Citation Nr: 1415067 Decision Date: 04/07/14 Archive Date: 04/15/14 DOCKET NO. 10-33 225 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES 1. Entitlement to a compensable rating for bilateral hearing loss, to include on an extraschedular basis. 2. Entitlement to a total disability evaluation for compensation based on individual unemployability, to include on an extraschedular basis. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD A. Adamson, Counsel INTRODUCTION The Veteran served on active duty from March 1970 to November 1971. This matter comes properly before the Board of Veterans' Appeals (Board) on appeal from a rating decision by the Department of Veterans Affairs (VA) Regional Office in Roanoke, Virginia (RO). A total disability rating based on individual unemployability (TDIU) is part of increased rating claims where the Veteran claims his disability causes unemployability. Rice v. Shinseki, 22 Vet. App. 447 (2009). Throughout the course of the Veteran's claim for a compensable rating for his bilateral hearing loss, to include at his August 2012 Board hearing, the Veteran has maintained that his service connected disabilities, to include his bilateral hearing loss, have caused marked interference with his ability to obtain and maintain substantially gainful employment. The issue of entitlement to a TDIU is raised by way of this evidence. As the issue of TDIU is "part and parcel" of a claim for an increased rating, the issue of entitlement to a TDIU is before the Board. Id. Following the Veteran's disagreement with the March 2010 rating decision related to tinnitus, the RO issued a July 2010 statement of the case. The Veteran perfected this claim by way of an August 2010 VA Form 9 Substantive Appeal. In February 2012, the Veteran submitted a statement indicating his desire to withdraw this aspect of his appeal. In a July 2012 statement, and again at his August 2012 Board hearing, the Veteran indicated his desire to continue the appeal as to tinnitus. However, the withdrawal of an appeal will be deemed a withdrawal of the notice of disagreement and, if filed, the Substantive Appeal, as to all issues to which the withdrawal applies. Withdrawal does not preclude the filing a new notice of disagreement and, after a statement of the case is issued, a new Substantive Appeal, as to any issue withdrawn, provided such filings would be timely under these rules if the appeal withdrawn had never been filed. 38 C.F.R. § 20.204(c) (2013). There are no statutory or regulatory provisions allowing for reinstatement of an appeal once it has been withdrawn and the time period for perfecting an appeal has expired. Because the Veteran's attempt to reinstate his appeal as to tinnitus was not within the period during which it would be timely if the withdrawal had never been filed, the issue cannot be reinstated and it is, therefore, not within the Board's jurisdiction. The issue of entitlement to service connection for vertigo, including as secondary to bilateral hearing loss, was denied by way of a September 2011 rating decision, after which the Veteran filed a June 2012 notice of disagreement. The RO issued a statement of the case in April 2013. A September 2013 letter within the Veteran's electronic claims file indicates that the Veteran submitted a VA Form 9 in August 2013, but that VA did not accept it as timely. An October 2013 letter in the VA electronic claims file indicates that the Veteran disagreed with the September 2013 decision as to timeliness. The referenced correspondence from the Veteran is not found within the evidence of record; however, the records available for the Board's review are indicative of a pending appeal as to the timeliness of a VA Form 9 on the issue of entitlement to service connection for vertigo. This issue is referred to the RO for appropriate disposition. The appeal is remanded to the RO via the Appeals Management Center in Washington, DC. REMAND The Veteran's claim that he is entitled to a compensable rating for bilateral hearing loss is centered on the contention that this service-connected disability markedly interferes with his ability to maintain substantially gainful employment, and causes severe functional limitations in his life. In October 2008, he described the disability as "unbearable; preventing sleep and making work very difficult." A December 2009 statement from his representative notes that he was no longer able to be a small truck farmer due to the pain caused by noise of farm equipment. The representative suggested his livelihood was in "severe jeopardy." In an April 2010 statement, the Veteran reported that he can no longer either attend loud gatherings, or sit quietly and read a book. He also reported that he cannot focus, that he cannot physically exert himself in excess of a walk due to pounding in his ears, that he cannot climb a ladder or drive more than ten miles. He reported waking up with regret that he has to face another day with his symptoms. At his August 2012 Board hearing, the Veteran confirmed that he now sold vegetables at a stand, but that the hearing loss markedly interferes with his ability to secure substantially gainful employment. He also reported that due to his disability, his wife now sleeps in a separate room. The Veteran has undergone several VA examinations during the period of this claim, the most recent of which was in March 2012. In addition to audiogram, the examiner answered in the affirmative as to whether the Veteran's hearing loss impacts the ordinary conditions of daily life, including his ability to work. The examiner, however, merely reported that the Veteran has difficulty hearing in noisy places that his hearing loss impacts his job function, and that comprehension is tough. Neither this VA examination report, nor any of the prior audiology evidence, includes any true discussion of the effect of the Veteran's hearing loss disability on occupational functioning and daily activities. Martinak v. Nicholson, 21 Vet. App. 447, 455-56 (2007). Thus, to this extent, the examination reports are inadequate. When the medical evidence is inadequate, VA must supplement the record by seeking an advisory opinion or ordering another medical examination. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (holding that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). The issue of whether a compensable rating is warranted for the service-connected bilateral hearing loss must be remanded for an opinion discussing the functional impact of the disability, which takes into account all evidence of record, including that noted above. As to the extent to which the Veteran asserts that his bilateral hearing loss should receive a compensable rating on an extraschedular basis, the Board notes that disability ratings are based as far as practicable, upon the average impairment of earning capacity. In exceptional cases where the schedular evaluations are found to be inadequate, an extraschedular evaluation may be assigned commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities. The governing norm in these exceptional cases is a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards. 38 C.F.R. § 3.321(b)(1) (2013). The Board itself may not assign an extraschedular rating in the first instance, but must leave that initial determination to the Under Secretary for Benefits or the Director of the Compensation Service. Bowling v. Principi, 15 Vet. App. 1, 10 (2001) (recognizing that "the [Board] is not authorized to assign an extraschedular rating in the first instance under 38 C.F.R. § 3.321(b)" or § 4.16(b)); Smallwood v. Brown, 10 Vet. App. 93, 98 (1997); Floyd v. Brown, 9 Vet. App. 88, 94-95 (1996). The Board may, however, consider and adjudicate the issue of whether the RO should refer such a matter to appropriate personnel for extraschedular consideration pursuant to the procedures of 38 C.F.R. §§ 3.321(b)(1) and further may determine, after an initial review by the authorities pursuant to §§ 3.321(b)(1), the propriety of assigning an extraschedular evaluation. See Smallwood, 10 Vet. App. at 98 (acknowledging that precedent did "not limit the [Board's] duty to consider whether an extra-schedular rating should be addressed by the appropriate official"); Floyd, 9 Vet. App. at 94-95 ("38 C.F.R. § 3.321(b)(1) acts as a funnel to channel requests for an extraschedular rating through certain officials who possess the delegated authority to assign such a rating in the first instance"). In this case, the Board finds that such consideration must occur, as it is the basis upon which the Veteran claims an increased rating is warranted. Furthermore, a grant of a TDIU on a schedular basis requires one service-connected disability rated at 40 percent or more with additional service-connected disabilities resulting in a combined disability evaluation of 70 percent or more; or requires one disability rated 60 percent, which may include disabilities resulting from a common etiology. 38 C.F.R. § 4.16(a) (2013). Effective July 10, 2012, tinnitus was assigned a rating of 10 percent and bilateral hearing loss a noncompensable rating. Service connection was established for posttraumatic stress disorder (PTSD), with a 50 percent rating, effective August 1, 2012, making the Veteran's combined rating 60 percent. The Veteran's case must therefore be considered for potential referral to the Director of the Compensation Service, for consideration of TDIU on an extraschedular basis if he is unemployable by reason of service-connected disabilities which fail to meet the regular schedular standards. 38 C.F.R. § 4.16(b). The Board indeed recognizes the extent to which this issue is inextricably intertwined with the issue of whether a compensable rating is warranted for bilateral hearing loss. Nonetheless, in the interest of efficiency in evidentiary development, the Board finds that additional development is warranted in this case to ascertain whether unemployability is present due to the Veteran's service-connected disorders, to include bilateral hearing loss, tinnitus and PTSD, so as to warrant referral for extraschedular consideration. Id. The Veteran has also not been afforded adequate notice of the evidence necessary to establish a claim for TDIU. Accordingly, on remand, the Veteran should be provided with an updated notice letter for the TDIU issue. Finally, subsequent to the issuance of the May 2012 supplemental statement of the case, VA outpatient records related to the Veteran's hearing loss were associated with the VA electronic claims file. An April 2013 deferred rating decision shows that the RO did not readjudicate the claim, because the claim was "under BVA jurisdiction." RO consideration of the additional evidence was not waived. Accordingly, the RO must be given the opportunity to review this evidence before the Board can enter a decision. See 38 C.F.R. § 20.1304(c) (2013). Accordingly, the case is remanded for the following action: 1. The RO must provide the Veteran appropriate statutory and regulatory notice regarding the issue of TDIU on appeal, to include both on a schedular and extraschedular basis. 2. The RO must contact the Veteran and afford him the opportunity to identify or submit any additional pertinent evidence in support of his claims for an increased rating for bilateral hearing loss and for a TDIU, to include any VA or non-VA evidence. Based on his response, the RO must attempt to procure copies of all records which have not previously been obtained from identified treatment sources. When requesting records not in the custody of a Federal department or agency, such as private treatment records, the RO must make an initial request for the records and at least one follow-up request if the records are not received or a response that records do not exist is not received. All attempts to secure this evidence must be documented in the claims file by the RO. If, after making reasonable efforts to obtain named records, the RO is unable to secure same, the RO must notify the Veteran and (a) identify the specific records the RO is unable to obtain; (b) briefly explain the efforts that the RO made to obtain those records; (c) describe any further action to be taken by the RO with respect to the claim; and (d) that he is ultimately responsible for providing the evidence. The Veteran and his representative must then be given an opportunity to respond. 3. The Veteran must be afforded a new VA examination to determine the severity of his service-connected bilateral hearing loss. The claims file and all electronic records must be made available to the examiner, and the examiner must specify in the examination report that these records have been reviewed. The examiner must specify the dates encompassed by the electronic records that were reviewed. All pertinent symptomatology and findings must be reported in detail. Any indicated diagnostic tests and studies, to include an audiogram, must be accomplished. Specifically, the results of the audiological evaluation must state, in numbers, the findings of puretone decibel loss at 500, 1000, 2000, 3000, and 4000 Hertz; provide the puretone threshold average; and must also state the results of the word recognition test, in percentages, using the Maryland CNC test. The VA examiner must also describe the functional effects of the Veteran's service-connected bilateral hearing loss, to include an assessment as to how the Veteran's service-connected audiological disabilities, including both hearing loss and tinnitus, impact his ability to obtain and maintain substantially gainful employment. The report prepared must be typed. 4. The RO must obtain an opinion from a VA examiner to determine whether the Veteran's service-connected disabilities of bilateral hearing loss, tinnitus, and PTSD, preclude him from securing and following substantially gainful employment. The examiner must elicit from the Veteran and record for clinical purposes a full work and educational history. Based on the clinical examination, a review of the evidence of record, and with consideration of the Veteran's statements, the examiner must provide an opinion as to whether the Veteran's service-connected disabilities preclude him from securing and following substantially gainful employment consistent with his education and occupational experience. This opinion must be provided without consideration of his nonservice-connected disabilities, or age. A complete rationale for all opinions must be provided. If the examiner cannot provide the requested opinion without resorting to speculation, it must be so stated, and the examiner must provide the reasons why an opinion would require speculation. The examiner must indicate whether there was any further need for information or testing necessary to make a determination. Additionally, the examiner must indicate whether any opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular examiner. The report must be typed. 5. The RO must notify the Veteran that it is his responsibility to report for the scheduled VA examinations and to cooperate in the development of the claims. The consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655 (2013). In the event that the Veteran does not report for a scheduled examination, documentation must be obtained which shows that notice scheduling the examination was sent to the last known address. It must also be indicated whether any notice that was sent was returned as undeliverable. Copies of all documentation notifying the Veteran of any scheduled VA examination must be placed in the Veteran's claims file. 6. The medical reports must be reviewed by the RO to ensure that they are in complete compliance with the directives of this remand. If deficient in any manner, the RO must implement corrective procedures at once. 7. Once the above actions have been completed, and any other development as may be indicated by any response received as a consequence of the actions taken above, the RO must re-adjudicate the Veteran's claims on appeal, to include whether a compensable evaluation is warranted for bilateral hearing loss and TDIU on an extraschedular basis. If any benefit remains denied, a supplemental statement of the case must be provided to the Veteran and his representative. After they have had an adequate opportunity to respond, the appeal must be returned to the Board for further appellate review. No action is required by the Veteran until he receives further notice; however, he may present additional evidence or argument while the case is in remand status at the RO. Kutscherousky v. West, 12 Vet. App. 369 (1999). _________________________________________________ JOY A. MCDONALD 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).