Citation Nr: 1331792	
Decision Date: 10/02/13    Archive Date: 10/07/13

DOCKET NO.  09-32 396	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Atlanta, Georgia


THE ISSUES

1. Entitlement to a compensable rating for bilateral hearing loss prior to July 24, 2013, and a rating in excess of 10 percent from July 24, 2013.

2. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU).


REPRESENTATION

Veteran represented by:	Georgia Department of Veterans Services


WITNESS AT HEARING ON APPEAL

The Veteran



ATTORNEY FOR THE BOARD

M. M. Celli, Associate Counsel


INTRODUCTION

The Veteran served on active duty from May 1952 to May 1955.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia.  

In May 2013, the Veteran testified at a video conference hearing before the undersigned Veterans Law Judge (VLJ).  A transcript of that hearing is of record.  

In June 2013, the Board remanded the Veteran's claim, and while the appeal was in remand status, the RO, in a July 2013 rating decision, granted a 10 percent disability rating for bilateral hearing loss, effective July 24, 2013.  Because the increased rating assigned to the Veteran's service-connected bilateral hearing loss is not the maximum rating available for this disability, the claim remains in appellate status, and the Board has re-characterized the issue to include staged ratings as shown on the title page.  See AB v. Brown, 6 Vet. App. 35 (1993); see also Hart v. Mansfield, 21 Vet. App. 505 (2007).

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 issue of entitlement to a TDIU is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center in Washington, DC.



FINDING OF FACT

Throughout the pendency of the appeal, the Veteran's bilateral hearing loss was manifested by no worse than Level II hearing acuity in the right ear and Level VII hearing acuity in the left ear.


CONCLUSION OF LAW

Throughout the pendency of the appeal, the criteria for a disability rating of 10 percent, but not higher, for bilateral hearing loss have been met.  38 U.S.C.A. §§ 1155, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.3, 4.21, 4.85, 4.86, Diagnostic Code 6100 (2013).


REASONS AND BASES FOR FINDING AND CONCLUSION

After review of the claims file, the Board finds that VA has met all statutory and regulatory notice and duty to assist provisions with respect to the issues decided.  See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2013).  The information contained in letters dated in October 2007 and June 2009 satisfied the duty to notify provisions.  See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002) Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).  The June 2009 letter notified the Veteran that he must submit, or request that VA obtain, evidence of the worsening of his disability, the different types of evidence available to substantiate his claim for a higher rating, the need to submit evidence of how such worsening affected his employment, and the requirements to obtain a higher rating.  See Vazquez-Flores v. Shinseki, 580 F.3d 1270, 1275-82 (Fed. Cir. 2009).  

Following the issuance of the June 2009 letter, the Veteran's claim was re-adjudicated in an August 2009 Supplemental Statement of the Case.  See Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (finding that a notice defect may be cured by issuance of a fully compliant notification followed by a re-adjudication of the claim).  For these reasons, the Board finds that the content requirements of the notice VA is to provide have been met, and, thus, no further development is required regarding the duty to notify.  See Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004).

The Veteran's service treatment records, VA treatment records, VA examination reports, and identified private treatment records have been obtained.  In June 2013, the Board remanded the Veteran's claim for additional development.  Specifically, the Board requested that the RO seek clarification from Judith Dunne regarding the July 2007 audiological findings to determine whether a controlled speech discrimination test (Maryland CNC) was performed.  In addition, the Board instructed the RO to provide the Veteran a VA examination to determine the current nature and severity of his service-connected bilateral hearing loss.  In June 2013, the RO sent the Veteran a request to provide a completed release form for Judith Dunne.  The record does not demonstrate that the Veteran responded to the request, and in August 2013, the Veteran submitted a waiver to expedite the processing of his claim, indicating that he had no further evidence to submit in support of his appeal.  In addition, the Veteran underwent VA examination in July 2013.  The record demonstrates that the July 2013 VA examiner reviewed the pertinent evidence and the Veteran's lay statements.  Additionally, the examination results provide sufficient information to decide the issues.  38 C.F.R. § 3.159(c)(4); Barr v Nicholson, 21 Vet. App. 303 (2007).  Furthermore, the examination addresses the effects of the Veteran's bilateral hearing loss on his activities of daily living.  Martinak v. Nicholson, 21 Vet. App. 447 (2007).  As such, the Board finds the July 2013 VA examination to be sufficient and adequate for rating purposes.  In addition, the record shows the RO substantially complied with the remand directives.  See 38 U.S.C.A. § 5103A(b); Stegall v. West, 11 Vet. App. 268 (1998); D'Aries v. Peake, 22 Vet. App. 97 (2008). 

In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims held that 38 C.F.R. § 3.103(c)(2) (2013) requires that the VLJ who conducts a hearing fulfill two duties to comply with the above 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.  At the May 2013 hearing, the VLJ explained the necessity to submit evidence indicating an increase in the severity of the Veteran's service-connected disability and asked questions to ascertain the extent of any current symptoms or treatment for the disability.  In addition, the Veteran was assisted at the hearing by an accredited representative from the Georgia Department of Veterans Services.  No pertinent evidence that might have been overlooked and that might substantiate the claims was identified by the Veteran or his representative.  The hearing focused on the elements necessary to substantiate the claim for a higher disability rating, and the Veteran, through his testimony, demonstrated that he had actual knowledge of those elements.  Neither the representative nor the Veteran has suggested any deficiency in the conduct of the hearing.  Therefore, the Board finds that, consistent with Bryant, the VLJ complied with the duties set forth in 38 C.F.R. § 3.103(c)(2) .

There is no indication in the record that any additional evidence relevant to the issues is available and not part of the claims file.  See Pelegrini v. Principi, 18 Vet. App. 112 (2004).  As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of the case, the Board finds that any such failure is harmless.  See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess, 19 Vet. App. at 486; Shinseki v. Sanders/Simmons, 129 S. Ct. 1696 (2009).

The Board has thoroughly reviewed all of the evidence in the Veteran's claims file.  Although an obligation to provide sufficient reasons and bases in support of an appellate decision exists, there is no need to discuss, in detail, all of the evidence submitted by the Veteran or on his behalf.  See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (holding that the entire record must be reviewed, but each piece of evidence does not have to be discussed).  The analysis in this decision focuses on the most salient and relevant evidence and on what the evidence shows or fails to show with respect to the matters decided herein.  The Veteran should not assume that pieces of evidence, not explicitly discussed herein, have been overlooked.  See Timberlake v. Gober, 14 Vet. App. 122 (2000) (noting that the law requires only that reasons for rejecting evidence favorable to the claimant be addressed).

Disability ratings are determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule), which is based on the average impairment of earning capacity.  Separate diagnostic codes identify the various disabilities.  38 U.S.C.A. § 1155; 38 C.F.R. Part 4 (2013).  Pertinent regulations do not require that all cases show all findings specified by the Rating Schedule but that findings sufficient to identify the disease and the resulting disability, and above all, coordination of the rating with impairment of function will be expected in all cases.  38 C.F.R. § 4.21; see also Mauerhan v. Principi, 16 Vet. App. 436 (2002).  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 closely approximates the criteria for the higher rating.  Otherwise, the lower rating will be assigned.  38 C.F.R. § 4.7.  After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran.  38 C.F.R. § 4.3 (2013).  

The primary concern for an increased rating for a service-connected disability is the present level of disability.  Although the overall history of the disability is to be considered, the regulations do not give past medical reports precedence over current findings.  Francisco v. Brown, 7 Vet. App. 55, 58 (1994).  In all claims for increase, VA has a duty to consider the possibility of assigning staged ratings.  See Hart v. Mansfield, 21 Vet. App. 505 (2007).

Evaluations of defective hearing range from noncompensable to 100 percent based on organic impairment of hearing acuity as measured by the results of controlled speech discrimination tests together with the average hearing threshold as measured by puretone audiometric tests.  To evaluate the degree of disability resulting from hearing loss, the Rating Schedule establishes 11 levels of impaired efficiency, numerically designated from Level I to Level XI.  Level I represents essentially normal hearing acuity for VA compensation purposes, with hearing loss increasing with each level to the profound deafness represented by Level XI.  38 C.F.R. § 4.85, Tables VI, VII (2013).  

Hearing tests will be conducted without hearing aids, and the results of the above-described testing are charted on Table VI and Table VII.  See 38 C.F.R. § 4.85.  An examination for hearing impairment for VA purposes must be conducted by a state-licensed audiologist and must include the Maryland CNC and a puretone audiometric test.   

Exceptional patterns of hearing impairment are addressed in 38 C.F.R. § 4.86.  When the puretone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) is 55 decibels or more, 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.  Each ear will be evaluated separately.  38 C.F.R. § 4.86(a).  When the puretone threshold is 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hertz, 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 higher Roman numeral.  Each ear will be evaluated separately.  38 C.F.R. § 4.86(b).

The Veteran's service-connected bilateral hearing loss has been assigned a non-compensable rating prior to July 24, 2013 and a 10 percent disability rating on and after July 24, 2013.  The Veteran asserts that his bilateral hearing loss is more disabling.  Specifically, he contends that he has difficulty hearing and understanding people if he is not facing them.  

Considering the pertinent evidence in light of the governing legal authority, the Board finds that a disability rating of 10 percent for bilateral hearing loss is warranted throughout the pendency of the appeal.  Here, the Board finds the competent, clinical evidence demonstrates that the Veteran's bilateral hearing loss was manifested by no worse than Level II hearing acuity in the right ear and Level VII hearing acuity in the left ear.

In support of his appeal, the Veteran submitted a July 2007 private audiological examination report.  The July 2007 report reflects that the relevant puretone thresholds, in decibels, were as follows:



HERTZ

1000
2000
3000
4000
RIGHT
45
50
70
75
LEFT
60
65
85
80

The private audiologist reported that puretone audiometric testing in the right ear revealed a severe progressing to moderate primarily sensorineural hearing loss from 250 through 2000 Hertz, with a severe sensorineural hearing loss above 2000 Hertz.  With respect to the left ear, there was a severe progressing to moderately-severe sensorineural hearing loss from 250 through 2000 Hertz, with a severe to profound sensorineural hearing loss above 2000 Hertz and no measurable hearing at 8000 Hertz.  The private audiologist also stated that speech discrimination scores were 92 percent in the right ear and 60 percent in the left ear.  However, the record does not demonstrate that such speech discrimination testing was performed using the Maryland CNC as is required for examination for determining hearing impairment for VA rating purposes.  See 38 C.F.R. § 4.85(a).  In this respect, the RO requested that the Veteran provide a release form to obtain clarification from the private audiologist.  However, the evidence does not show that the Veteran responded to that request or indicated that further evidence was available.  Therefore, the Board finds the July 2007 private audiological report inadequate for rating purposes. 
 
In October 2007, the Veteran underwent VA examination in connection with his claim.  The Veteran reported that his bilateral hearing loss had gotten progressively worse since service and that he had the greatest difficulty when he was not facing the person speaking to him.  After performing the audiometric examination, the VA examiner found that despite repeated attempts and reinstruction, the results were unreliable and unsuitable for rating purposes.  Therefore, the VA examiner did not report the audiological results.  The VA examiner stated that the Veteran did not appear to be putting forth a good faith effort to cooperate with the examiner.  The VA examiner reported that the test results were strongly suggestive of a non-organic hearing loss/hearing loss component.  Responses to puretones varied by up to 20 decibels with retesting, which was more than could be expected from test-retest variability, and a couple of the bone conduction thresholds were in poor agreement with air conduction thresholds.  In addition, the speech recognition thresholds (SRTs) were in poor and fair agreement with the pure tone averages (PTAs), and puretone and speech recognition results were significantly worse than the May 2005 VA audiogram results.  Furthermore, the VA examiner opined that the results were much worse than typically expected in such a short time period, with some of the response words phonetically dissimilar to stimulus words during speech recognition testing.

The Veteran underwent additional VA examination in June 2009.  He asserted that his bilateral hearing loss, and especially his hearing in the left ear, had worsened since his last VA examination.  The Veteran reported that he had the greatest difficulty hearing when he was not facing the speaker.  The VA examiner reported that contralateral and ipsilateral acoustic reflexes were elevated or absent in both ears.  Despite repeated attempts and reinstruction, the VA examiner found the test results were not reliable and not suitable for rating purposes.  The VA examiner reported that the test results were suggestive of a non-organic hearing loss/hearing loss component.  There was variability in responses to puretones of up to 15 decibels with retesting, which the VA examiner opined was more than could be expected from test/retest variability.  The VA examiner stated that the left SRT was in fair agreement with the PTAs and that a number of air and bone conduction thresholds were in fair to poor agreement.  In addition, the Veteran's poor speech recognition score obtained on the left side was inconsistent with the puretone thresholds obtained and the May 2005 VA examination results with similar thresholds.  In addition, many of the Veteran's responses were phonetically dissimilar to the stimulus words.  The VA examiner reported that the Veteran's bilateral hearing loss had significant effects on his occupation as the Veteran complained of difficulty hearing when not facing a speaker.

At the May 2013 hearing, the Veteran reported that if he was looking directly at a person speaking, he could understand them.  However, if he had his head turned, he could not understand them.  He also stated that he could sort of read lips.  The Veteran reported that his hearing was fair in the right ear but that he could not hear anything in his left ear.  With respect to audiological examinations, the Veteran stated that he could hear the sounds but could not understand what the examiner was saying.
In this case, the competent, clinical evidence consists of the results obtained in a July 2013 VA audiological examination.  The July 2013 report revealed that the relevant puretone thresholds, in decibels, were as follows:

HERTZ

1000
2000
3000
4000
RIGHT
35
50
65
65
LEFT
55
65
85
85
The VA examiner diagnosed bilateral sensorineural hearing loss and reported that the Veteran had a mild sloping to severe hearing loss in the right ear and a moderate sloping to severe hearing loss in the left ear.  In a quiet environment, the Veteran's word understanding was good in the right ear and poor in the left ear.  

On the basis of the numbers shown above, the Veteran's puretone threshold average for the right ear was recorded as 53.75 decibels.  His puretone threshold average for the left ear was recorded as 72.5 decibels.  His speech recognition ability was 88 percent for the right ear and 60 percent for the left ear.  Applying 38 C.F.R. § 4.85, Table VI to the July 2013 audiometric examination findings, the Veteran's right ear hearing loss is a Level II impairment based on a puretone threshold average of 53.75 decibels and an 88 percent speech recognition score.  The Veteran's left ear hearing loss is a Level VII impairment based on a puretone threshold average of 72.5 decibels and a 60 percent speech recognition score.  As such, the Veteran's left ear is considered the poorer ear for rating purposes.  Applying the criteria from Table VI to Table VII, a disability rating of 10 percent is derived.  

As described above, the rating criteria also provide for rating exceptional patterns of hearing impairment under the provisions of 38 C.F.R. § 4.86.  Here, puretone thresholds at each of the four specified frequencies in the left ear were 55 decibels or more, and therefore, evaluation under 38 C.F.R. § 4.86(a) is appropriate.  However, when applying 38 C.F.R. § 4.85, Table VIA to the examination results, the Veteran's left ear hearing loss is a Level VI impairment.  As the application of Table VI results in a higher Roman numeral designation than the use of Table VIA, the Board will utilize Table VI for rating purposes.  Additionally, puretone thresholds were not shown to be 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hertz in either ear.  As a result, the Veteran is not entitled to consideration under 38 C.F.R. § 4.86(b).  

The VA examiner reported that the Veteran's bilateral hearing loss impacted the ordinary conditions of his daily life, including his ability to work, and the Veteran stated that he had trouble hearing, especially in the left ear.  In addition, the Veteran reported that he did have hearing aids but did not wear them routinely as they needed repair.  The Veteran was able to follow directions and answer all questions correctly during the examination, which was in a quiet room with face-to-face conversation.  As such, the VA examiner opined that the Veteran should be able to secure employment in a quiet setting with face-to-face contact.  The VA examiner opined that hearing loss did not render an individual unable to perform all types of sedentary and physical types of employment.  

The Board recognizes the Veteran's assertions regarding the impact of his bilateral hearing loss on his daily life.  However, the Board must base its determination on the competent, audiological evaluation results of record and is bound by law to apply VA's Rating Schedule based on such results.  See 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1; see also Lendenmann v. Principi, 3 Vet. App. 345 (1992).  Therefore, applying the competent audiological test results of record that are most favorable to the Veteran to the regulatory criteria, the Board is compelled to conclude that a disability rating of 10 percent is warranted for bilateral hearing loss throughout the pendency of the appeal.  In addition, although the July 2007 private audiological examination is inadequate for VA rating purposes, the Board finds it significant that applying 38 C.F.R. § 4.85, Table VI and 38 C.F.R. § 4.85, Table VII to the puretone thresholds reflected therein results in a disability rating consistent with the July 2013 VA examination results.  As such, the Board finds the Veteran's bilateral hearing loss warrants a 10 percent disability rating for the entire appeal period.

Extraschedular Consideration

The Board has also considered whether this case should be referred to the Director of the VA Compensation and Pension Service for extraschedular consideration under 38 C.F.R. § 3.321(b).  In this regard, the Board again notes the Veteran's assertions that his bilateral hearing loss affects his ability to hear and understand people who are not facing him.  The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate.  This involves a comparison between the level of severity and symptomatology of the veteran's service-connected disability with the established criteria for that disability found in the Rating Schedule.  If the criteria reasonably describe the veteran's disability level and symptomatology, then the veteran's disability picture is contemplated by the Rating Schedule, the assigned schedular evaluation is adequate, and no referral is required.  Thun v. Peake, 22 Vet. App. 111, 115 (2008).  

In this case, the record does not reflect that the average industrial impairment from the Veteran's hearing loss disability is in excess of that contemplated by the assigned rating.  As noted above, results from the adequate audiological evaluation of record reveal, at worse, Level II hearing acuity in the right ear and Level VII hearing acuity in the left ear, and the Veteran has not submitted any audiological evidence indicating that his hearing loss disability has been worse at any point during the pendency of the appeal.  While the Board recognizes the Veteran's assertions that he experiences difficulty hearing and understanding people when he is not facing them, such manifestations are adequately contemplated by the schedular criteria for a 10 percent disability rating under 38 C.F.R. § 4.85, DC 6100.  These manifestations are not exceptional in terms of the disability level and symptomatology of a person with Level II hearing acuity in the right ear and Level VII hearing in the left ear, which are specifically contemplated by a 10 percent disability rating, and have not been shown to be productive of more than the average impairment in earning capacity commensurate with Level II hearing acuity and Level VII hearing acuity.  In addition, the record reflects that the Veteran has not required frequent hospitalizations for his bilateral hearing loss, and there is no indication of marked interference with employment due to bilateral hearing loss.  In sum, the Board has determined that there are no unusual or exceptional factors warranting the referral of the claim for extraschedular consideration.

Resolving the benefit of the doubt in favor of the Veteran, the Board finds that the criteria for a disability rating of 10 percent, but no more, for bilateral hearing loss have been met throughout the pendency of the appeal.  See 38 C.F.R. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990).


ORDER

Entitlement to a disability rating of 10 percent, but no more, for bilateral hearing loss is granted prior to July 24, 2013.

Entitlement to a disability rating in excess of 10 percent from July 24, 2013 to the present is denied.


REMAND

The Court has held that a TDIU claim is part and parcel of an increased rating claim when raised by the record.  Rice v. Shinseki, 22 Vet. App. 447 (2009).  As a result, the Board has jurisdiction to consider the Veteran's possible entitlement to a TDIU when the issue is raised by assertion or reasonably indicated by the evidence and is predicated, at least in part, on the severity of the service-connected disability in question, regardless of whether the RO has expressly addressed this additional issue.  See VAOPGCPREC 6-96 (Aug. 16, 1996); see also Caffrey v. Brown, 6 Vet. App. 377 (1994); Fanning v. Brown, 4 Vet. App. 225, 229 (1993); EF v. Derwinski, 1 Vet. App. 324 (1991).  In this case, the Veteran has not filed a formal claim of entitlement to a TDIU.  However, on examination in August 2005, the Veteran stated that he had retired at the age of 52 because of his panic attacks.  The August 2005 VA examiner reported that the Veteran had been unable to work after he quit his previous job in 1984.  The VA examiner also opined that due to his service-connected panic disorder with agoraphobia, the Veteran had serious symptoms with major impairment in several areas, such as work and social life.  In addition, the July 2013 VA examiner reported that the Veteran's bilateral hearing loss impacted the ordinary conditions of his daily life, including his ability to work.  Furthermore, the VA examiner found that although the Veteran's hearing loss and tinnitus did not render him unable to perform all types of sedentary and physical types of employment, the Veteran's other health issues needed to be taken into consideration for employability.  The Veteran is currently service-connected for panic disorder with agoraphobia, with a disability rating of 50 percent; tinnitus, with a disability rating of 10 percent; and bilateral hearing loss, with a disability rating of 10 percent.  Therefore, the Board finds that the issue of entitlement to a TDIU has been reasonably raised by the record and should be adjudicated as part of the claim on appeal.  Id.; see also Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001); Bowling v. Principi, 15 Vet. App. 1 (2001).  As such, the claim of entitlement to a TDIU is remanded for appropriate action.

Accordingly, the case is REMANDED for the following actions:
	
(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. The RO should send the Veteran VCAA notice regarding a claim of entitlement to TDIU.

2. The RO should complete any additional evidentiary development necessary to adjudicate a claim for a TDIU, to specifically include collecting and verifying information concerning the Veteran's complete educational and occupational history.

3. The RO should schedule the Veteran for an evaluation by a vocational specialist to determine the effect of his service-connected disabilities on his ability to secure or follow a substantially gainful occupation.  The specialist is requested to offer an opinion as to whether it is at least as likely as not (50 percent probability or more) that the Veteran's service-connected disabilities, alone or in combination, prevent him from securing or following a substantially gainful occupation.  When offering this opinion, the specialist should not consider the effects of age or any nonservice-connected disability.  The vocational specialist should also note that the Veteran is currently service-connected for panic disorder with agoraphobia, tinnitus, and bilateral hearing loss.  

In formulating the opinion, the specialist is advised that the term "at least as likely as not" does not mean "within the realm of possibility."  Rather, it means that the weight of the evidence both for and against the claim is so evenly divided that it is as sound to find in favor of the claim as it is to find against it.

A complete rationale for any opinion expressed must be provided.

4. When the development requested has been completed, adjudicate the claim of entitlement to a TDIU.  If the benefit sought is not granted, the Veteran and his representative should be furnished a Supplemental Statement of the Case and be afforded a reasonable opportunity to respond before the record is returned to the Board for further appellate review.

The Veteran 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).




______________________________________________
ROBERT C. SCHARNBERGER
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs