Citation Nr: 1331185 Decision Date: 09/27/13 Archive Date: 10/01/13 DOCKET NO. 10-09 776 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Entitlement to a compensable rating for left ear hearing loss. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Bonnie Yoon, Associate Counsel INTRODUCTION The Veteran served on active duty from November 1967 to September 1969. This case comes before the Board of Veterans' Appeals (Board) on appeal from a May 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia, which continued a noncompensable rating for left ear hearing loss. A claim for increased evaluation includes a claim for a finding of total disability based on individual unemployability (TDIU) where there are allegations of worsening disability and related unemployability. Rice v. Shinseki, 22 Vet. App. 447 (2009). However in this case, despite the Veteran's statements that conducting business has become very difficult to almost impossible due to his hearing impairment, he is still working as a sales representative. Accordingly, the question of entitlement to TDIU has not been inferred here. The Board has not only reviewed the Veteran's physical claims file but also the electronic records maintained in the Virtual VA system to ensure consideration of the totality of the evidence. 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 Although the Board regrets the additional delay, remand for clarification by the RO with regard to the issues on appeal, along with additional development, is necessary in this case. In December 1969, the Veteran was granted service connection for hearing loss in the left ear with tinnitus. A 0 percent rating was assigned. Service connection was not granted for right ear hearing loss based upon a November 1969 VA examination, which showed speech reception results in the right ear of 10 decibel loss with 96 percent discrimination. The Veteran filed a claim for an increased rating for left ear hearing loss in April 2008. Subsequently, a June 2008 VA audiological examination yielded clinical findings of bilateral hearing loss. The Veteran submitted a statement dated August 2008, in which he stated that his hearing loss has affected him to the point that it has impacted his job as well as his relationship with his wife. He also stated that his hearing loss has caused him to become isolated because if there is outside noise, he cannot communicate with anyone because he cannot pick out words. Following the receipt of the June 2008 examination report and August 2008 statement, the RO issued a rating decision dated May 2009, which continued the 0 percent rating assigned for the Veteran's left ear hearing loss. In addition, the May 2009 rating decision stated that based upon the results of the June 2008 VA examination, which diagnosed the Veteran with bilateral hearing loss, along with the Veteran's conceded noise exposure, service connection had also been granted for right ear hearing loss. However, the code sheet attached to the narrative of the rating decision, which reflects VA's corporate record of the Veteran's disabilities, did not indicate that service connection for right ear hearing loss was granted, listing only left ear hearing loss. The RO did correct the code sheet by separating left ear hearing loss and tinnitus as two separate disabilities. Subsequently, the Veteran filed a notice of disagreement (NOD) dated October 2009, which framed the issue on appeal in terms of a bilateral disability. In his NOD, the Veteran stated, "I am in complete disagreement with the 0 percent rating for my left ear (bilateral) hearing loss." The RO then issued a statement of the case (SOC) in January 2010, which characterized the issue on appeal as a claim for a compensable rating for bilateral hearing loss. However, the RO then issued two supplemental statements of the case (SSOC), in March 2013 and May 2013. Both evaluated the issue on appeal as a claim for a compensable rating for left ear hearing loss only. In addition, the March 2013 SSOC acknowledged that the Veteran had been diagnosed with right ear sensorineural hearing loss, but stated that there was no evidence of record that showed the Veteran ever filed a claim for this condition. Therefore, it is unclear as to whether service connection for right ear hearing loss was granted in the May 2009 rating decision, whether that disability was considered in the assignment of the current evaluation, or even if a valid claim of service connection for right ear hearing loss was received. To facilitate Board review and to ensure that the Veteran is fully aware of the issues on appeal and can effectively participate in the process, remand is required for clarification. Once a formal claim for pension or compensation has been allowed or a formal claim for compensation disallowed for the reason that the service-connected disability is not compensable in degree, receipt of a VA report of examination will be accepted as an informal claim for increased benefits or an informal claim to reopen. 38 C.F.R. § 3.157(b)(1) (2012). In this case, since the evaluation of hearing loss is dependent upon consideration of the hearing acuity in both ears, and the Veteran was diagnosed with bilateral hearing loss, the Veteran's claim for an increased rating for left ear hearing loss arguably raises an inextricably intertwined claim for service connection for the right ear when viewed in conjunction with the June 2008 VA examination findings of bilateral hearing loss. Or, in the alternative, it could be said that the original denial of service connection in the right ear in 1969 appeared to have potentially been denied on the basis that no qualifying compensable right ear disability was found. The June 2008 VA examination, in identifying worsening of hearing loss bilaterally, therefore could also arguably be a claim to reopen for right ear hearing loss. The Board makes no finding regarding the theory applied by the RO in the rating decision and the SOC at this time, to permit a fuller explanation to be considered following remand. In determining that a remand for clarification is required in this case, the Board observes that since the service connection determination on the right ear hearing loss issue could impact the manner of rating the already service-connected left ear hearing loss, it is appropriate to defer appellate review of the issue involving the rating for left ear hearing loss. Harris v. Derwinski, 1 Vet. App. 180 (1991) (two issues are "inextricably intertwined" when they are so closely tied together that a final Board decision on one issue cannot be rendered until the other issue has been considered). In addition to clarification of the issues, complete private treatment records should be obtained. The Veteran submitted a letter dated February 2010 from a private audiologist, Dr. P., which stated a summary of an audiological evaluation of the Veteran completed in February 2010. Since these records are pertinent to this appeal, the Veteran should complete the proper release forms and the treatment records should be obtained. Accordingly, the case is REMANDED for the following action: 1. Request that the Veteran complete a VA Form 21-4142, Authorization and Consent to Release Information to VA, for the release of complete records from Dr. P.. After obtaining a completed VA Form 21-4142, the Agency of Original Jurisdiction (AOJ) should attempt to obtain these records not already associated with the claims file. 2. The RO must clarify whether the Veteran is, in fact, service connected for hearing loss in his right ear, and if so, the disability should be appropriately rated and included in the code sheet listing the Veteran's service connected disabilities. If the right ear is already service connected, the issue must be considered part of the perfected appeal. Conversely, if the RO determines that the Veteran is not service connected for right ear hearing loss, it must consider whether a claim for service connection has been raised under 38 C.F.R. § 3.157 or through the Veteran's statements. If a claim is found, appropriate action to adjudicate the inextricably intertwined claim is required. 3. Review the claims file to ensure that all of the foregoing requested actions are completed, and arrange for any additional development or action indicated. Then readjudicate the claims on appeal, to include proper characterization of the issue(s) on appeal in light of all determinations regarding the right ear. If any of the benefits sought are not granted, the Veteran and his representative should be provided with a Supplemental Statement of the Case and afforded an opportunity to respond. Then return the case to the Board for further 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). _________________________________________________ MILO H. HAWLEY 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).