Code 8520, provides the rating criteria for paralysis of the sciatic nerve. Mild incomplete paralysis of the sciatic nerve warrants a 10 percent rating. A 20 percent rating requires moderate incomplete paralysis of the sciatic nerve. A 40 percent rating requires moderately severe incomplete paralysis of the sciatic nerve. A 60 percent rating requires severe incomplete paralysis with marked muscular atrophy. An 80 percent rating requires complete paralysis. When there is complete paralysis, the foot dangles and drops, no active movement of the muscles below the knee is possible, and flexion of the knee is weakened or (very rarely) lost. 38 C.F.R. § 4.124a. The term "incomplete paralysis" with peripheral nerve injuries indicates a degree of loss or impaired function substantially less than the type pictured for complete paralysis given with each nerve, whether due to the varied level of the nerve lesion or to partial regeneration. When the involvement is wholly sensory, the rating should be for mild, or at most, the moderate degree. See note at "Diseases of the Peripheral Nerves" in 38 C.F.R. § 4.124(a). Neuritis, cranial or peripheral, characterized by loss of reflexes, muscle atrophy, sensory disturbances, and constant pain, at times excruciating, is to be rated at a maximum equal to severe, incomplete, paralysis. 38 C.F.R. § 4.123 (2012). The maximum rating which may be assigned for neuritis not characterized by organic changes referred to in this section will be that for moderate, or with sciatic nerve involvement, for moderately severe, incomplete paralysis. Id. Upon careful review of the record, the Board concludes that higher, 40 percent evaluations for peripheral neuropathy of the lower extremities are warranted. In that regard, the Board observes that the VA examination reports of record contain objective findings, but do not specify the severity of this disability. However, comprehensive nerve conduction studies carried out in December 2009 resulted in an impression of moderately severe sensorimotor polyneuropathy. Moreover, the Veteran's private neurologist has stated that the neuropathy has affected him tremendously, and that he has weakness and disequilibrium. The Board finds this is consistent with the level of severity described by the Veteran throughout the appeal. As such, the Board concludes that the higher ratings are applicable in this case. The Board also concludes that higher, 60 percent ratings are not warranted. In that regard, there is no indication in the medical evidence that there is severe neuropathy with marked muscular atrophy. Rather, the record makes only one reference to atrophy, in a February 2008 private treatment note. Subsequent examinations in October 2008 and February 2010 specifically indicated no evidence of atrophy. There is otherwise no indication of atrophy to the extent contemplated in the criteria for a 60 percent evaluation. The Board therefore finds that the severity of the disability at issue most closely approximates that contemplated by the criteria for a 40 percent evaluation. Extraschedular Consideration Ordinarily, the VA Rating Schedule will apply unless there are exceptional or unusual factors which would render application of the schedule impractical. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993). According to the regulation, an extraschedular disability rating is warranted upon a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that would render impractical the application of the regular schedular standards. See 38 C.F.R. § 3.321(b)(1) (2012); see also Fanning v. Brown, 4 Vet. App. 225, 229 (1993). Under Thun v. Peake, 22 Vet. App. 111 (2008), there is a three-step inquiry for determining whether a Veterans entitled to an extraschedular rating. First, the Board must first determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Second, if the schedular evaluation does not contemplate the level of disability and symptomatology and is found to be inadequate, the Board must then determine whether the claimant's disability picture exhibits other related factors such as those provided by the regulation as "governing norms." Third, if the rating schedule is inadequate to evaluate a Veteran's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extraschedular rating. With respect to the initial inquiry posed by Thun, the Board has been unable to identify an exceptional or unusual disability picture with respect to the Veteran's service-connected hearing loss and lower extremity peripheral neuropathy. The medical evidence fails to demonstrate, at any time during the appellate period, symptomatology of such an extent that application of the ratings schedule would not be appropriate. In fact, as discussed in detail above, the symptomatology of the Veteran's disabilities is specifically contemplated under the appropriate rating criteria. Accordingly, the Board finds that the Veteran's disability picture has been contemplated by the ratings schedule. Since the available schedular evaluation adequately contemplates the Veteran's level of disability and symptomatology, the second and third questions posed by Thun become moot. Even still, the record does not show that the Veteran has required hospitalization, or has lost significant periods of work, due to his hearing loss or lower extremity peripheral neuropathy. In short, the evidence does not support the proposition that the Veteran's service connected disabilities present such an exceptional or unusual disability picture as to render impractical the application of the regular schedular standards and warrant the assignment of an extraschedular rating under 38 C.F.R. § 3.321(b)(1) (2012). As a final matter, when evidence of unemployability is submitted during the course of an appeal from an assigned disability rating, a claim for entitlement to a total disability evaluation based on individual unemployability (TDIU) will be considered to have been raised by the record as "part and parcel" of the underlying claim. Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). In this case, however, neither the Veteran nor the evidence of record has raised the issue of a TDIU. Therefore, the issue is not before the Board. ORDER Entitlement to a compensable evaluation for bilateral hearing loss disability is denied. Entitlement to a 40 percent evaluation for peripheral neuropathy of the right lower extremity is granted, subject to the laws and regulations controlling the award of monetary benefits. Entitlement to a 40 percent evaluation for peripheral neuropathy of the left lower extremity is granted, subject to the laws and regulations controlling the award of monetary benefits. REMAND The Veteran seeks service connection for hypertension, to include as secondary to herbicide exposure. Private medical records reflect a history of hypertension. On VA examination in October 2008, the examiner noted that hypertension was present. She stated that it was not caused by or a result of diabetes mellitus, reasoning that it was diagnosed at the same time as diabetes, and that there was no objective data to support aggravation. She did not provide any further rationale. Moreover, she did not provide a discussion of whether the Veteran's hypertension was related to service. As such, the Board finds that the October 2008 examination is not adequate for the purpose of deciding this claim. The Board also notes that the Veteran testified at his June 2013 hearing that he had suffered a heart attack in November 2012. He submitted limited records apparently pertaining to treatment for the heart attack. Because it appears that there are additional records, to include emergency room and hospitalization records, and that such records are potentially relevant to the Veteran's claim of entitlement to service connection for hypertension, the Board concludes that efforts should be made to secure those records. In light of the above discussion, the Board has determined that additional development is required. 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. Take steps to obtain records pertaining to the Veteran's treatment following a heart attack in November 2012. The Veteran should be asked to provide a release for these and any other non-VA records so that they may be obtained and associated with the record. All attempts to fulfill this development should be documented in the claims file. If after continued efforts to obtain the records it is concluded that it is reasonably certain they do not exist or further efforts to obtain them would be futile, the AOJ must notify the Veteran and (a) identify the specific records the AOJ is unable to obtain; (b) briefly explain the efforts that the AOJ made to obtain those records; (c) describe any further action to be taken by the AOJ with respect to the claim; and (d) inform the Veteran that he is ultimately responsible for providing the evidence. The Veteran must then be given an opportunity to respond. 2. Schedule the Veteran for a VA examination to determine the etiology of his hypertension. The claims folder should be forwarded to the examiner for review. The examiner should be directed to elicit a complete history from the Veteran. All indicated studies should be performed, and their results reported. Following review of the claims file and examination of the Veteran, the examiner should provide opinions as to the following: a. whether it is at least as likely as not (i.e., probability of 50 percent or more) that the Veteran's hypertension is related to service, to include having served in Vietnam and being exposed to herbicides. b. whether it is at least as likely as not (i.e., probability of 50 percent or more) that the Veteran's hypertension was caused by his service-connected diabetes mellitus. c. whether it is at least as likely as not (i.e., probability of 50 percent or more) that the Veteran's hypertension is aggravated by his service-connected diabetes mellitus. Aggravation means that the secondary disability has permanently worsened beyond its normal progression due to the primary disability. The underlying reasons for all opinions expressed must be included in the opinion. The examiner is reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as it is to find against it. If the examiner is unable to offer any of the requested opinions, it is essential that the examiner offer a rationale for the conclusion that an opinion cannot be provided without resort to speculation, together with a statement as to whether there is additional evidence that might enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. See Jones v. Shinseki, 23 Vet. App. 382 (2010). 3. The Veteran is hereby notified that it is his responsibility to report for any examination, and to cooperate in the development of the claim. The consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655. 4. Then, after ensuring the examination report is adequate and undertaking any additional development that is deemed warranted, readjudicate the claim on appeal, with application of all appropriate laws, regulations, and case law, and consideration of any additional information obtained as a result of this remand. If the decision remains adverse to the Veteran, he and his representative should be furnished a supplemental statement of the case and afforded an appropriate period of time within which to respond thereto. The appellant has the right to submit additional evidence and argument on the matter 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). ______________________________________________ BETHANY L. BUCK Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs