Citation Nr: 1337087 Decision Date: 11/14/13 Archive Date: 11/26/13 DOCKET NO. 10-22 300 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD L. Jeng, Counsel INTRODUCTION The Veteran had active military service from January 1963 to January 1966. This case comes before the Board of Veterans' Appeals (Board) on appeal from a December 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. In October 2012, the Board remanded this matter for further development which has been completed, and the case has been returned to the Board for appellate consideration. The Board notes that, in addition to the paper claims file, there is a Virtual VA electronic claims file associated with the Veteran's claim. A review of the documents in the electronic file reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issues on appeal. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required. REMAND As noted above, the Board remanded this matter in October 2012. The Board instructed the AMC to undertake development to obtain a copy of the 2001 job description for the position of manufacturing engineer from the Veteran's former employer. The Board indicated that the Veteran and his representative were to be notified of all unsuccessful effort to obtain these records. Pursuant to the Board's remand, the AMC sent the Veteran a letter in October 2012 requesting that he provide or assist in obtaining a copy of the 2001 job description. However, there are no other records related to this action, to include notification to the Veteran and his representative of unsuccessful efforts to obtain these records. On remand, one more attempt should be made to obtain these records and if they are not obtained, the Veteran and his representative must be notified of the efforts made to obtain these records. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (noting that where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance). Additionally, the Board instructed the AMC to obtain an examination to assess the effect that the Veteran's service-connected bilateral hearing loss disability and tinnitus would be expected to have on his employability. The Board requested that the examiner specifically discuss the functional limitations associated with the Veteran's bilateral hearing loss disability and tinnitus, and their expected effect on the various duties the Veteran would be expected to perform in the position of manufacturing engineer. In providing these instructions, the Board noted that a December 2009 VA examination report finding that with amplification and/or reasonable accommodations as specified by the Americans with Disabilities Act (ADA), the Veteran's hearing loss alone should not significantly affect vocational potential or limit participation in most work activities, and that employment would be more than feasible in a loosely supervised situation. The Board observed that this opinion was inconsistent with a February 2010 private opinion noting that the Veteran's hearing loss and tinnitus essentially rendered him unemployable. Subsequent to the Board's remand, the Veteran was afforded an examination in January 2013. Upon review of the claims folder and evaluation of the Veteran, the VA examiner noted that with amplification and/or reasonable accommodations as specified by the ADA, the Veteran's hearing loss alone should not significantly affect vocational potential or limit participation in most work activities. The examiner noted that employment would be more than feasible in a loosely supervised situation. As to tinnitus, the examiner indicated that there would be no impact on daily life, including the ability to work. The Board notes that this opinion is nearly identical to the one cited in the December 2009 VA examination report. Significantly, in rendering her opinion, the January 2013 VA examiner failed to address the private medical evidence of record. The Board notes that when the claim was last remanded, no description for the position of manufacturing engineer from the Veteran's former employer had been obtained. If on remand, such a description is still not obtained, the Veteran should be requested to provide a description of his duties to the VA examiner. Therefore, on remand, the Veteran must be afforded another examination to determine the effect of his service-connected hearing loss disability and tinnitus on employability. See id. Also, the Board notes that prior to January 16, 2013, the Veteran's hearing loss was evaluated as 50 percent disabling and then 60 percent disabling thereafter. He is also service-connected for tinnitus, evaluated as 10 percent disabling. Pursuant to 4.16(a)(2), disabilities resulting from a common etiology will be considered one disability for the purpose of determining whether the 60 percent threshold schedular consideration for the grant of TDIU under 38 C.F.R. § 4.16(a) is met. As the Veteran's hearing loss disability and tinnitus are considered one disability and when those evaluations are combined, pursuant to the table found at 38 C.F.R. § 4.25, the resulting disability evaluation for the Veteran's service-connected hearing disabilities meets the schedular consideration for a TDIU. In this regard, in the March 2013 supplemental statement of the case, the AMC erroneously found that the Veteran did not meet the schedular requirements for a TDIU. Therefore, on remand, the AMC must readjudicate the Veteran's claim to include consideration that he meets the schedular requirements of a TDIU. Accordingly, the case is REMANDED for the following actions: 1. Undertake appropriate development to include asking the Veteran to provide or assist in obtaining a copy of the 2001 job description for the position of manufacturing engineer from the Veteran's former employer. If such efforts yield negative results, a notation to that effect should be inserted in the file. The Veteran and his representative are to be notified of unsuccessful efforts in this regard, in order to allow them the opportunity to obtain and submit those records for VA review. 2. Schedule the Veteran for a VA examination by an examiner with appropriate expertise to assess the effect that the Veteran's service-connected bilateral hearing loss disability AND tinnitus would be expected to have on his employability. The claims file, to specifically include the October 2012 Board remand, must be made available to and reviewed by the examiner. The examiner must indicate on the examination report that such a review was undertaken. All indicated studies should be performed. If as a result of this remand, the 2001 job description for the position of manufacturing engineer from the Veteran's former employer has not been obtained, the examiner should elicit from the Veteran a description of his duties. Based on the examination results and a review of the record, the examiner should provide an opinion as to whether the Veteran's service-connected bilateral hearing loss disability AND tinnitus alone are sufficient to render him unable to secure or follow a substantially gainful occupation. In forming the requested opinion, the examiner should specifically discuss the functional limitations that are associated with the Veteran's bilateral hearing loss disability and tinnitus, and their expected effect on the various duties the Veteran would be expected to perform in the position of manufacturing engineer. The examiner must address the February 2012 private audiologist's medical opinion report indicating that the Veteran's severe hearing loss and tinnitus had essentially rendered him unemployable. The complete rational for all opinions expressed must be provided. 3. Confirm that any VA examinations and medical opinions provided comport with this remand and undertake any other development determined to be warranted. 4. Readjudicate the Veteran's claim on appeal based on a de novo review of the record, and specifically considering that the Veteran meets the schedular requirements for a TDIU. If the benefit sought on appeal is not granted to the Veteran's satisfaction, the Veteran and his representative should be furnished a Supplemental Statement of the Case and provided an appropriate opportunity to respond. Thereafter, if indicated, the case should be returned to the Board for further appellate action. The Veteran has the right to submit additional evidence and argument on the matter 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. 2012). _________________________________________________ MICHAEL A. PAPPAS 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).