Citation Nr: 1516034	
Decision Date: 04/14/15    Archive Date: 04/21/15

DOCKET NO.  11-26 760	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Houston, Texas


THE ISSUES

1.  Entitlement to a schedular disability rating in excess of 10 percent for left ear hearing loss.

2.  Entitlement to a rating in excess of 10 percent for left ear hearing loss on an extraschedular basis pursuant to 38 C.F.R. § 3.321(b)(1).

3.  Entitlement to a total disability rating based on individual unemployability (TDIU).


REPRESENTATION

Veteran represented by:	Texas Veterans Commission


WITNESS AT HEARING ON APPEAL

Veteran


ATTORNEY FOR THE BOARD

R. Kipper, Associate Counsel


INTRODUCTION

The Veteran served on active duty from June 1979 to August 1979 and from June 1980 to August 1980, with additional service in the Army National Guard.

These matters come before the Board of Veterans' Appeals (Board) on appeal from a December 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas.

In January 2015, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge.  A transcript of the hearing has been prepared and associated with the claims file.  

The issue of entitlement to a TDIU was not certified for appeal.  However, when evidence of unemployability is submitted during the course of an appeal from an assigned disability rating, a claim for a TDIU will be considered part of the claim for benefits for the underlying disability.  Rice v. Shinseki, 22 Vet. App. 447 (2009).  In the present case, the evidence suggests that the Veteran may be unemployable due to symptoms of his service-connected left ear hearing loss.  Accordingly, in light of the Court's holding in Rice, the issue of entitlement to a TDIU has been raised by the record and is within the jurisdiction of the Board.  

The Board also notes that updated VA treatment records have been associated with the Veteran's claims file subsequent to the January 2014 Supplemental Statement of the Case on the issue of an entitlement to an increased schedular rating for left ear hearing loss, but before the claim was certified to the Board.  These records include, in pertinent part, a November 2011 audiology consult and a March 2012 Vocational and Psychosocial Assessment.  When evidence is received by the AOJ prior to transfer of the records to the Board, a SSOC considering such evidence must be furnished to the Veteran and his or her representative, unless the additional evidence is duplicative or is not relevant to the issue on appeal.  38 C.F.R. § 19.37(a) (2014).  In the present case, the Board finds that the additional records are not pertinent to the issue of entitlement to an increased schedular rating for left ear hearing loss.  In this regard, the November 2011 audiology consult, which was conducted one week after the November 2011 VA Examination, merely notes that the Veteran has left ear hearing loss and specifically notes that the Veteran "reported no significant change in hearing."  As the Board is denying the Veteran's claim for an increased schedular rating for left ear hearing loss based on objective testing, despite his profound left ear hearing loss, the Board finds that this evidence is not pertinent to that issue.  As such, a remand for readjudication and issuance of another SSOC with consideration of this evidence is not warranted for the issue of entitlement to an increased schedular rating for left ear hearing loss.  38 C.F.R. § 19.37(a) (2014).  

This appeal was processed using the Veterans Benefits Management System (VBMS) and Virtual VA paperless claims processing systems.  Accordingly, any future consideration of the Veteran's case should take into consideration the existence of this electronic record.

The issue of entitlement to an increased rating for left ear hearing loss on an extraschedular basis and entitlement to a TDIU are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ).


FINDING OF FACT

During the pendency of the appeal, the Veteran's hearing loss manifested, at worst, as Level XI hearing loss in the service-connected left ear and as Level II hearing loss in the nonservice-connected right ear.


CONCLUSION OF LAW

The criteria for a schedular disability rating in excess of 10 percent for left ear hearing loss are not met.  38 U.S.C.A. § 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.159, 3.383, 4.1, 4.7, 4.85, 4.86, Diagnostic Code 6100 (2014).


REASONS AND BASES FOR FINDING AND CONCLUSION

I. Duties to Notify and Assist

Under applicable law, VA has a duty to notify and assist claimants in substantiating a claim for VA benefits.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2014).

Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002).  Proper notice from VA must inform the claimant of any information and evidence not of record:  (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and, (3) that the claimant is expected to provide.  This notice must be provided prior to an initial unfavorable decision on a claim by the AOJ.  Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004).

In addition, the notice requirements apply to all five elements of a service-connection claim, including: (1) veteran status; (2) existence of a disability; (3) a connection between a veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability.  See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).  Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded.  Id. at 486.

For an increased disability rating claim, VA is required to provide the Veteran with generic notice - that is, the type of evidence needed to substantiate the claim.  This includes evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on employment, as well as general notice regarding how disability ratings and effective dates are assigned.  Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009).

The Board finds that VA has satisfied its duty to notify under the VCAA.  In this regard, an October 2009 letter, sent prior to the unfavorable decision issued in December 2009, provided the Veteran the notice required under the VCAA, including of the evidence and information necessary to substantiate his increased rating claim, his and VA's respective responsibilities in obtaining such evidence and information, and the evidence and information necessary to establish a disability rating and an effective date in accordance with Dingess/Hartman, supra.; Vazquez-Flores, supra.  Accordingly, VA has no outstanding duty to inform the Veteran that any additional information or evidence is needed.

VA also has a duty to assist the Veteran in the development of the claim.  This duty includes assisting the Veteran in the procurement of service treatment records (STRs) and pertinent treatment records and providing an examination when necessary.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159.

Here, the record reflects that VA made reasonable efforts to obtain relevant records adequately identified by the Veteran.  Specifically, the information and evidence that have been associated with the claims file include the Veteran's service treatment records, VA treatment records, and VA examination reports.  Neither the Veteran, nor his representative, has identified any outstanding evidence, to include any other medical records, which could be obtained to substantiate his appeal.  

The Court has also held that VA's statutory duty to assist the Veteran includes the duty to conduct a thorough and contemporaneous examination so that the evaluation of the claimed disability will be a fully informed one.  See Green v. Derwinski, 1 Vet. App. 121, 124 (1991).  Where the evidence of record does not reflect the current state of the Veteran's disability, a VA examination must be conducted.  Schafrath v. Derwinski, 1 Vet. App. 589 (1991); 38 C.F.R. § 3.327(a) (2014).

In this case, the Veteran was afforded VA examinations to evaluate his bilateral hearing loss in October 2009 and November 2011.  The Board finds that the VA examinations are adequate for evaluation purposes because the examiners reviewed the claims file or were otherwise informed of the relevant facts of the Veteran's medical history, considered the lay statements of the Veteran, thoroughly examined the Veteran, and addressed the relevant rating criteria, including the functional effects caused by the Veteran's hearing loss.  See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007); Stefl v. Nicholson, 21 Vet. App. 120, 124-25 (2007); Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 303-04 (2008); see also Martinak v. Nicholson, 21 Vet. App. 447, 455 (2007) (providing that a VA medical examiner must, in the context of an audiological examination, fully describe the functional effects caused by a hearing disability in his or her final report).

There is no objective evidence indicating that there has been a material change in the severity of the Veteran's service-connected disorder since he was last examined.  Only if the record is inadequate or if there is suggestion the current rating may be incorrect is there then a need for a more contemporaneous examination.  38 C.F.R. § 3.327(a).  The mere passage of time, alone, since an otherwise adequate examination, does not obligate VA to have the Veteran reexamined simply as a matter of course.  In this case, neither the Veteran nor his representative has alleged that the Veteran's hearing loss has worsened in severity since the last VA examination.  Rather, they argue that the evidence reveals that the hearing loss disability been more severe than the currently assigned rating for the duration of the appeal period.  Palczewski v. Nicholson, 21 Vet. App. 174 (2007) (the passage of time alone, without an allegation of worsening, does not warrant a new examination).  As a result, although the Board notes the passage of time since the Veteran's last examination, the Board finds that additional development by way of another examination is not necessary in this case.

As previously noted, the Veteran was provided an opportunity to set forth his contentions during a hearing before the undersigned in January 2015.  In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that 38 C.F.R. § 3.103(c)(2) requires that a "hearing officer" who chairs a hearing to fulfill two duties: (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked.  Here, the undersigned specifically noted the issue on appeal, clarified the Veteran's assertions when necessary, and clarified the evidence needed to substantiate the claim.  Finally, neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2), nor have they identified any prejudice in the conduct of the Board hearing.  By contrast, the hearing focused on the elements necessary to substantiate the claim, and the Veteran, through his testimony, demonstrated that he had actual knowledge of the elements necessary to substantiate his claim.

The duty to assist has therefore been satisfied and there is no reasonable possibility that any further assistance to the Veteran by VA would be capable of substantiating his claim.  See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994).  

In light of the foregoing, the Board finds that there is no further action to be undertaken to comply with the provisions of 38 U.S.C.A. § 5103(a), § 5103A, or 38 C.F.R. § 3.159, and that all necessary development has been accomplished.  Therefore, appellate review may proceed without prejudice to the appellant.  See Bernard v. Brown, 4 Vet. App. 384 (1993).

II. Analysis

The Veteran contends that his left ear hearing loss disability is more severe than reflected in his current disability rating.  

Disability ratings are determined by the application of the VA's Schedule for Rating Disabilities.  Separate diagnostic codes identify the various disabilities.  38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. § Part 4 (2014).  Ratings for service-connected disabilities are determined by comparing the Veteran's symptoms with criteria listed in VA's Schedule for Rating Disabilities, which is based, as far as practically can be determined, on average impairment in earning capacity.  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.  38 C.F.R. § 4.7 (2014). 

In evaluating the extent of hearing loss, disability ratings are derived by a mechanical application of the rating schedule to the numeric designations assigned after audiometric evaluations are performed.  Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992).  Hearing loss ratings range from noncompensable to 100 percent based on organic impairment of hearing acuity, as measured by controlled speech discrimination tests in conjunction with average hearing thresholds determined by puretone audiometric testing at frequencies of 1000, 2000, 3000 and 4000 cycles per second.  "Puretone threshold average" is the sum of the puretone thresholds at 1000, 2000, 3000 and 4000 Hertz divided by four.  This average is used in all cases (including those in §4.86) to determine the Roman numeral designation for hearing impairment from Table VI or VIa.  38 C.F.R. § 4.85, Diagnostic Code 6100.

The rating schedule establishes eleven auditory acuity levels, designated from Level I for essentially normal hearing acuity, through Level XI for profound deafness.  38 C.F.R. § 4.85.  The horizontal rows in Table VI (in 38 C.F.R. § 4.85) represent nine categories of the percentage of discrimination based on the controlled speech discrimination test.  The vertical columns in Table VI represent nine categories of decibel loss based on the puretone audiometry test.  The Roman numeral designation is located at the point where the percentage of speech discrimination and puretone threshold average intersect.  See 38 C.F.R. §§ 4.85, 4.86.

Where, as here, impaired hearing is service-connected in only one ear, in order to determine the percentage evaluation from Table VII, the nonservice-connected ear will generally be assigned a Roman numeral designation of I for hearing impairment.  38 C.F.R. § 4.85(f) (2014).  However, under the VA provisions governing paired organs, where there is service-connected hearing impairment in one ear compensable to a degree of 10 percent or more and hearing impairment in the other ear as the result of a nonservice-connected disability, which is not the result of the Veteran's own willful misconduct and which meets the criteria for a disability under 38 C.F.R. § 3.385, the rate of compensation shall be paid as if the bilateral hearing loss were the result of the service-connected disability.  38 U.S.C.A. § 1160(a)(3); 38 C.F.R. § 3.383(a)(3) (2012); VAOPGCPREC 32-97, 62 Fed. Reg. 63605 (1997).  For the purpose of applying the laws administered by VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent.  38 C.F.R. § 3.385 (2014).

The regulations also provide that in cases of exceptional hearing loss, i.e. when the puretone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz ) is 55 decibels or more, the Roman numeral designation will be determined for hearing impairment, separately, from either Table VI or Table VIa, whichever results in the higher numeral.  38 C.F.R. § 4.86.  A Roman numeral designation will also be determined from either Table VI or Table VIa, whichever results in the higher numeral, when the puretone threshold is 30 decibels or less at 1000 Hertz, and 70 decibels or more at 2000 Hertz.  That numeral will then be elevated to the next higher Roman numeral.

The Veteran's entire history is to be considered when making disability evaluations.  See generally 38 C.F.R. 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995).  Where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern.  See Francisco v. Brown, 7 Vet. App. 55, 58 (1994).  Here, the relevant evidentiary window begins one year before the Veteran filed his claim for an increased rating, and continues to the present time.  The Board will also consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the course of the claim on appeal.  Hart v. Mansfield, 21 Vet. App. 505 (2007). 

After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran.  38 C.F.R. § 4.3 (2014).

Turning to the evidence of record, the Veteran reported that he has trouble understanding speech and directions, which impacts his ability to keep and find employment.  See September 2011 VA Form 9; January 2015 Hearing Testimony.  

The Veteran underwent an audiology consult in July 2009.  The Veteran reported constant tinnitus in the left ear, and he denied any ear pain, pressure, drainage, infections, or surgery.  On examination, puretone thresholds, in decibels, were as follows:

HERTZ

1000
2000
3000
4000
RIGHT
5
5
15
25
LEFT
95
105
105
105

The puretone threshold average was 13 decibels in the right ear and 103 decibels in the left ear.  Exact Maryland CNC speech discrimination were not provided, but the examiner indicated that the Veteran had "normal hearing in the right ear with excellent speech discrimination ability" and "severe to profound sensori-neural hearing loss [in the left ear] with no speech intelligibility."  It is not entirely clear from the clinical report whether the Maryland CNC word list was used to obtain the speech discrimination scores.  However, even assuming, for purposes of argument, that the Maryland CNC was used and that speech discrimination in the left ear was zero percent, these results correspond to a level XI acuity in the left ear.  38 C.F.R. §§ 4.85, 4.86, Table VIa.  As the right ear findings do not meet the criteria for a hearing loss disability under 38 C.F.R. § 3.385, the nonservice-connected right ear is assigned a level I acuity.  See 38 C.F.R. § 3.383(a)(3); 4.85(f).  Applying these results to Table VII, a 10 percent disability rating is warranted.

The Veteran underwent a VA examination in October 2009.  The resulting examination report shows puretone thresholds, in decibels, as follows:

HERTZ

1000
2000
3000
4000
RIGHT
10
10
20
35
LEFT
90
95
95
95

The puretone threshold average was 19 decibels in the right ear and 94 decibels in the left ear.  The Maryland CNC speech discrimination test revealed speech recognition ability of 100 percent in the right ear and zero percent in the left ear.  These results correspond to a level XI acuity in the left ear.  38 C.F.R. §§ 4.85, 4.86, Table VIa.  As the right ear findings do not meet the criteria for a hearing loss disability under 38 C.F.R. § 3.385, the nonservice-connected right ear is assigned a level I acuity.  See 38 C.F.R. § 3.383(a)(3); 4.85(f).  Applying these results to Table VII, a 10 percent disability rating is warranted.

The Veteran underwent a VA examination in November 2011.  The resulting examination report shows puretone thresholds, in decibels, as follows:

HERTZ

1000
2000
3000
4000
RIGHT
20
10
15
20
LEFT
90
105
105
105

The puretone threshold average was 16 decibels in the right ear and 101 decibels in the left ear.  Initial Maryland CNC testing revealed speech recognition scores of 90 percent for the right ear and 70 percent for the left ear.  The examiner conducted additional Maryland CNC testing used a "modified performance intensity function," which yielded a best performance of 100 percent in the right ear and 80 percent in the left ear.  Regardless of which Maryland CNC score is used, these results correspond to a level X acuity in the left ear because table VIa, under which speech discrimination scores do not apply, results in the higher numeral (i.e., level X acuity versus level V or VII acuity) pursuant to 38 C.F.R. § 4.86.  38 C.F.R. §§ 4.85, 4.86, Table VIa.  Using the "modified performance intensity function" result of 100 percent speech discrimination score for the right ear; the right ear findings do not meet the criteria for a hearing loss disability under 38 C.F.R. § 3.385.  As such, the nonservice-connected right ear would be assigned a level I acuity.  See 38 C.F.R. § 3.383(a)(3); 4.85(f).  Applying these results to Table VII, a 10 percent disability rating is warranted.

Alternatively, using the Maryland CNC score of 90 percent for the right ear results in an impaired hearing disability for VA purposes under 38 C.F.R. § 3.385.  As such, the Veteran's right ear hearing loss is treated as if it were service-connected for rating purposes.  38 C.F.R. § 3.383(a)(3).  Applying the right ear results of a 16 decibel puretone average and a 90 percent speech discrimination to table VI yields level II acuity in the non-service connected right ear.  The resulting level X acuity in the left ear and level II acuity in the right ear yields a 10 percent disability rating under Table VII.  Thus, even giving the Veteran the benefit of the doubt in applying the more favorable 90 percent speech discrimination score for the right ear, a rating in excess of 10 percent would not be warranted for the Veteran's hearing loss disability.

Based on the evidence above, the Board finds that the audiometric testing fails to reflect that the Veteran's current left ear hearing loss disability meets the criteria to warrant a schedular rating in excess of 10 percent at any time during the appeal period.  

The Board acknowledges the Veteran's assertions regarding the severity of his hearing loss and how it has affected his daily activities.  The Board acknowledges that the Veteran is competent to report the symptomatology associated with his hearing loss.  See Layno v. Brown, 6 Vet. App. 465 (1994).  Furthermore, the Board finds the Veteran's statements to be credible.  See Barr v. Nicholson, 21 Vet. App. 303, 307-08 (2007); Washington v. Nicholson, 19 Vet. App. 362, 368-69 (2005).  The Veteran's assertions that he has trouble hearing are corroborated by the results of his audiogram testing, which show profound deafness and significantly limited speech intelligibility in his left ear.  However, as noted above, disability ratings for hearing impairment are to be derived by the mechanical application of the Rating Schedule to the numeric designations assigned based on objective audiometric test results.  Thus, without medical evidence of a hearing loss disability which merits a higher evaluation, the Veteran's condition is properly rated as 10 percent disabling.  

Accordingly, based on the Veteran's audiological examinations, the Board is compelled to conclude that the preponderance of the evidence is against entitlement to a schedular rating in excess of 10 percent for left ear hearing loss.  In addition, the assignment of staged ratings has been considered and is not for application.  See Hart v. Mansfield, 21 Vet. App. 505 (2007).


ORDER

Entitlement to a schedular rating in excess of 10 percent for left ear hearing loss is denied.


REMAND

After a thorough review of the Veteran's claims file, the Board has determined that additional evidentiary development is necessary prior to the adjudication of the remaining issues on appeal.  

The Veteran contends that the schedular rating criteria are inadequate to rate his left ear hearing loss disability and that, in particular, his hearing loss has had a pronounced effect on his ability to function in the workplace and elsewhere.  See January 2015 Hearing Transcript.

The VA Rating Schedule will apply unless there are exceptional or unusual factors which render application of the schedule impractical.  See Fisher v. Principi, 4 Vet. App. 57, 60 (1993).  To accord justice in an exceptional case where the schedular standards are found to be inadequate, VA is authorized to refer the case to the Under Secretary for Benefits or the Director, Compensation and Pension Service for assignment of an extraschedular evaluation commensurate with the average earning capacity impairment.  38 C.F.R. § 3.321(b)(1).  The criterion for such an award is a finding that the case presents an exceptional or unusual disability picture, with related factors as marked interference with employment or frequent periods of hospitalization, as to render impractical application of regular schedular standards.  

The Board is precluded by regulation from assigning an extraschedular rating under 38 C.F.R. § 3.321(b)(1) in the first instance; however, the Board is not precluded from raising this question, and in fact is obligated to liberally read all documents and oral testimony of record and identify all potential theories of entitlement to a benefit under the law and regulations.  Floyd v. Brown, 9 Vet. App. 88 (1996).  The Board must address referral under 38 C.F.R. §3.321(b)(1) only where circumstances are presented which the Director of VA's Compensation and Pension Service might consider exceptional or unusual.  Shipwash v. Brown, 8 Vet. App. 218, 227 (1995).

In the present case, the Board notes that the Veteran's left ear puretone threshold measures are of such severity as to trigger consideration of the provisions for exceptional patterns of hearing loss, found at 38 C.F.R. § 4.86 (2014).  Additionally, several examiners have found that the Veteran has essentially no speech intelligibility in his left ear.  Moreover, the Board notes that the Veteran's left ear does not appear to be a candidate for amplification, such that even with the use of hearing aids, the Veteran would be profoundly deaf in his left ear.  See, e.g. October 2009 VA Examination Report.  Consequently, the Board concludes that the schedular criteria may not adequately describe the severity and symptoms of the Veteran's hearing loss disability.

Additionally, the Board finds that such limitations have resulted in a marked interference with employment.  In this regard the Veteran has made statements indicating that his ability to work as truck driver is severely affected by his hearing loss, especially in understanding and following directions.  During the January 2015 hearing, the Veteran testified that he has lost several jobs because of his hearing loss disability and that he may be in danger of losing his Class A truck driving license.  Moreover, the November 2011 VA examiner indicated that the Veteran's hearing loss has an effect on his ability to work.  The Board also notes that a March 2012 VA Vocational and Psychosocial Assessment indicates that the Veteran's work impairment includes impaired hearing and that the Veteran "gets close physically to people to hear them, but this behavior makes people feel uncomfortable and has caused negative working relationships."

The Board finds that this evidence of occupational impairment and debilitating hearing loss symptoms are factors that are not contemplated by the rating criteria.  The Board finds that these factors are exceptional, particularly with regard to marked interference with employment, and may render application of the regular schedular criteria impractical in this case.  Thun v. Peake, 22 Vet. App. 111 (2008), aff'd, Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009).  Thus, the Board is remanding this issue to the RO for submission to the VA Chief Benefits Director or the Director of the VA Compensation and Pension Service, for consideration of an assignment of an extraschedular evaluation.  

As noted in the Introduction, when evidence of unemployability is submitted during the course of an appeal from an assigned disability rating, a claim for a TDIU will be considered part and parcel of the claim for benefits for the underlying disability.  Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009).  As reflected above, the evidence reasonably raises the issue of entitlement to a TDIU as part-and-parcel of the underlying rating claim.  Given the remand of the issue of entitlement to a higher rating for left ear hearing loss on an extraschedular basis, the Board finds that the TDIU issue must also be remanded because the claims are inextricably intertwined and must be considered together.  See Tyrues v. Shinseki, 23 Vet. App. 166, 177 (2009) (en banc) (explaining that claims are inextricably intertwined where the adjudication of one claim could have a significant impact on the adjudication of another claim.) aff'd, 631 F.3d 1380 (Fed. Cir. 2011), vacated on other grounds, 132 S. Ct. 75 (2011).    

Moreover, additional development must be undertaken before it can be determined whether the Veteran's service-connected hearing loss is of sufficient severity to render him incapable of performing the mental and physical acts required to secure or follow a substantially gainful occupation, considering his education, experience, and skills.  The Board thus finds that the issue of entitlement to a TDIU should be considered by the RO/AMC in the first instance.  The Board notes that the Veteran has not been provided with notice of the requirements to substantiate a TDIU claim as required by the VCAA.  38 U.S.C.A. § 5103(a) (West 2014); 38 C.F.R. § 3.159(b) (2014).  The Board also notes that the Veteran has not been asked to complete a VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability.  Therefore, on remand, the Veteran should be provided with appropriate VCAA notice and be requested to complete a VA Form 21-8940.  

Accordingly, the case is REMANDED for the following action:

1. Provide the Veteran with proper VCAA notice that informs him of the evidence and information necessary to establish entitlement to a TDIU.  He should also be requested to complete and return VA Form 21-8940 (Veteran's Application for Increased Compensation Based on Unemployability) and VA Form 21-4192 (Request for Employment Information in Connection with Claim for Disability Benefits).  Each executed form should be returned to VA.  

Advise the Veteran and his representative (if any) that it is ultimately the Veteran's responsibility to submit his employment records, particularly those relating to the facts and circumstances of his separation, termination, or retirement from employment; and that he should submit evidence such as pay stubs, W2 Forms, tax returns, etc., documenting marginal employment, if any, relating to post or prospective employment that has resulted in earned income that does (or did) not exceed the poverty threshold for one person.

2. Obtain and associate with the Veteran's claims file all outstanding VA treatment records dated from January 2014 to the present.

3. Upon completion of the foregoing, refer the case to the Director, Compensation and Pension Service, for a determination as to whether the Veteran is entitled to the assignment of an extraschedular rating for left ear hearing loss in accordance with the provisions of § 38 C.F.R. § 3.321(b).

4. Following the completion of the foregoing, and any other development deemed necessary, readjudicate the issues remaining on appeal, to include consideration of whether referral for consideration of a TDIU on an extraschedular basis is warranted, based on the entirety of the evidence received since the last supplemental statement of the case.  If any of the benefits sought on appeal remain denied, the Veteran and his representative should be provided with a supplemental statement of the case and afforded an opportunity to respond before the file is returned to the Board for further appellate consideration.

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 2014).



______________________________________________
DEBORAH W. SINGLETON
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs