Citation Nr: 1413141	
Decision Date: 03/27/14    Archive Date: 04/08/14

DOCKET NO.  09-49 532	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Lincoln, Nebraska


THE ISSUES

1.  Entitlement to service connection for Meniere's disease.

2.  Entitlement to an increased (compensable) disability rating for service-connected hearing loss.

3.  Entitlement to a disability rating higher than 10 percent for service-connected tinnitus.  

4.  Entitlement to a total rating based on individual unemployability due to service-connected disability (TDIU).  


REPRESENTATION

Appellant represented by:	Calvin Hansen, Attorney


ATTORNEY FOR THE BOARD

L. B. Cryan, Counsel


INTRODUCTION

The Veteran served on active duty from March 1968 to December 1969.  While his claims were pending; he died in May 2009.  The appellant is prosecuting the appeal as a substitute for the claimant under the provisions of 38 U.S.C.A. § 5121A (West 2002). 

This case is before the Board of Veterans' Appeals (Board) on appeal from an April 2006 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Seattle, Washington; and, a September 2009 rating decision by the VA RO in Lincoln, Nebraska.  In the April 2006 decision, the RO denied claims, of service connection for Meniere's disease; entitlement to a TDIU, and for increased ratings for the Veteran's service-connected hearing loss and tinnitus.  

In May 2011, the case was initially before the Board.  The case was remanded back to the RO in May 2011 for the RO to determine whether the appellant was a substitute claimant, and for any additional development of the record that was deemed warranted.  In a June 2011 deferred rating decision, the RO accepted the appellant as a substitute claimant.  

Upon review of the claims on appeal, the Board determined in November 2011 that an outside medical opinion was necessary to decide the claims of service connection for Meniere's disease and TBI.  The Board obtained two expert medical opinions in 2012 with regard to whether the Veteran's Meniere's disease was, as likely as not, caused by, or the result of, his in-service acoustic trauma, hearing loss, and/or tinnitus.  

In a November 2012 decision, the Board granted service connection for a TBI and remanded the other issues on appeal for additional development of the record.  

Prior to his death, the Veteran had requested a Board hearing via video conference to provide testimony regarding his claims on appeal.  The Veteran died before the hearing was scheduled.  Although the Veteran had requested a Board hearing, the appellant has since indicated that she does not want a Board hearing.  

The issue of entitlement to a TDIU is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC.


FINDINGS OF FACT

1.  The Veteran died in May 2009; the appellant is the Veteran's surviving spouse, who was substituted as the claimant to continue the Veteran's pending claim and appeal to completion.

2.  The Veteran's Meniere's disease was, as likely as not, aggravated beyond the natural progress by the service-connected TBI.

3.  For the entire period covered by this claim, the Veteran's bilateral hearing loss disability is manifested, at worst, by Level II hearing loss in the right ear and Level VII hearing loss in the left ear.  

4.  At the time of the Veteran's death, his service-connected (bilateral) tinnitus was assigned a 10 percent rating, the maximum rating authorized under Diagnostic Code 6260.


CONCLUSIONS OF LAW

1.  Meniere's disease is secondary to a service-connected disability.  38 U.S.C.A. §§ 1110, 5103, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310 (2013).  

2.  The criteria for the assignment of a compensable rating for the service-connected bilateral hearing loss disability have not been met.  38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.85, Tables VI, VIA, VII; 4.86; Diagnostic Code 6100 (2013).

3.  There is no legal basis for the assignment of a schedular evaluation in excess of 10 percent for tinnitus, and the criteria for referral for consideration of an extraschedular rating are not met.  38 U.S.C.A. §1155 (West 2002); 38 C.F.R. §§ 3.321, 4.87, Diagnostic Code 6260 (2013); Smith v. Nicholson, 451 F.3d 1344 (Fed. Cir. 2006).  


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I.  Notice and Assistance

Upon receipt of a complete or substantially complete application, VA must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide.  38 U.S.C.A. § 5103(a).  The notice requirements apply to all five elements of a service connection claim: 1) veteran status; 2) existence of a disability; 3) a connection between the veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability.  Dingess v. Nicholson, 19 Vet. App. 473 (2006).  The notice must be provided to a claimant before the initial unfavorable adjudication by the RO.  Pelegrini v. Principi, 18 Vet. App.112 (2004).  The notice requirements may be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant.  Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006).  

The grant of service connection for Meniere's disease constitutes a complete grant of the benefits sought on appeal with respect to that issue.  As such, any defect with regard to VA's duty to notify and assist the Veteran or the appellant with the development of that claim is harmless error, and no further discussion of VA's duty to notify and assist is necessary.

Regarding the increased rating claims for hearing loss and tinnitus, a pre-rating letter mailed to the Veteran in September 2005.  The letter provided notice of the information and evidence needed to substantiate a claim for increase.  A March 2006 letter also informed the Veteran of how disability ratings and effective dates are assigned.

In addition, VA has fulfilled its duty to assist in obtaining identified and available evidence needed to substantiate the Veteran's claim.  His service treatment records and claims submissions have been obtained and associated with the record.  Neither the Veteran nor the appellant has identified any medical records in support of the claims that are not currently of record.  VA audiometric examinations are of record, and neither the Veteran nor the appellant asserted inadequacy of the examinations.  Moreover, these examinations, and other evidence of record, provide a fully adequate basis for determining the extent of the Veteran's hearing loss and tinnitus in light of the applicable diagnostic criteria.  See Barr v. Nicholson, 21 Vet. App. 303 (2007).

The RO substantially complied with the remand directives set forth in the May 2011 and November 2012 remands by determining that the appellant was a valid substitute claimant, by obtaining any outstanding medical records; and, by obtaining a medical opinion regarding a TDIU.  Examinations and/or opinions regarding the current level and severity of the hearing loss and tinnitus were not requested because the Veteran is deceased.  The RO complied with the remand directives and no further action is necessary in this regard.  See D'Aries v. Peake, 22 Vet. App. 97, 106 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998), where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002).   

In addition to the paper claims file, there is a Virtual VA (VVA) electronic claims file associated with the Veteran's claim.  The documents in the VVA file have been reviewed.

VA has complied with the notice and assistance requirements and the Veteran is not prejudiced by a decision on the claim at this time.  


II.  Service Connection

Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service.  38 U.S.C.A. §§ 1110, 38 C.F.R. § 3.303.  Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service.  38 C.F.R. § 3.303(d).  

Disability which is proximately due to or the result of a service-connected disease or injury shall also be service connected and once established for a secondary condition, the secondary condition shall be considered part of the original condition.  This is secondary service connection.  38 C.F.R. § 3.310(a).  

Additionally, any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the nonservice-connected disease will be service connected.  

As noted, when service connection is established for a secondary condition, the secondary condition shall be considered a part of the original condition.  38 C.F.R. § 3.310(a).  However, VA will not concede that a non-service-connected disease or injury was aggravated by a service-connected disease or injury unless the baseline level of severity of the nonservice-connected disease or injury is established by medical evidence created before the onset of aggravation or by the earliest medical evidence created at any time between the onset of aggravation and the receipt of medical evidence establishing the current level of severity of the nonservice-connected disease or injury.  The rating activity will determine the baseline and current levels of severity under the Schedule for Rating Disabilities and determine the extent of aggravation by deducting the baseline level of severity, as well as any increase in severity due to the natural progress of the disease, from the current level.  See 38 C.F.R. § 3.310(a), (b), as amended effective October 10, 2006. 

The amendment sets a standard by which a claim based on aggravation of a nonservice-connected disability by a service-connected one is judged.  Although VA has indicated that the purpose of the regulation was merely to apply the Court's ruling in Allen, it was made clear in the comments to the regulation that the changes were intended to place a burden on the claimant to establish a pre-aggravation baseline level of disability for the nonservice-connected disability before an award of service connection may be made.  Allen v. Brown , 7 Vet. App. 439.  This had not been VA's practice, which suggests that the recent changes amount to a substantial change.  See Allen, 7 Vet. App. at 447-449.  Given what appear to be substantive changes, and because the Veteran's claim was pending before the regulatory change was made, the Board has consider the version of 38 C.F.R. § 3.310 in effect before the change, which version favors the Veteran.

Service connection for a TBI was established pursuant to the Board's November 2012 decision.  

The Veteran developed symptoms of Meniere's disease in late 2004, when he experienced the acute onset of vertigo, nausea, vomiting, and staggering affect.  Although the Veteran did not develop Meniere's disease until long after service, his Meniere's disease has been shown to be aggravated by his service-connected TBI.  A VA medical examiner opined in May 2013 that although the Veteran's Meniere's disease was not related to service or caused by the service-connected TBI, it was, more likely than not aggravated by the TBI.  The examiner opined that it was more likely than not (higher than 50 percent probability) that the TBI aggravated the Veteran's Meniere's disease given the Veteran's TBI diagnosis; and, because head trauma is listed as a possible contributing or aggravating factor to Meniere's disease.  

This opinion is adequate and highly probative because it is based on a review of the Veteran's claims file, and the examiner provided a rationale based on sound medical principles.

Other medical opinions of record consistently find that the service-connected hearing loss and/or tinnitus did not cause the Meniere's disease; however, most of these opinions were obtained before service connection for a TBI was established and do not specifically address the relationship between the TBI and the Meniere's disease.  

It is noted, however, that an opinion that directly contradicts the May 2013 opinion comes from a VA surgical resident in November 2013 after service connection for TBI was granted.  In that opinion, the surgical resident found that the lengthy time gap between the TBI trauma and the onset of Meniere's disease made it less likely than not that the Veteran's TBI aggravated his Meniere's disease.  

Service connection on a secondary basis is established because there is evidence sufficient to show (1) that a current disability (Meniere's disease) exists and (2) that the current disability was proximately aggravated by a service-connected disability.  Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc).  As the Board cannot find a basis upon which to assign greater weight to the November 2013 opinion, the evidence is in equipoise.

As the overall evidence as to secondary service connection is in equipoise, service connection is warranted for Meniere's disease.  In reaching this decision, the Board has extended the benefit of the doubt to the Veteran and appellant.  38 U.S.C.A. § 5107.

III.  Increased Ratings

The Veteran seeks an increased (compensable) evaluation for hearing loss and a rating in excess of 10 percent for tinnitus.  

Disability evaluations are determined by the application of a schedule of ratings, which is based on the average impairment of earning capacity.  Separate diagnostic codes identify the various disabilities.  Each disability must be viewed in relation to its history, with an emphasis on the limitation of activity imposed by the disabling condition.  Medical reports must be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the veteran working or seeking work.  Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating.  Otherwise, the lower rating is to be assigned.  See 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1, 4.2, 4.7 (2013). 

It is appropriate to consider whether separate ratings should be assigned for separate periods of time based on the facts found, a practice known as "staged" ratings  Hart v. Mansfield, 21 Vet. App. 505 (2007).


Hearing Loss

Evaluations of hearing loss range from noncompensable to 100 percent, based upon organic impairment of hearing acuity as measured by the results of controlled speech discrimination tests, together with the average hearing threshold level as measured by pure tone audiometry tests in the frequencies 1000, 2000, 3000, and 4000 cycles per second.  38 C.F.R. § 4.85(a) and (d) (2013).

To evaluate the degree of disability for service-connected bilateral hearing loss, the rating schedule establishes eleven (11) auditory acuity levels, designated from level I, for essentially normal acuity, through level XI, for profound deafness.  38 C.F.R. § 4.85, Diagnostic Code 6100 (2013).  

The assignment of disability ratings for hearing impairment are derived by the mechanical application of the Ratings Schedule to the numeric designations assigned after audiometry evaluations are rendered.  Lendenmann v. Principi, 3 Vet. App. 345 (1992); see also Martinak v. Nicholson, 21 Vet. App. 447, 455 (2007) (indicating that the criteria for evaluating the degree of impairment resulting from hearing loss under the Rating Schedule, unlike extraschedular consideration under section 3.321(b) of the regulations, rely exclusively on objective test results). 

An examination for hearing impairment must be conducted by a state-licensed audiologist and must include a controlled speech discrimination test (Maryland CNC) and a pure tone audiometry test.  Examinations are to be conducted without the use of hearing aids.  To evaluate the degree of disability from defective hearing, the rating schedule establishes 11 auditory acuity levels from Level I for essentially normal acuity through Level XI for profound deafness.  These are assigned based on a combination of the percent of speech discrimination and the pure tone threshold average, as contained in a series of tables within the regulations.  The pure tone threshold average is the sum of the pure tone thresholds at 1000, 2000, 3000, and 4000 Hertz, divided by four.  38 C.F.R. § 4.85.  This average is used in all cases (including those in Sec. 4.86) to determine the Roman numeral designation for hearing impairment where the axes intersect.  Average pure tone decibel loss for each ear is located on Table VI along a horizontal axis, and percent of discrimination is located along a vertical axis.  The results are then matched between the "better" ear and the "poorer" ear on Table VII to produce a disability rating under Code 6100.

To warrant the assignment of a compensable rating for bilateral hearing loss, the evidence must show that the hearing loss rises to the requisite level of severity as proscribed in 38 C.F.R. § 4.85, Diagnostic Code 6100, Table VII.

Additionally, for exceptional patterns of hearing, under 38 C.F.R. § 4.86(a), when the pure tone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) is 55 decibels or higher, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or Table VIa of 38 C.F.R. § 4.85, whichever results in the higher numeral.  Each ear will be evaluated separately.  38 C.F.R. § 4.86(a).  When the pure tone threshold is 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hertz, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or Table VIA, whichever results in the higher numeral.  That numeral is then elevated to the next higher Roman numeral.  Again, each ear will be evaluated separately.  38 C.F.R. § 4.86(b).

The record contains private audiometry testing from May 2005, June 2005 and June 2006.  The Veteran underwent audiometry testing by VA in March 2006, April 2007 and March 2009.  All six examination reports are located in the Veteran's claims file.  Of these six audiograms, the June 2005 and June 2006 findings are incomplete and, therefore, inadequate for rating purposes because no pure tone threshold, in decibels, was provided at 3000 Hz on the left.  See 38 C.F.R. § 4.85 (2013).    

The VA audiogram results from April 2007 are also not adequate for rating purposes because the speech discrimination scores are not based on the Maryland CNC word list.  Rather, the results come from a W22 test, and not the required Maryland CNC.  

On VA audiological evaluation in March 2006, pure tone thresholds, in decibels, were as follows:



HERTZ



1000
2000
3000
4000
RIGHT
15
10
30
45
LEFT
55
50
50
50

The average of 1000 Hz through 4000 Hz is 25 on the right and 51on the left.  Speech audiometry revealed speech recognition ability of 100 percent in the right ear and 52 percent in the left ear.

These figures, when applied to 38 C.F.R. § 4.85, Table VI, correspond to Level I hearing in the right ear; and, Level VII hearing in the left ear.  Application of these levels to Table VII at 38 C.F.R. § 4.85 results in a 0 percent rating.  

The May 2005 VA audiometric testing shows Level I hearing bilaterally based on the following:  



HERTZ



1000
2000
3000
4000
RIGHT
15
15
35
50
LEFT
25
30
45
50

The average of 1000 Hz through 4000 Hz is 29 on the right and 38 on the left.  Speech audiometry revealed speech recognition ability of 100 percent in the right ear and 100 percent in the left ear.

These figures, when applied to 38 C.F.R. § 4.85, Table VI, correspond to Level I hearing in the right ear; and, Level I hearing in the left ear.  Application of these levels to Table VII at 38 C.F.R. § 4.85 results in a 0 percent rating.  

At the March 2009 VA authorized audiological evaluation, pure tone thresholds, in decibels, were as follows:



HERTZ



1000
2000
3000
4000
RIGHT
5
15
5
20
LEFT
10
15
10
40

The average pure tone threshold in the right ear is 11 dB and the average in the left ear is 19 dB.  Speech audiometry revealed speech recognition ability of 90 percent in the right ear and of 90 percent in the left ear.  

These figures, when applied to 38 C.F.R. § 4.85, Table VI, correspond to Level II hearing in the right ear; and, Level II hearing in the left ear.  Application of these levels to Table VII at 38 C.F.R. § 4.85 results in a 0 percent rating.  


In summary, at no time during the period covered by this claim has the Veteran's hearing loss been compensably disabling.  The results from all of the valid audiometric examinations show a noncompensable hearing loss based on the mechanical application of the Ratings Schedule to the numeric designations assigned after audiometry evaluations are rendered.  

For these reasons, the preponderance of the evidence is against the claim and a compensable rating for the service-connected hearing loss disability is not warranted.  As the preponderance of the evidence weighs against the claim, the benefit of the doubt rule is not for application.  38 U.S.C.A. § 5107(b), 38 C.F.R. § 4.3.  

The Board has also considered whether referral for consideration of an extra-schedular rating is warranted.  The first of the three elements of an extraschedular rating under § 3.321(b)(1) is a finding of either the RO or the Board that the evidence "presents such an exceptional or unusual disability picture that the available schedular evaluations for that service-connected disability are inadequate."  See Thun v. Peake, 22 Vet. App. 111, 115 (2008), aff'd, 572 F.3d 1366 (Fed. Cir. 2009).  In order to determine whether a disability is "exceptional or unusual," there "must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability."  Thun, 22 Vet. App. at 115.  "[I]f the [rating] criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, [and] the assigned schedular evaluation is, therefore adequate, and no referral is required."  Id.

The Veteran asserted during the March 2009 VA examination that the hearing loss interfered with hearing in "regular conversation."  

The Board notes, however, that the decibel loss and speech discrimination ranges designated for each level of hearing impairment in Tables VI and VIA were chosen in relation to clinical findings of the impairment experienced by veterans with certain degrees and types of hearing disability.  In support of this finding, the Board points to the regulatory history of 38 C.F.R. §§ 4.85 and 4.86.  In this regard, the rating criteria for hearing loss were last revised, effective June 10, 1999.  See 64 Fed. Reg. 25206 (May 11, 1999).  In forming these revisions, VA sought the assistance of the Veteran's Health Administration (VHA) in developing criteria that contemplated situations in which a Veteran's hearing loss was of such a type that speech discrimination tests may not reflect the severity of communicative functioning these veterans experienced or that was otherwise an extreme handicap in the presence of any environmental noise, even with the use of hearing aids.  VHA had found through clinical studies of veterans with hearing loss that when certain patterns of impairment are present, a speech discrimination test conducted in a quiet room with amplification of the sounds does not always reflect the extent of impairment experienced in the ordinary environment.  The decibel threshold requirements for application of Table VIA were based on the findings and recommendations of VHA.  The intended effect of the revision was to fairly and accurately assess the hearing disabilities of veterans as reflected in a real life industrial setting.  59 Fed. Reg. 17295 (April 12, 1994).  

Although the Veteran reported that the hearing loss interfered with hearing, the Board finds that such difficulty hearing is contemplated by the schedular criteria because there is a specific disability rating applicable to the Veteran's level of hearing loss.  Accordingly, the rating criteria contemplate the Veteran's disability picture and referral for extraschedular consideration is not warranted.
 
Tinnitus

Pursuant to the rating schedule, a 10 percent evaluation is assigned for recurrent tinnitus.  38 C.F.R. § 4.87, Diagnostic 6260 (2013).  Only a single evaluation may be assigned, whether the sound is perceived in one ear, both ears, or in the head.  Id.  at Note (2); see Smith v. Nicholson, 451 F.3d. 1344 (2006).

On review, the Veteran's tinnitus is currently assigned the maximum schedular rating.  There is no legal basis upon which to award a higher schedular evaluation.  See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994).  Additionally, staged ratings are not warranted.  See Hart, supra.  

The Board has considered the potential application of other various provisions, including 38 C.F.R. § 3.321(b) (1) , for exceptional cases where schedular evaluations are found to be inadequate.  See Schafrath v. Derwinski, 1 Vet. App. 589 (1991).  The evidence before VA does not present such an exceptional disability picture that the available schedular evaluation for the Veteran's tinnitus is inadequate.  The Veteran reported the sound of jet engine noise in his left ear.  This was the basis for the diagnosis of tinnitus; and, the rating criteria are based on tinnitus.  In this case, the criteria reasonably describe the Veteran's disability level with respect to his tinnitus.  Insofar as the Veteran's left ear sound of jet engine noise affects his ability to hear, this aspect of his disability is separately compensated for with the assignment of a disability rating specific to hearing loss.  As all aspects of the Veteran's tinnitus are adequately contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required.  Thun v. Shinseki, 573 F.3d 1366 (Fed. Cir. 2009). 


ORDER

Service connection for Meniere's disease is granted.

An increased (compensable) disability rating for the service-connected hearing loss is denied.

A disability rating higher than 10 percent for service-connected tinnitus is denied.  


REMAND


To establish entitlement to a TDIU due to service-connected disabilities, there must be impairment so severe that it is impossible for the average person to follow a substantially gainful occupation.  See 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16.  In reaching such a determination, the central inquiry is "whether the veteran's service-connected disabilities alone are of sufficient severity to produce unemployability."  Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993).  Consideration may be given to a veteran's level of education, special training, and previous work experience in arriving at a conclusion, but not to his age or to the impairment caused by non-service-connected disabilities.  See 38 C.F.R. §§ 3.341, 4.16, 4.19; Van Hoose v. Brown, 4 Vet. App. 361 (1993).

VA regulations establish objective and subjective standards for an award of TDIU.  When a veteran's schedular rating is less than total (for a single or combination of disabilities), a total rating may nonetheless be assigned where a veteran has a single service-connected disability that is rated as 60 percent disabling or more; or when there are two or more disabilities, at least one disability is rated at 40 percent or more, and any additional disabilities result in a combined rating of 70 percent or more, and the disabled person is unable to secure or follow a substantially gainful occupation.  For the purpose of one 60 percent disability, or one 40 percent disability in combination, disabilities resulting from common etiology will be considered as one disability.  See 38 C.F.R. § 4.16(a).

Prior to the grant of service connection for Meniere's disease, the Veteran's TBI was rated as 40 percent disabling and the tinnitus was rated as 10 percent disabling.  Pursuant to this decision, the Veteran's hearing loss is 10 percent disabling as of March 28, 2006, and the Veteran's service-connected Meniere's disease has not yet been rated.  

Given the evidence of record showing that the Veteran's Meniere's disease significantly affected his ability to work, additional development regarding the TDIU issue must be accomplished.  The determination of a disability rating for the Meniere's disease must be established prior to addressing the issue of entitlement to a TDIU and a medical opinion concerning TDIU should be obtained in light of the grant of service connection.  

Accordingly, the case is REMANDED for the following action:

1.  Obtain a medical opinion, from a VA clinician regarding whether the Veteran's service-connected TBI, Meniere's disease, and the complications and residuals therefrom, along with the service-connected hearing loss and tinnitus rendered the Veteran unable to obtain or maintain substantially gainful employment prior to his death, given his educational background and work history.  The clinician's attention is directed to the June 2006 medical statement from Dr. Taylor and Dr. Taylor's memorandum from February 2007.

If the Veteran's service-connected disabilities did not singly or cumulatively render him unemployable, the examiner should report the type or types of employment in which the Veteran would have been capable of engaging in with his current service-connected disabilities, given his skill set and educational background.  

2.  Thereafter, the RO should review the claim for a TDIU.  Should the benefit sought on appeal remain denied, the appellant and her representative should be provided with a Supplemental Statement of the Case (SSOC). An appropriate period of time should be allowed for response.  Thereafter, the case should be returned to the Board, if in order. 

The appellant has the right to submit additional evidence and argument on the matter 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
Department of Veterans Affairs