Citation Nr: 1333956 Decision Date: 10/28/13 Archive Date: 11/06/13 DOCKET NO. 10-33 062 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Oakland, California THE ISSUES 1. Entitlement to an increased (compensable) rating for bilateral hearing loss. 2. Entitlement to a total disability rating based on individual unemployability (TDIU) due to bilateral hearing loss. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Jebby Rasputnis, Associate Counsel INTRODUCTION The Veteran served on active duty from May 1967 to May 1987. Historically, in a November 1987 rating decision, the RO awarded service connection for left ear hearing, rated as 0 percent disabling (noncompensable) from June 1, 1987 (the day after the date of his discharge from service). The Veteran filed the current claim for an increased (compensable) rating for his hearing loss in May 2008. This appeal to the Board of Veterans' Appeals (Board) arose from a March 2009 rating decision in which the RO granted service connection for right ear hearing loss, but continued the noncompensable rating for disability recharacterized as bilateral hearing loss. In October 2009, the Veteran filed a notice of disagreement (NOD). A statement of the case (SOC) was issued in May 2010 and the Veteran filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans' Appeals) in July 2010. In August 2012, the Veteran testified during a Board video-conference hearing before the undersigned Veterans Law Judge (VLJ). A transcript of that hearing is of record. As explained in further detail, below, the Veteran has asserted that he is unable to work due to his service-connected bilateral hearing loss. In light of that contention (and, as explained in more detail, below), the Board has expanded the appeal (as reflected on the title page) to include a claim for a TDIU due to the disability for which an increased rating is sought on appeal. See Rice v. Shinseki, 22 Vet. App. 447 (2009). For reasons expressed below, the matters on appeal are being remanded to the RO, via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran when further action, on his part, is required. REMAND The Board's review of the claims file reveals that further RO action in this appeal is warranted. First addressing characterization of the appeal, the Board notes that the Veteran has contended, during the August 2012 hearing and in multiple written documents, that he was denied re-employment by the California Department of Corrections (CA DoC) in May 2008 due to his inability to pass required hearing evaluations. Through these contentions, he has asserted his entitlement to a TDIU. See 38 C.F.R. §§ 3.340, 3.341, 4.16 (2013). As this matter has explicitly been raised in the context of his claim for a higher rating for hearing loss, a claim for a TDIU is raised as a component of that increased rating claim. See Rice, 22 Vet. App. at 447. As the RO has not considered the Veteran's entitlement to a TDIU due to hearing loss, the RO should, after giving the Veteran an opportunity to file a formal claim for a TDIU (and accomplishing other actions, noted below), adjudicate this matter, in the first instance, to avoid any prejudice to him. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). The Veteran most recently underwent VA examination for evaluation of his hearing in February 2009. As noted, since that time, he has alleged worsening of his hearing disability, specifically testifying to additional loss of auditory acuity. Under these circumstances, the evidence currently of record is deemed inadequate to assess the current severity of the disability and further examination of the Veteran is warranted. See 38 C.F.R. § 3.327(a) (2013) (examinations will be requested whenever VA determines that there is a need to determine the exact nature or severity of a disability). See also 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2013); McLendon v. Nicholson, 20 Vet. App. 79 (2006). Hence, the RO should arrange for the Veteran to undergo a VA audiology examination, by an appropriate medical professional, at a VA medical facility. The Veteran is hereby advised that failure to report for the scheduled examination, without good cause, may well result in denial of the claim for an increased rating, as well as the TDIU (which is a claim for increase). See 38 C.F.R. § 3.655(b) (2013). Examples of good cause include, but are not limited to, the illness or hospitalization of the claimant and death of an immediate family member. Id. If the Veteran fails to report for the scheduled examination, the RO must obtain and associate with the claims file a copy of any notice(s) of the date(s) and time(s) of the examination sent to him by the pertinent VA medical facility. Prior to arranging for the Veteran to undergo further examination, to ensure that all due process requirements are met, and that the record is complete, the RO should obtain and associate with the claims file all outstanding, pertinent records. Although the claims file does not reflect VA treatment for hearing loss, the RO/AMC should ensure that the Veteran has not received any such care since records generated by VA facilities that may have an impact on the adjudication of a claim are considered constructively in the possession of VA adjudicators during the consideration of a claim, regardless of whether those records are physically on file. See Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). The RO should follow the current procedures prescribed in 38 C.F.R. § 3.159(c) as regards requests for records from Federal facilities. The claims file also reflects that private treatment records may remain outstanding. Specifically, the Veteran has submitted copies of audiology evaluation and treatment from Kaiser Permanente, which reflect the prescription of hearing aids. Although he testified in August 2012 that he had not received additional treatment, as more than one year has passed since that time, additional treatment records may have been generated. Further, the Veteran also has made statements indicating that potentially relevant employment records are outstanding. Specifically, during the August 2012 hearing and in various written statements to VA, the Veteran reported repeatedly failing audiology tests administered by the CA DoC and stated that he was disqualified from re-employment because he "couldn't hear the ladies and little kids." Although he has submitted copies of a May 2008 CA DoC audiology examination as well as an undated "Report of Peace Officer Medical Examination," there are no records assessing him as unable to hear certain voices or stating that he was disqualified due to his hearing. VA has a duty to advise a claimant of the potential relevance of employment records. See Spurgeon v. Brown, 10 Vet. App. 194, 197-98 (1997). Therefore, the RO should give the Veteran another opportunity to present information and/or evidence pertinent to the claims on appeal. The RO's letter to the Veteran should explain that he has a full one-year period for response. See 38 U.S.C.A § 5103(b) (1) (West 2002); but see 38 U.S.C.A. § 5103(b) (3) (West Supp. 2012) (amending the relevant statute to clarify that VA may make a decision on a claim before the expiration of the one-year notice period). In its letter, the RO should specifically request that the Veteran furnish, or furnish appropriate authorization for the RO to obtain, all outstanding records from the CA DoC as well as from any private medical provider(s). Thereafter, the RO should attempt to obtain any additional evidence for which the Veteran provides sufficient information, and, if needed, authorization, following the current procedures prescribed in 38 C.F.R. § 3.159 (2013). The actions identified herein are consistent with the duties imposed by the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2013). However, identification of specific actions requested on remand does not relieve the RO of the responsibility to ensure full compliance with the VCAA and its implementing regulations. Hence, in addition to the actions requested above, the RO should also undertake any other development and/or notification action deemed warranted by the VCAA prior to adjudicating the claims on appeal in light of all pertinent evidence and legal authority. The RO's adjudication of the claim for an increased rating should include consideration of whether "staged rating" (assignment of different ratings for distinct periods of time, based on the facts found), pursuant to Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007), is appropriate. In adjudicating the claim for a TDIU due to the disability under consideration, if the percentage requirements for award of a schedular TDIU, pursuant to 38 C.F.R. § 4.16(a) are not met, the RO should consider whether the procedures for award of an extra-schedular TDIU, pursuant to 38 C.F.R. § 4.16(b), are invoked. Accordingly, these matters are hereby REMANDED for the following action: 1. Furnish the Veteran a VA Form 21-8940, to enable him to file a formal application for a TDIU due to service-connected bilateral hearing loss. 2. Obtain any outstanding, pertinent records of VA evaluation and/or treatment of the Veteran. The RO must follow the procedures set forth in 38 C.F.R. § 3.159(c) as regards requesting records from Federal facilities. All records and/or responses received should be associated with the claims file. 3. Send to the Veteran and his representative a letter requesting that the Veteran provide sufficient information, and if necessary, authorization to enable it to obtain any additional evidence pertinent to the claim that is not currently of record. Specifically advise the Veteran of the potential relevance of employment records to his claim for an increased rating and for a TDIU. Request that he furnish, or furnish appropriate authorization for VA to obtain on his behalf, any such outstanding records from his former employer-the California Department of Corrections- and/or any private medical provider, to specifically include, but not limited to, Kaiser Permanente. Clearly explain to the Veteran that he has a full one-year period to respond (although VA may decide the claim within the one-year period). 3. If the Veteran responds, assist him in obtaining any additional evidence identified, following the current procedures set forth in 38 C.F.R. § 3.159. All records/responses received should be associated with the claims file. If any records sought are not obtained, notify the Veteran and his representative of the records that were not obtained, explain the efforts taken to obtain them, and describe further action to be taken. 4. After all records and/or responses received from each contacted entity have been associated with the claims file, arrange for the Veteran to undergo a VA audiology examination, by an appropriate medical professional, at a VA medical facility. The entire claims file, to include a complete copy of the REMAND, must be made available to the individual designated to examine the Veteran, and the report of examination should include discussion of the Veteran's documented medical history and assertions. All appropriate test and studies-in particular, audiometry and speech discrimination testing- should be accomplished, with all results made available to the examiner prior to the completion of his or her report. The examiner should provide numeric interpretation of any hearing tests/audiograms conducted. The audiologist should also set forth numeric values for each of the pure tone thresholds at 1000, 2000, 3000, and 4000 Hertz; and then provide the average pure tone threshold for these four frequencies. The reported numeric values and speech recognition scores (Maryland CNC test) must be in conformity with the requirements of 38 C.F.R. § 4.85. The examiner should fully describe the functional effects of the Veteran's hearing loss on his ability to work and his daily life. Then, the examiner should render an opinion, based upon review of the record and consistent with sound medical principles, as to whether-without regard to non-service-connected disability(ies) or advancing age-it is at least as likely as not (i.e., there is a 50 percent or greater probability) that the Veteran's service-connected bilateral hearing loss, alone, renders him unable to obtain or retain substantially gainful employment. All examination findings, along with complete rationale for the conclusions reached, should be set forth in a printed (typewritten) report. 5. If the Veteran fails to report to the scheduled examination, obtain and associate with the claims file (a) copy(ies) of any notice(s) of the date and time of the examination sent to him by the pertinent VA medical facility. 6. To help avoid further remand, ensure that all requested actions have been accomplished (to the extent possible) in compliance with this REMAND. If any action is not undertaken, or is taken in a deficient manner, appropriate corrective action should be undertaken. See Stegall v. West, 11 Vet. App. 268 (1998). 7. After completing the requested actions, and any additional notification and/or development deemed warranted, adjudicate the claim for a higher rating for hearing loss and the claim for a TDIU. If the Veteran fails, without good cause, to report to the scheduled examination, in adjudicating each claim, apply the provisions of 38 C.F.R. § 3.655(b), as appropriate. Otherwise, adjudicate each claim in light of all pertinent evidence (to particularly include all evidence added to the record since the last adjudication) and legal authority (to include consideration of whether "staged rating" pursuant to Hart (cited above), is appropriate; and, with respect to a TDIU, whether the procedures of 38 C.F.R. § 4.16(b), pertaining to extra-schedular TDIUs, are invoked (if appropriate)). 8. If any benefit sought on appeal remains denied, furnish to the Veteran and his representative a supplemental SOC that includes clear reasons and bases for all determinations, and afford them the appropriate time period for response before the claims file is returned to the Board for further appellate consideration. The purpose of this REMAND is to afford due process and to accomplish additional development and adjudication; it is not the Board's intent to imply whether the benefits requested should be granted or denied. The Veteran need take no action until otherwise notified, but he may furnish additional evidence and/or argument during the appropriate time frame. See Kutscherousky v. West, 12 Vet. App. 369 (1999); Colon v. Brown, 9 Vet. App. 104, 108 (1996); Booth v. Brown, 8 Vet. App. 109 (1995); Quarles v. Derwinski, 3 Vet. App. 129, 141 (1992). This REMAND must be afforded expeditious treatment. The law requires that all claims 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). _________________________________________________ JACQUELINE E. MONROE 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 the appeal. 38 C.F.R. § 20.1100(b) (2013).