Citation Nr: 1333294 Decision Date: 10/23/13 Archive Date: 10/24/13 DOCKET NO. 06-17 412 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUES 1. Entitlement to a rating in excess of 10 percent for bilateral hearing loss from September 1, 2008. 2. Entitlement to total disability based upon individual unemployability. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD N. Holtz, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1969 to July 1973, and from February 1981 to January 1988. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2004 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. In February 2011, the Veteran testified before the undersigned. A transcript of that hearing is of record. In May 2011, the Board denied entitlement to a rating in excess of 10 percent for a bilateral hearing loss prior to September 1, 2008, and remanded the remaining issues. In January 2012, the Board denied entitlement to a rating in excess of 10 percent for a bilateral hearing loss from September 1, 2008, and remanded the issue of entitlement to a total disability evaluation based on individual unemployability due to service connected disorders. The appellant appealed the denial, and in November 2012, the United States Court of Appeals for Veterans Claims granted a joint motion for remand. The issue of whether new and material evidence has been received to reopen a claim of entitlement to service connection for an acquired psychiatric disorder has been raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. This case is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. REMAND As noted, the January 2012 Board decision remanded the issue of entitlement to a total disability evaluation based on individual unemployability due to service connected disorders in January 2012. Given the development outlined below, and the fact that the development ordered at that time remains incomplete, the RO is instructed to fulfill the terms of the January 2012 remand before returning the issue of entitlement to individual unemployability to the Board. In the Joint Motion for Remand the parties agreed that the Board failed to properly address the functional effects of the appellant's hearing loss on his occupational functioning and daily activities. Given the appellant's testimony that his hearing loss interferes with employment opportunities, and the fact that the last VA examination was several years ago, the Board finds that further development is required. Accordingly, the case is REMANDED for the following action: 1. The RO should contact the appellant and request that he identify any medical care provider who has treated his bilateral hearing loss since September 1, 2008, and whose records have not previously been submitted to VA. Thereafter, the RO must undertake all appropriate efforts to secure any pertinent records which have yet to be added to the claims file. Duplicate records should not be added to the claims file. The Veteran is advised that any medical record which would show the functional impact of his disorder should be identified. If the RO cannot locate such records, the RO must specifically document the attempts that were made to locate them, and explain in writing why further attempts to locate or obtain any government records would be futile. The RO must then: (a) notify the claimant of the specific records that it is unable to obtain; (b) explain the efforts VA has made to obtain that evidence; and (c) describe any further action it will take with respect to the claims. The claimant must then be given an opportunity to respond. 2. Thereafter, the RO should schedule the appellant for a VA audiological examination in order to determine the nature and extent of any hearing loss. The claims folder, to include access to Virtual VA, must be provided to the examiner. The examiner must provide a full description of the effects of the claimant's hearing loss on his ability to work. The examiner must address in detail the functional effects of the Veteran's hearing loss on his occupational functioning and daily activities. A complete rationale must be provided for any opinion offered. 3. Thereafter, the RO/AMC should readjudicate the claims of entitlement to an increased rating for a bilateral hearing loss since September 1, 2008, and entitlement to a total disability evaluation based on individual unemployability due to service connected disorders. If any benefit sought is not granted to the Veteran's satisfaction, he and his representative must be provided a supplemental statement of the case and be afforded the appropriate opportunity to respond thereto. By this REMAND, the Board intimates no opinion as to any final outcome warranted. No action is required by the Veteran until he is notified by VA. The appellant is hereby placed on notice that pursuant to the provisions of 38 C.F.R. § 3.655 (2013), a failure to cooperate, to include any failure to report for the requested VA examination, may result in an adverse determination. 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. 2013). _________________________________________________ DEREK R. BROWN 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).