Citation Nr: 1338587 Decision Date: 11/22/13 Archive Date: 12/06/13 DOCKET NO. 05-25 339A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Huntington, West Virginia THE ISSUES 1. Entitlement to a compensable rating prior to May 8, 2003, and to a rating higher than 10 percent beginning May 8, 2003, for bilateral hearing loss. 2. Entitlement to a total disability rating based upon individual unemployability (TDIU). REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD P. Childers, Counsel INTRODUCTION The Veteran served on active duty from October 1956 to October 1958; and from January 1960 to October 1972. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions issued in April 2002 and August 2004 by a Department of Veterans Affairs (VA) Regional Office (RO). The April 2002 rating decision denied a claim for an increased rating for bilateral hearing loss; which the Veteran appealed. The August 2004 rating decision increased the rating for bilateral hearing loss to 10 percent, and denied entitlement to TDIU. The case is currently under the jurisdiction of the Huntington, West Virginia RO. In November 2008, January 2011, and September 2012 the Board remanded the case for additional development. On review of the claims file the Board finds that further procedural and evidentiary is needed. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, D.C. VA will notify the appellant if further action is required. REMAND With regard to the claim for an increased rating for bilateral hearing loss, the evidence of record includes a December 2003 audiology report from a private provider. Unfortunately, this evidence has never been considered by the agency of original jurisdiction. Additionally, while hearing thresholds and speech discrimination scores were reported, it is unclear whether such scores were based on the Maryland CNC test. Remand for clarification is warranted. See Savage v. Shinseki, 24 Vet. App. 259 (2011) (holding that that it was error for VA not to seek clarification from a private doctor as to whether an audiological hearing report was based on the Maryland CNC test, or explain why such clarification was not needed or was unreasonable). In addition, in February 2013 the Veteran was accorded a new VA psychiatric examination. During the examination he reported increased symptoms, including irritability and difficulty interacting with others, and to suicidal ideation; and his GAF score was 55. This is contrasted with a GAF score of 65 on last VA examination in October 2009, which the Board finds raises an informal claim of entitlement to a higher rating for psychiatric disability. As such, on remand the RO must adjudicate whether a higher rating is warranted for his psychiatric disability. See 38 C.F.R. § 3.157 (2013). As the propriety of the assigned rating for the Veteran's psychiatric disability is inextricably intertwined with his TDIU claim (see Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (holding that two issues are "inextricably intertwined" when they are so closely tied together that a final Board decision cannot be rendered unless both issues have been considered)), and as there is an indication that the Veteran's service-connected psychiatric has worsened, the issue of a rating higher than 50 percent for anxiety disorder, not otherwise specified (claimed as PTSD) is remanded for adjudication. On remand all VA treatment records dated after December 2010 should be associated with the claims file. See Bell v. Derwinski, 2 Vet. App. 611 (1992). Lastly, the issue of entitlement to TDIU should be sent for an opinion. Accordingly, the case is REMANDED for the following action: 1. Send VCAA notice to the Veteran on the issue of a rating higher than 50 percent for psychiatric disability. 2. Associate, with the claims file, physically or electronically, all of the Veteran's VA medical records dated after December 2010. Any other pertinent records identified by the Veteran during the course of the remand should also be obtained and associated with the claims file, following the receipt of any necessary authorizations from the Veteran. 3. Notify the Veteran that he may submit lay statements from himself and from other individuals who have first-hand knowledge of the nature, extent and severity of his psychiatric disorder and their impact on his social functioning and ability to work. The Veteran should be provided an appropriate amount of time to submit this lay evidence. 4. After completion of steps 2-4, adjudicate the issue of a rating higher than 50 percent for anxiety disorder, not otherwise specified (claimed as PTSD). 5. Contact the private audiologist that conducted the December 2003 audiology examination and request clarification as to whether the speech discrimination scores reported in the December 2003 audiology report were based on the Maryland CNC test. All actions to obtain this information must be fully documented in the claims file. 6. After completion of steps 1 through 6, send the claims file for an opinion, preferably by a VA vocational rehabilitation specialist, as to whether, without regard to the Veteran's age or the impact of any nonservice-connected disabilities, it is at least as likely as not that his service-connected disabilities, which at this time consist of bilateral hearing loss, tinnitus, recurrent lipomas, and anxiety disorder, either alone or in the aggregate, render him unable to secure or follow substantially gainful employment. In formulating this opinion the examiner should note that the Veteran has been determined, by the Social Security Administration, to be disabled based primarily on his psychiatric disorder (depression), and secondarily on his hearing loss disorder. A complete rationale for all opinions expressed and conclusions reached must be set forth in a legible report. 7. Then, re-adjudicate the appeal for an increased rating for bilateral hearing loss, and the appeal for entitlement to TDIU. Consideration must be given to all evidence not previously acknowledged, including the December 2003 audiology evidence. If any benefit sought on appeal remains denied furnish the Veteran and his representative a supplemental statement of the case and provide an opportunity for response. Then, return the case to the Board for appellate review. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims 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). _________________________________________________ STEVEN D. REISS 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).