Citation Nr: 1337460 Decision Date: 11/18/13 Archive Date: 11/26/13 DOCKET NO. 09-30 948 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUES 1. Entitlement to an initial rating in excess of 30 percent for posttraumatic stress disorder (PTSD). 2. Entitlement to a total disability rating for compensation based on individual unemployability (TDIU) due to service-connected disabilities. 3. Entitlement to service connection for bilateral hearing loss. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD L. Willis, Associate Counsel INTRODUCTION The Veteran served on active duty in the Army from June 1969 to June 1971. These matters come before the Board of Veterans' Appeals (Board) on appeal from a February 2008 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. The Board has not only reviewed the Veteran's physical claims file, but also the electronic record maintained in the Virtual VA system to ensure total review of the evidence. 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, VA must consider whether the veteran is entitled to a total rating for compensation purposes based on individual unemployability (TDIU). Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001). TDIU may be a part of a claim for increased rating. Rice v. Shinseki, 22 Vet. App. 447 (2009). Here, a claim of entitlement to a TDIU was raised by evidence of record indicating that the Veteran is unemployable due to the effects of his PTSD. Accordingly, the Board finds that a claim for TDIU is reasonably raised and will be considered part of the Veteran's claim for an increased rating. 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 In an attachment to his January 2009 Notice of Disagreement, the Veteran states that, "[he] has provided [the VA] medical evidence from a board certified audiologist in which he provides a nexus or link between [his] current bilateral hearing loss with tinnitus and the intense noise to which [he] was exposed [during service]." However, the sole audiological opinion of record is from a VA audiologist at the December 2007 Compensation and Pension examination. As the audiological opinion to which the Veteran refers is not associated with the case file, it should be obtained on remand. The December 2007 examiner noted that she reviewed the Veteran's entrance and separation examinations and found that the Veteran had normal hearing bilaterally. However, the examiner did not indicate whether she considered the shift in the Veteran's hearing from his entrance to separation from service. Specifically, the Veteran's October 1968 audiogram revealed the following puretone thresholds, in decibels: HERTZ 500 1000 2000 3000 4000 RIGHT 0 -10 -5 -10 5 LEFT 5 -5 -5 -5 0 In contrast, the Veteran's March 1971 separation audiogram revealed puretone thresholds of 0 decibels for all tested frequencies in both ears. The apparent shift in hearing acuity should be addressed by a clinician on remand. Turning to the Veteran's PTSD claim, in a July 2009 VA outpatient visit, the Veteran reported that he had been feeling increasingly depressed for the last three months. In an October 2009 letter, the Veteran's wife stated that the Veteran's symptoms had worsened. The Veteran's last Compensation and Pension examination was in December 2007. Therefore, the Board finds that the Veteran should be afforded a new VAX to determine the current nature and severity of his psychiatric disorder. VA's duty to assist includes a duty to provide a medical examination or obtain a medical opinion where it is deemed necessary to make a decision on the claim. 38 U.S.C.A. § 5103A(d) (West 2002); 38 C.F.R. § 3.159(c)(4) (2013). Since there may have been a significant change in the Veteran's condition, and because the most recent VAX is now six years old, the Board finds that a new examination is necessary to fully and fairly assess the merits of his claim. See Snuffer v. Gober, 10 Vet. App. 400 (1997) (a Veteran is entitled to a new examination where there is evidence that the condition may have worsened since the last examination). In a September 2009 statement, the Veteran stated that he had a hard time keeping a job due to his PTSD symptoms. The Veteran also reported that he has had 15 different jobs since service. In a September 2006 Statement, the Veteran's wife stated that the Veteran cannot retain a job due to his PTSD symptoms. In a September 2006 VA outpatient visit, the Veteran reported losing his job. It is unclear how long he was not employed. At his December 2007 examination, he reported being employed for the last 15 months at First Transit as a maintenance man and janitor. He reported that the longest time he has been unemployed has been 3 months. The Board has found that a claim for TDIU is part of this appeal. The Veteran has not received notice regarding that claim. In addition, he should be asked to complete a TDIU claim form so that he can provide information concerning his employment, education, training, and other relevant factors. A VA examination should be conducted which assesses the Veteran's ability to obtain and maintain employment as a result of his service-connected disabilities. Colvin v. Derwinski, 1 Vet. App. 171 (1991); Hatlestad v. Derwinski, 3 Vet. App. 213 (1992). Accordingly, the case is REMANDED for the following action: 1. Request that the Veteran provide or identify any records relevant to his claims, which are not already of record, including the records/opinion from the Board-certified audiologist to which he referred in an attachment to his January 2009 Notice of Disagreement. If, after making reasonable efforts to obtain named records the RO/AMC is unable to secure same, the RO/AMC must notify the Veteran and (a) identify the specific records the AMC is unable to obtain; (b) briefly explain the efforts that the RO/AMC made to obtain those records; (c) describe any further action to be taken by the RO/AMC with respect to the claim; and (d) inform the Veteran that he is ultimately responsible for providing the evidence. The Veteran must then be given an opportunity to respond. 2. Provide the Veteran with notice as to how to substantiate his claim for TDIU and request that the Veteran complete a TDIU claim form. 3. Obtain recent VA treatment records pertaining to the Veteran that are not already of record. 4. After completion of the above, schedule the Veteran for a PTSD examination to assess the severity of his service-connected PTSD. The examiner must review the claims file and must note that review in the report. All indicated tests should be performed, and all findings reported in detail. The examiner should also provide a Global Assessment of Functioning Score and an explanation of what that score represents. The examiner should also provide information as to the impact of the service-connected PTSD on the Veteran's ability/inability to obtain and retain substantially gainful employment in terms of whether the PTSD, either alone or in conjunction with the tinnitus, rendered the Veteran unemployable at any time since August 11, 2006. The examiner should provide a complete rationale for all conclusions reached. 5. Then, obtain a medical opinion concerning the Veteran's claim for service connection for bilateral hearing loss. The claims folder should be made available to and be reviewed by the clinician in conjunction with the examination. The clinician should provide an opinion as to the following question: Is it at least as likely as not (a probability of 50 percent or greater) that the Veteran's hearing loss began in or is related to active service, to include presumed excessive noise exposure therein? In doing so, the clinician should address the significance, if any, of the shift in hearing acuity between the Veteran's October 1968 entrance and March 1971 separation audiograms. The examiner should provide a complete rationale for all conclusions reached. 6. Ensure the development outlined above has been accomplished, and then readjudicate the claim on appeal. If the benefit sought remains denied, issue a supplemental statement of the case and provide the Veteran and his representative the requisite period of time to respond. The case should then be returned to the Board for further appellate review, if otherwise in order. 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). _________________________________________________ S.S. Toth 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).