Citation Nr: 1337368 Decision Date: 11/15/13 Archive Date: 11/26/13 DOCKET NO. 09-21 013 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to a higher initial rating for bilateral hearing loss, rated noncompensable prior to August 25, 2012 and 20 percent disabling since that date. REPRESENTATION Appellant represented by: Daniel G. Krasnegor, Attorney at Law ATTORNEY FOR THE BOARD B. Elwood, Associate Counsel INTRODUCTION The Veteran served on active duty from May 1951 to May 1953. This matter initially came before the Board of Veterans' Appeals (Board) from an August 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In that decision, the RO granted service connection for bilateral hearing loss and assigned an initial noncompensable disability rating, effective June 3, 2008. In November 2009, the Vice Chairman of the Board granted a motion to advance this appeal on its docket pursuant to 38 C.F.R. § 20.900(c) (2013). 38 U.S.C.A. § 7107(a)(2) (West 2002). In December 2009, the Board denied the appeal for an initial compensable rating for bilateral hearing loss. The Veteran appealed the Board's denial to the United States Court of Appeals for Veterans Claims (Court). In an April 2011 memorandum decision, the Court set aside the Board's December 2009 decision, in part, and remanded the case for readjudication in compliance with directives specified in the Court's decision. In January 2012, the Board remanded this matter for further development. The Court has held that entitlement to a total rating for compensation purposes based on individual unemployability (TDIU) due to service-connected disabilities is an element of all appeals for a higher initial rating. Rice v. Shinseki, 22 Vet. App. 447 (2009). Entitlement to a TDIU is raised where a veteran: (1) submits evidence of a medical disability; (2) makes a claim for the highest rating possible; and (3) submits evidence of unemployability. Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001); see Jackson v. Shinseki, 587 F.3d 1106, 1109-10 (2009) (holding that an inferred claim for a TDIU is raised as part of an increased rating claim only when the Roberson requirements are met). The evidence reflects that the Veteran has been unemployed during the claim period and he has reported that he stopped working as a result of his service-connected hearing difficulties. Thus, the issue of entitlement to a TDIU has been raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, it is referred to the AOJ for appropriate action. In addition to the paper claims file, there is a Virtual VA paperless claims file associated with the Veteran's claim. The documents in this file have been reviewed and considered as part of this appeal. The appeal is REMANDED to the Department of Veterans Affairs Regional Office. VA will notify the Veteran if further action is required. REMAND The evidence suggests that the Veteran's service-connected hearing loss may have worsened since his last VA examination in February 2013. For example, an August 2013 audiological examination report from Orlando Ear, Nose, & Throat Associates, P.A. indicates that the puretone thresholds in the Veteran's right ear had worsened since the February 2013 examination. Given this evidence, VA's duty to obtain a new examination as to the current severity of the Veteran's service-connected bilateral hearing loss is triggered. Moreover, the Veterans Claims Assistance Act of 2000 (VCAA) requires VA to make reasonable efforts to help a claimant obtain evidence necessary to substantiate his claim. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159(c), (d) (2013). The VCAA's duty to assist includes a duty to help a claimant obtain records relevant to his claim, whether or not the records are in Federal custody. 38 C.F.R. § 3.159(c)(4). In his June 2008 claim (VA Form 21-4138), the Veteran reported that records pertaining to treatment for hearing loss were available at the VA Medical Center in Orlando, Florida (VAMC Orlando). The only treatment records included in the claims file and among the Veteran's paperless records in the Virtual VA system that have been obtained from this facility are dated from October 2009 to February 2013. Also, an October 2009 VA administrative note reflects that additional relevant records may be contained in the Tampa Vista electronic records system and the North Florida/South Georgia Vista electronic records system. Thus, it appears that there may be additional VA treatment records that have not yet been obtained. VA has a duty to obtain any additional relevant records. 38 U.S.C.A. § 5103A(b),(c); Bell v. Derwinski, 2 Vet. App. 611, 612-13 (1992). Additionally, the Veteran submitted an audiology examination report from Jeffrey M. Laskoff, M.D. dated in September 2011. Although the examination report reflects that speech recognition ability was recorded as being 72 percent in the right ear and 76 percent in the left ear, it is unclear whether the reported speech recognition thresholds were obtained using the Maryland CNC test as required by 38 C.F.R. § 4.85 (2013). Thus, a remand is also necessary to seek clarification from Dr. Laskoff as to what standard was used to test the Veteran's speech recognition ability. See Savage v. Shinseki, 24 Vet. App. 259, 269 (2011) (clarification from a private medical examiner must be sought when an examination report is unclear or insufficient and the missing information is relevant, factual, and objective). 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) (2013). Expedited handling is requested.) 1. Ask Dr. Laskoff to clarify whether the speech recognition data recorded during the September 2011 examination was obtained using the Maryland CNC test or another standard. Ask the Veteran for any necessary assistance in obtaining this clarification. 2. Obtain and associate with the claims file all records of the Veteran's treatment for hearing loss from VAMC Orlando dated prior to October 2009 and from February 2013 through the present, contained in the Tampa Vista electronic records system, contained in the North Florida/South Georgia Vista electronic records system, and from any other sufficiently identified VA facility. All efforts to obtain these records must be documented in the claims file. Such efforts shall continue until the records are obtained or it is reasonably certain that they do not exist or that further efforts to obtain them would be futile. 3. After all efforts have been exhausted to obtain and associate with the claims file any additional treatment records, schedule the Veteran for a VA audiological examination to assess the current severity of his service-connected bilateral hearing loss. The claims folder, including this remand and any relevant records contained in the Virtual VA system, along with any records obtained pursuant to this remand, must be sent to the examiner for review. All indicated tests and studies, including a puretone audiometry test and a speech recognition test (Maryland CNC test), shall be conducted, and the results of such testing shall be included in the examination report. The examiner must also fully describe the functional effects of the Veteran's hearing disability. The examiner must provide reasons for any opinion given. 4. If, after completion of steps 1 through 3 above, the Veteran is not determined to be 100 percent disabled according to the rating criteria as a result of his service-connected hearing loss since the effective date of service connection, the AOJ shall consider whether his case should be referred for extraschedular consideration under 38 C.F.R. § 3.321(b)(1) (2013). The reasons and bases for the determination shall be set forth in detail. In the event that it is determined that such a referral is not warranted, the AOJ shall discuss how the findings contained in a February 1995 letter from Audiological Rehabilitation Lab, Inc., a February 2001 medical report, and the reports of VA examinations conducted in August 2008, August 2012, and February 2013 were contemplated by the rating schedule. 5. If the benefit sought on appeal remains denied, the AOJ shall issue a supplemental statement of the case. After the Veteran is given an opportunity to respond, the case shall be returned to the Board. No action is required of the Veteran until he is notified by the AOJ; however, the Veteran is advised that failure to report for any scheduled examination may result in the denial of his claim. 38 C.F.R. § 3.655 (2013). 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). _________________________________________________ THOMAS J. DANNAHER 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).