Citation Nr: 1410178 Decision Date: 03/12/14 Archive Date: 03/20/14 DOCKET NO. 13-03 179 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in New York, New York THE ISSUES 1. Entitlement to a compensable disability rating for the service-connected bilateral hearing loss. 2. Entitlement to a compensable disability rating for the service-connected hypertension. 3. Entitlement to a rating in excess of 50 percent for the service connected posttraumatic stress disorder (PTSD). 4. Entitlement to a total disability rating based on individual unemployability (TDIU) by reason of service-connected disability. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States WITNESSES AT HEARING ON APPEAL The Veteran and his son ATTORNEY FOR THE BOARD S. Nathanson, Associate Counsel INTRODUCTION The Veteran served on active duty from November 1968 to November 1970. These matters come before the Board of Veterans' Appeals (Board) on appeal from a January 2010 rating decision by the RO. The Veteran testified from the RO via videoconference technology at a hearing with the undersigned Veterans Law Judge in December 2013. A copy of the transcript is associated with the claims file. The issue of entitlement to a TDIU rating may be reasonably inferred from the evidence of record. See Rice v. Shinseki, 22 Vet. App. 447 (2009). In addition to the paper claims file, there are Virtual VA and VBMS electronic claims files associated with the Veteran's claim. A review of the documents in the electronic files reveal that they are either duplicative of the evidence in the paper claims file or are not relevant to the issue 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 on his part. REMAND The Veteran seeks a rating in excess of 50 percent for the service-connected PTSD and a compensable evaluation for the service-connected bilateral hearing loss disability and hypertension. At the December 2013 hearing, the Veteran testified that his hypertension and PTSD had increased in severity since the most recent VA examinations in October and November 2009, respectively. In particular, the Veteran indicated that he went to the doctor on three occasions as a result of complications with his hypertension medication and increased blood pressure. The Veteran further testified that, since his most recent VA hearing loss examination in October 2009, he received hearing aids. As such, new examinations to determine the current severity of the bilateral hearing loss disability, hypertension, and PTSD are necessary. See 38 C.F.R. §§ 3.326, 3.327 (reexaminations will be requested whenever VA determines there is a need to verify the current severity of a disability, such as when the evidence indicates there has been a material change in a disability or that the current rating may be incorrect); Snuffer v. Gober, 10 Vet.App. 400, 403 (1997); VAOPGCPREC 11-95. In regard to a TDIU rating, the Court has held that, if the claimant or the record reasonably raises the question of whether the Veteran is unemployable due to the service-connected disability, then part and parcel to that claim for an increased rating is whether a total compensation rating based on individual unemployability (TDIU) is warranted. Rice v. Shinseki, 22 Vet. App. 447 (2009). In reviewing the record in the light most favorable to the Veteran, he essentially asserts that he is unable to work as a result of his service-connected PTSD. Therefore, the RO should develop the claim for a TDIU rating in accordance with Rice v. Shinseki, 22 Vet. App. 447 (2009). Accordingly, the case is REMANDED for the following action: 1. The RO should take appropriate steps to contact the Veteran in order obtain and associate with the record copies of any outstanding VA and private medical records referable to treatment rendered to the Veteran for the service-connected bilateral hearing loss disability, hypertension and PTSD. The Veteran should also be notified that he may submit medical evidence and clinical records to support his claims. 2. The RO should then have the Veteran scheduled for a VA examination to determine the current severity of the service-connected bilateral hearing loss disability. The claims file and a copy of this remand should be provided to the examiner for review. Any studies, tests, and evaluations deemed necessary by the examiner should be performed, to include the Maryland CNC test and a puretone audiometry test. 3. The RO also should have the Veteran scheduled for a VA examination to determine the current severity of the service-connected hypertension. The claims file and a copy of this remand should be provided to the examiner for review. Any studies, tests, and evaluations deemed necessary by the examiner should be performed. 4. The RO also should have the Veteran scheduled for a VA examination to determine the current severity of the service-connected PTSD in light of the applicable rating criteria. The claims file and a copy of this remand should be provided to the examiner for review. 5. The RO also should take all indicated steps to provide the Veteran an application for a TDIU rating under the provisions of 38 C.F.R. § 4.16, based on impairment attributable to his service-connected disabilities, in accordance with Rice v. Shinseki, 22 Vet. App. 447 (2009). Based on his response, the RO should pursue all indicated development in order adjudicate the claim if presented by the Veteran. 6. After completing all indicated development, the RO should readjudicate the claim remaining on appeal in light of all of the evidence of record. If any benefit sought on appeal remains denied, the Veteran and his representative should be furnished a fully responsive Supplemental Statement of the Case, to include addressing any appeal referable to a TDIU rating, and afforded a reasonable opportunity for response. Thereafter, if indicated, the case should be returned to the Board for the purpose of appellate disposition. 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). 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). _________________________________________________ STEPHEN L. WILKINS 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).