Citation Nr: 1332545 Decision Date: 10/21/13 Archive Date: 10/24/13 DOCKET NO. 10-17 234 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUES 1. Entitlement to a disability rating in excess of 10 percent prior to May 10, 2010; and a disability rating in excess of 20 percent beginning May 10, 2010, for service-connected bilateral hearing loss disability. 2. Entitlement to a total disability rating based on individual unemployability due to service-connected bilateral hearing loss disability (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD A. Haddock, Associate Counsel INTRODUCTION The Veteran served with the Merchant Marines from October 1944 to August 1945 and on active duty with the U.S. Army from February 1946 to July 1947 and from November 1948 to December 1953. These matters comes before the Board of Veterans' Appeals (Board) on appeal from an August 2009 rating decision by the Oakland, California Department of Veterans Affairs (VA) Regional Office (RO). The Board notes that in his April 2010 substantive appeal, the Veteran requested a hearing before a member of the Board at a local RO, which was scheduled for August 2013. However, the Veteran did not appear for his scheduled hearing, and did not give good cause for such failure to appear, nor did he request that such hearing be rescheduled. The Board, therefore, considers his April 2010 hearing request to be withdrawn. 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 Board finds that additional development is needed before the Veteran's claims on appeal are decided. At the outset, the Board notes that the United States Court of Appeals for Veterans Claims (Court) has held that, "in addition to dictating objective test results, a VA audiologist must fully describe the functional effects caused by a hearing disability in his or her final report." Martinak v. Nicholson, 21 Vet. App. 447, 455 (2007). The Court further noted that the VA examiner is not required to read the Veteran's mind. Id, citing Cintron v. West, 13 Vet. App. 251, 259 (1999). Therefore, this information can be elicited by the examiner from the Veteran. The Board notes that the Veteran has been afforded numerous VA audiological evaluations since he filed his claim for an increased rating in March 2009. However, upon review of these examination reports, the only report that notes any effects on his daily living is the June 2012 examination report. The June 2012 examination report notes that the Veteran's bilateral hearing loss caused significant effects in his usual occupation, but only that he had difficulty hearing; and it caused no effects to his activities of daily living. However, upon review of the record, the Board notes that in his April 2010 substantive appeal, the Veteran reported that his bilateral hearing loss disability has had a negative impact on his profession as a teacher, as well as his personal life. In an August 2009 statement in support of his claim, the Veteran reported that he could no longer work as a teacher because he could no longer effectively hear students in a classroom situation and he could not distinguish words in ordinary conversation, whether he was communicating with individuals or in an audience setting. In his August 2009 statement, he also reported that his hearing loss had impacted his relationships with his family and friends, as they had to exercise excessive patience in order to account for his hearing loss disability. As none of the VA examiners, including the June 2012 examiner, detailed the functional impairment caused by the Veteran's bilateral hearing loss disability, the Board finds that the Veteran should be afforded a new VA audiological examination in order to determine the current level of severity of all impairment resulting from his service-connected bilateral hearing loss disability in compliance with the holdings in Martinak and Cintron, supra. Further, the Board notes that, in Rice v. Shinseki, the United States Court of Appeals for Veterans Claims (Court) held that a TDIU claim cannot be considered separate and apart from an increased rating claim. See Rice v. Shinseki, 22 Vet. App. 447 (2009). Instead, the Court held that a TDIU claim is an attempt to obtain an appropriate rating for a service-connected disability. The Court in Rice also found that, when entitlement to a TDIU is raised during the adjudicatory process of the underlying disability, it is part of the claim for benefits for the underlying disability. Here, as noted above, the Veteran has consistently asserted that his bilateral hearing loss disability has significantly impacted his ability to work and he provided a letter from his employer supporting such an assertion. The June 2012 VA examination report noted that the Veteran's bilateral hearing loss disability had significant effects on his usual occupation, but did not discuss those effects in any detail. The Board finds that a TDIU claim has been raised in this case, and the issue is remanded to the AOJ for proper development. Additionally, a review of the claims file and "Virtual VA" shows that the most recent treatment notes of record from the Sacramento VA Medical Center are dated March 2012. The Board finds that current VAMC records may contain information pertinent to the claim and must be associated with the claims files before a decision is rendered in this case. 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 with notice as to what information or evidence is needed to substantiate a claim for TDIU. 2. The RO or AMC should obtain treatment records from the Sacramento, California VA Medical Center, dated from March 2012 to the present. 3. Then, the Veteran should be afforded a VA audiological evaluation to determine the current severity of his service-connected bilateral hearing loss disability. The examiner should note any impairment caused by the Veteran's bilateral hearing loss disability, including a full description of the effects of his disability upon his ordinary activities, if any. The claims files must be made available to and reviewed by the examiner. All tests and studies deemed necessary by the examiner should be performed. The VA examiner is asked to render an opinion as to the functional impairment caused by the Veteran's service connected bilateral hearing loss disability. The examiner should provide this opinion considering the Veteran's education and occupational experience, but irrespective of age and nonservice-connected disabilities. The examiner should provide an explanation of rationale for all opinions expressed. 4. Then, this case should again be reviewed and readjudicated on the basis of the additional evidence. If the benefit sought is not granted, the Veteran and his representative should be furnished a Supplemental Statement of the Case, and be afforded an opportunity to respond before the record is returned to the Board. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. 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). _________________________________________________ MICHELLE L. KANE 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).