Citation Nr: 1334009 Decision Date: 10/28/13 Archive Date: 11/06/13 DOCKET NO. 12-02 481A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Diego, California THE ISSUES 1. Entitlement to a compensable initial evaluation for bilateral hearing loss disability. 2. Entitlement to a total disability rating for compensation purposes based on individual unemployability (TDIU). ATTORNEY FOR THE BOARD A. Budd, Associate Counsel INTRODUCTION The Veteran served on active duty from February 1958 through October 1961. This matter is before the Board of Veterans' Appeals (Board) on appeal from a March 2010 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California. 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 most recent examination of the Veteran's hearing loss took place in April 2011. Statements of record from the Veteran appear to suggest that his bilateral hearing loss disability may have worsened since then, including with consideration of the effects of this disability on the Veteran's occupational functioning and daily activities. See Martinak v. Nicholson, 21 Vet. App. 447 (2007). In September 2010 and February 2012, the Veteran indicated that his hearing loss prevents him from obtaining and maintaining substantially gainful employment. A request for a TDIU, whether expressly raised by the Veteran or reasonably raised by the record, is not a separate "claim" for benefits, but rather, can be part of a claim for increased compensation. Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). In other words, if the claimant or the evidence of record reasonably raises the question of whether the veteran is unemployable due to a disability for which an increased rating is sought, then part and parcel with the increased rating claim is the issue of whether a TDIU is warranted as a result of that disability. Id. The Veteran's statements as to his employability reasonably raise the question of entitlement to a TDIU. In spite of the Veteran's failure to respond to the RO's June 2012 letter asking him to clarify whether he indeed intended to file a claim for TDIU, the issue of TDIU must still be adjudicated as part and parcel of the claim for an increased rating for the service-connected bilateral hearing loss. Id. In this regard, a medical opinion is necessary to determine whether the Veteran is unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities. Friscia v. Brown, 7 Vet. App. 294 (1995) (VA has a duty to supplement the record by obtaining an examination that includes an opinion on the effect the appellant's service-connected disabilities have on his ability to work). The statement of the case, the February 2012 appeal form 9, and the Veteran's September 2010 statement, all reference letters from the Veteran's current and/or former employers that discuss the ways in which the Veteran's disability impacts his ability to work. These letters have not been included with the record. Moreover, the Veteran's notice of disagreement (NOD), purportedly dated July 9, 2010, is also not included with the record. Accordingly, the RO must locate these missing documents and associate them with the claims file. Updated VA treatment records must also be obtained. See 38 U.S.C.A. § 5103A(c) (West 2002); Bell v. Derwinski, 2 Vet. App. 611 (1992). Accordingly, the case is REMANDED for the following action: 1. Review the claims folder and ensure that all notification and development actions required by the Veterans Claims Assistance Act of 2000 (VCAA) are fully complied with and satisfied with respect to the claim for a TDIU. Ask the Veteran to complete a VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability, to obtain relevant education and employment information. The Veteran must be given an opportunity to respond to the notice, and any additional information or evidence received must be associated with the claims file. 2. The RO must conduct a search to locate the Veteran's July 9, 2010 NOD, and the letters from the Veteran's current and/or former employers, attesting to his inability to maintain substantially gainful employment, as referenced in the statement of the case, the February 2012 appeal form 9, and the Veteran's September 2010 statement. If located, these documents must be associated with the record. All efforts to locate these documents should be documented in the claims file. If the records cannot be located, the Veteran must be notified and provided the opportunity to resubmit the information. 3. Contact the Loma Linda VAMC and request records pertaining to the Veteran since December 2011. If any records cannot be obtained after reasonable efforts have been made, notify the Veteran and allow him the opportunity to provide such records, as provided in 38 U.S.C.A. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 4. Schedule the Veteran for a VA examination in connection with his claim for a TDIU. The claims folder must be reviewed in conjunction with the examination. All appropriate testing must be performed, to include pulmonary function testing, audiometric testing, and CNC word list speech recognition testing, and the examiner must fully describe the effects of the hearing loss disability on the Veteran's occupational functioning and daily activities. The examiner is requested to provide an opinion as to whether it is at least as likely as not that the Veteran's service-connected disabilities (asthmatic bronchitis, 30%; tinnitus, 10%; and hearing loss, noncompensable), considered in combination, preclude his ability to obtain or retain substantially gainful employment consistent with his educational and occupational history, without regard to his age or nonservice connected disabilities. A complete rationale for all opinions expressed must be provided. If the examiner feels that the requested opinion cannot be rendered without resorting to speculation, the examiner should state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e., no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e., additional facts are required, or the examiner does not have the needed knowledge or training). 5. Thereafter, readjudicate the issues. If any benefit sought is not granted, issue a supplemental statement of the case and afford the Veteran an appropriate opportunity to respond. The case should then be returned to the Board, as warranted. 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 or by the United States Court of Appeals for Veterans Claims (Court) 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). _________________________________________________ U. R. POWELL Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board is appealable to the Court. 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).