Citation Nr: 1341925 Decision Date: 12/18/13 Archive Date: 12/31/13 DOCKET NO. 13-01 148 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Reno, Nevada THE ISSUES 1. Entitlement to a compensable rating for bilateral hearing loss. 2. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Jarrette A. Marley, Associate Counsel INTRODUCTION The Veteran had active service from June 1946 to May 1948. These matters come before the Board of Veterans' Appeals (Board) on appeal from a February 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In a January 2012 rating decision, the RO, in part, granted service connection for bilateral hearing loss and assigned a noncompensable rating, effective April 30, 2010. The Veteran's claim for an increased rating for bilateral hearing loss was previously before the Board in June 2013 when it was remanded to afford the Veteran a hearing. In November 2013, a video conference hearing was held before the undersigned; a transcript of the hearing is associated with the claims file. The issue of entitlement to a TDIU rating was not certified for appeal. However, when there is evidence of unemployability that is submitted during the course of an appeal for an increased disability rating, a claim for a TDIU rating will be considered part of the claim for benefits for the underlying disability. Rice v. Shinseki, 22 Vet. App. 447 (2009). In this case, at the November 2013 video conference hearing, the Veteran testified he was unable to work due to his bilateral hearing loss. As the evidence suggests that he may be unemployable due to his bilateral hearing loss, the issue of entitlement to a TDIU rating must be considered. As such, the Board has identified the issues on appeal as characterized on the preceding page. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). 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 While the Board regrets additional delay in the adjudication of the Veteran's claim, the Board finds that the matters on appeal must be remanded for additional development. In regards to the Veteran's claim for an increased rating for bilateral hearing loss, the Veteran was last afforded a VA audiology examination in January 2012. In Martinak v. Nicholson, 21 Vet. App. 447, 455 (2007), the Court held that a VA audiologist conducting a VA audiological evaluation must fully describe the functional effects caused by a hearing disability in his or her final report. The Board notes that on January 2012 VA audiological evaluation, the examiner found the functional effect of the Veteran's hearing loss on his daily life, including his ability to work, was difficulty participating in his health care treatment. Notably, at the November 2013 video conference hearing, the Veteran testified that he is trained as a chef and could not secure any employment as a chef because his hearing is severely impaired. Notably, on October 10, 2008, the Veterans Benefits Administration issued Fast Letter 08-33 reinstating the requirement for audiologists to comment on the effects of the condition on occupational function and daily activities. This replaced the requirement for the audiologist to comment on the situation of greatest difficulty. The January 2012 VA audiological evaluation contains no comment on the effects of the Veteran's hearing loss on his occupational function. Based on governing caselaw in Martinak, the January 2012 audiologist should have commented on the effect of the Veteran's hearing loss has on his daily activities and occupational functioning. Therefore, the Board must find this examination is also not adequate to the extent the audiologist did not discuss the functional effects of the Veteran's service-connected hearing loss. Once VA has provided a VA examination, it is required to provide an adequate one. Barr v. Nicholson, 21 Vet. App. 303 (2007). In addition, the Board finds the Veteran's claim for TDIU is inextricably intertwined with his claim for an increased rating for bilateral hearing loss. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (where a claim is inextricably intertwined with another claim, the claims must be adjudicated together). The assignment of an increased rating for the Veteran's bilateral hearing loss may impact whether the Veteran satisfies the schedular requirements for a TDIU rating, as set forth in 38 C.F.R. § 4.16(a). Thus, a decision by the Board on the Veteran's TDIU claim would, at this point, be premature. See Tyrues v. Shinseki, 23 Vet. App. 166, 177 (2009) (en banc) (explaining that claims are inextricably intertwined where the adjudication of one claim would have a significant impact on the adjudication of another claim). 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) (2012). Expedited handling is requested.) 1. Send VCAA notice to the Veteran that apprises him of the information and evidence needed to substantiate his claim for a total disability rating based on individual unemployability due to service-connected disabilities. 2. Notify the Veteran that he may submit lay statements from himself as well as from other individuals who have first-hand knowledge of the impact of his hearing loss on his ability to work. The Veteran should be provided an appropriate amount of time to submit this lay evidence. 3. After associating all outstanding records with the claims file, physically or electronically, schedule the Veteran for an examination to determine the current nature and severity of his service-connected bilateral hearing loss. The claims file should be made available to the examiner for review. In addition to objective test results, the examiner should fully describe the functional effects caused by the Veteran's hearing loss in his or her final report and the impact of such on his employability. The examiner should also address whether, and to what extent, his hearing loss decreases his ability to communicate effectively with other people. In addressing the functional effects of the Veteran's hearing loss on his occupational functioning generally, the examiner should consider his employment history, educational background, and day-to-day functioning in relating to his bilateral hearing loss. The examiner must also opine 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, either alone or in the aggregate, render him unable to secure or follow a substantially gainful occupation. A complete rationale for all opinions expressed must be provided, to include if the examiner determines an opinion cannot be provided without resort to speculation. 4. After completing any additional development deemed necessary, readjudicate the claim. The decision should reflect consideration of whether the Veteran is entitled to a TDIU rating. If the benefit sought is denied, issue a supplemental statement of the case and provide the Veteran and his representative an opportunity to respond before returning the case to the Board. 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. 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) (2013).