Citation Nr: 1332302 Decision Date: 10/18/13 Archive Date: 10/24/13 DOCKET NO. 11-15 304 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to an initial compensable evaluation for service-connected bilateral hearing loss. 2. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD E. D. Anderson, Counsel INTRODUCTION The Veteran served on active duty from July 1956 to September 1960. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a December 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. The Veteran testified before the undersigned Veterans Law Judge at a September 2013 videoconference hearing, and a transcript of this hearing is of record. 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 The Veteran is seeking entitlement to an initial compensable disability evaluation for his service-connected bilateral hearing loss. The Veteran was last afforded a VA examination in March 2010, more than three and a half years ago. The Veteran testified at his September 2009 videoconference hearing that his bilateral hearing loss has substantially worsened since that time. Where the record does not adequately reveal the current state of that disability, the fulfillment of the statutory duty to assist requires a thorough and contemporaneous medical examination. See Suttman v. Brown, 5 Vet. App. 127, 138 (1993); Green (Victor) v. Derwinski, 1 Vet. App. 121, 124 (1991). An examination too remote for rating purposes cannot be considered "contemporaneous." See Caffrey v. Brown, 6 Vet. App. 377, 381 (1994). Additionally, VA generally has a duty to provide additional examination when the claimant alleges that the disability in question has undergone an increase in severity since the time of the last examination. VAOPGCPREC 11-95 (Apr. 7, 1995). Accordingly, on remand, the Veteran should be afforded a new VA audiological examination. Furthermore, in Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009), the Court held that a request for TDIU, whether expressly raised by a Veteran or reasonably raised by the record, is not a separate claim for benefits, but rather involves an attempt to obtain an appropriate rating for a disability or disabilities, either as part of the initial adjudication of a claim, or, as part of a claim for increased compensation. Here, the Veteran has testified that because of his service-connected hearing disability, he is no longer able to obtain employment in his profession. Thus, although the issue of TDIU was not addressed by the RO, the Board finds that it has been reasonably raised by the record. The Board has listed the TDIU issue as a separate claim for administrative purposes. On remand, the VA examiner is asked to provide an opinion as to whether it is at least as likely as not that the Veteran's service-connected hearing loss and tinnitus prevent the Veteran from finding and maintaining substantially gainful employment. The Board also notes that the most recent VA outpatient treatment notes of record are from May 2011. The Veteran has indicated that he has received treatment for his hearing loss disability since that time, including a May 2013 examination at which he was told that his hearing loss was so severe that some frequencies of sound could not be recovered, even with hearing aids. On remand, all VA treatment records since May 2011 should be associated with the Veteran's claims folder. 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. Associate all of the Veteran's VA outpatient treatment records after May 2011 with his claims folder. 2. Once this is done, the RO should schedule the Veteran for a VA examination of his bilateral hearing loss. The examiner should note any functional impairment caused by the Veteran's disability, including a full description of the effects of his disability upon his ordinary activities, if any. The examiner is asked to opine whether it is at least as likely as not (fifty percent or greater) that the Veteran's current service connected hearing loss and tinnitus prevent the Veteran from finding or maintaining substantially gainful employment. A complete rationale for this opinion should be provided. All opinions should be based on examination findings, historical records, and medical principles. The examiner should fully articulate a sound reasoning for all conclusions made. Additionally, the examiner is also reminded to consider the Veteran's lay statements regarding the nature and severity of his disability. If the requested opinions cannot be provided without resorting to mere speculation, the examiner should so state but, more importantly, explain why an opinion cannot be provided without resorting to speculation, as merely stating this will not suffice. The Veteran's claim folder and a copy of this REMAND should be furnished to the examiner, who should indicate in the examination report that he or she has reviewed the claims file. All findings should be described in detail and all necessary diagnostic testing performed. The claims file must be properly documented regarding any notifications to the Veteran as to any scheduled examination. 3. When the development requested has been completed, and the RO has ensured compliance with the requested action, entitlement to a compensable rating for bilateral hearing loss should again be reviewed by the RO on the basis of the additional evidence. And, after undertaking all appropriate and indicated development, the RO should adjudicate the ancillary issue 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 review. 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). (Continued on the next page) 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). _________________________________________________ S. L. Kennedy 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).