Citation Nr: 1332224 Decision Date: 10/17/13 Archive Date: 10/21/13 DOCKET NO. 11-17 010 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to a compensable disability evaluation for service-connected bilateral hearing loss. 2. Entitlement to a total rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL Appellant and his Wife ATTORNEY FOR THE BOARD M. Hudson, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1945 to November 1946. This matter is before the Board of Veterans' Appeals (Board) on appeal from a February 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. Jurisdiction of the claim was subsequently transferred to the RO in Winston-Salem, North Carolina. In October 2012, the Veteran testified before the undersigned Veterans Law Judge (VLJ) during a Board videoconference hearing. A transcript of the hearing is in the claims file. The Board's prior November 2012 remand addressed the Veteran's claims for service connection for a right shoulder disorder and service connection for a back disorder. Both of these claims were granted in an August 2013 rating decision. A review of the Virtual VA and VBMS paperless claims processing systems does not reveal any additional documents pertinent to the present appeal. Please note 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 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 In a February 2010 rating decision, the RO continued the Veteran's noncompensable rating for bilateral hearing loss. The Veteran claims that his hearing is progressively worse. See Veteran's Statement in Support of Claim, July 2011. A remand is necessary for additional evidentiary development of the Veteran's increased rating claim because certain relevant medical treatment records have not been obtained. During the Veteran's July 2013 VA audiological examination, the examiner referenced the Veteran's recent referral for hearing aid services and a June 18, 2013 "audio" evaluation from Carolina East Ear, Nose and Throat. These medical treatment records from Carolina East Ear, Nose and Throat are not in the record. VA has a duty to obtain relevant medical treatment records. See 38 C.F.R. § 3.159(c) (2013). Therefore, the Board finds that upon remand, treatment records should be obtained from Carolina East Ear, Nose and Throat, in addition to any other relevant medical treatment records. Furthermore, evidence of record indicates that the Veteran may be unable to follow substantially gainful occupation as a result of his service-connected bilateral hearing loss. See VA Audiological Examination, July 2013 (finding the Veteran's previous work as a general contractor would likely be difficult to maintain given his need to converse with a variety of people in situations that could not be controlled for the presence of background noise); see also Veteran's Hearing Transcript, pg. 12, October 2012 (Veteran testified that as a result of his bilateral hearing disability, he could no longer communicate with people and had to shut down his broker and contractor business); see also VA Examination, November 2009 (Veteran reported that he quit working as a general contractor in November 2008 because he could not hear his clients properly). TDIU claims are to be liberally construed. Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001). Therefore, a claim for a TDIU has been raised. Id; Rice v. Shinseki, 22 Vet. App. 447 (2009). Prior to adjudication of the TDIU issue, however, the Board finds that further evidentiary development is necessary, to include issuing appropriate notice and obtaining a medical opinion as to the effect of all of the Veteran's service-connected disabilities (degenerative disc disease of the lumbar spine, osteoarthritis of the right shoulder, bilateral hearing loss, and tinnitus) on his employability. The Veteran is hereby notified that it is his responsibility to report for any scheduled examination and to cooperate in the development of the case, and that the consequences of failing to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655 (2013). 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. Provide the Veteran appropriate notice regarding the claim for a TDIU. Request the Veteran complete VA Form 21-8940, Veterans Application for Increased Compensation Based on Unemployability. 2. Obtain the names and addresses of all medical care providers, not previously identified, who have treated the Veteran for any bilateral hearing issues since August 2008. After securing the necessary release(s), obtain these records, including all pertinent treatment records from Carolina East Ear, Nose and Throat from August 2008 to present, specifically the Veteran's June 18, 2013 audiological evaluation. 3. After completion of the foregoing, schedule an appropriate VA examination to ascertain whether it is at least as likely as not (i.e., probability of 50 percent or greater) that the Veteran's service-connected disabilities (degenerative disc disease of the lumbar spine, osteoarthritis of the right shoulder, bilateral hearing loss, and tinnitus), either singly or taken together, render him unable to secure or follow a substantially gainful occupation. Consideration may be given to the Veteran's level of education, special training, and previous work experience in arriving at a conclusion, but not to his age or to any impairment caused by non-service-connected disabilities. The examiner should specifically comment on the Veteran's claim that he had to quit his job as a general contractor in November 2008 due to his service-connected bilateral hearing loss disability. A full rationale must be provided for all stated medical opinions. Note: if the examiner concludes that the requested opinion cannot be provided without resort to speculation, the examiner should so state and explain why this opinion would be speculative and what, if any, additional evidence would permit such an opinion to be made. 4. Then, readjudicate the issues on appeal. If any benefit remains denied, the Veteran and his representative should be provided a supplemental statement of the case and given an appropriate opportunity to respond. The case should then be returned to the Board for further consideration, if otherwise in order. The appellant has the right to submit additional evidence and argument on the 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). _________________________________________________ MICHAEL MARTIN 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) (2013).