Citation Nr: 1606523 Decision Date: 02/22/16 Archive Date: 03/01/16 DOCKET NO. 14-10 967 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Togus, Maine THE ISSUES 1. Entitlement to service connection for left ear hearing loss. 2. Entitlement to service connection for tinnitus. 3. Entitlement to an increased initial rating for service-connected low back strain, rated as 10 percent disabling prior to March 12, 2014 and at 20 percent thereafter. 4. Entitlement to an initial rating in excess of 20 percent for service-connected radiculopathy, right lower extremity. 5. Entitlement to an initial rating in excess of 10 percent for service-connected right hip strain. 6. Entitlement to an initial rating in excess of 10 percent for service-connected right ankle sprain. 7. Entitlement to an initial rating in excess of 10 percent for service-connected left ankle sprain. 8. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Veteran represented by: Penelope E. Gronbeck, Attorney at Law WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Mike A. Sobiecki, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1985 to August 1997. This matter is before the Board of Veterans' Appeals (Board) on appeal from January 2013 and March 2014 rating decision of the Togus, Maine, Regional Office (RO) of the Department of Veterans Affairs (VA). The Veteran appeared at a video conference hearing before the undersigned in October 2015. The record was held open for 60 days to allow for the submission of additional evidence. In December 2015, additional evidence was submitted with a waiver of RO consideration. See 38 C.F.R. § 20.1304(c) (2015). The Veteran has alleged that his service-connected disabilities impact his ability to secure and maintain substantially gainful employment. See, e.g., October 2015 Hearing Transcript. Accordingly, the issue of entitlement to a TDIU is raised and considered part-and-parcel of the increased rating claims on appeal. Rice v. Shinseki, 22 Vet. App. 447 (2009). The appeal is REMANDED to the agency of original jurisdiction. VA will notify the Veteran if further action is required. REMAND The Board finds that further development of this appeal is necessary. Additionally, on remand, any outstanding VA treatment records should be obtained and associated with the claims file. 38 U.S.C.A. § 5103A(c) (West 2015). Missing Treatment Records The Board finds that the record is incomplete. At the October 2015 Board hearing, the Veteran testified that he was scheduled to undergo an magnetic resonance imaging (MRI) of his back and also that he was scheduled to see an ear, nose, and throat (ENT) specialist for his hearing problems. Treatment records relating to these appointments have not been associated with the claims file. Remand is necessary so that they may be obtained. The Veteran also testified that he currently receives short-term disability benefits, and that his continued receipt of these benefits was, to some extent, dependent on the outcome of the scheduled MRI. Apart from the missing MRI results, discussed above, the Board is not clear as to whether the record contains the remainder of the medical records related to these benefits. As such, the Veteran should be requested to identify any treatment related to his short-term disability benefits and, if not already associated with the claims file, these records should be obtained. VA Examinations The Board finds that the Veteran should be scheduled for new examinations for his back, hip, radiculopathy, ankles, and hearing. With regard to the back, hip, radiculopathy, and ankles, the Board notes that at the October 2015 Board hearing, the Veteran testified that he believed the results of the prior VA examination he underwent to be inaccurate; that the actual level of disability he experiences is more severe. Accordingly, new examinations should be scheduled to ascertain the present level of disability. See Snuffer v. Gober, 10 Vet. App. 400 (1997). With regards to the Veteran's hearing loss and tinnitus, the Veteran underwent a VA examination in August 2012 to assess his hearing loss and tinnitus, and that examiner referred the Veteran for an examination by an ENT for evaluation. The Veteran missed this December 2012 appointment and it appears that he missed a more recent appointment in January 2014. As the Veteran did not show good cause for his failure to report, the law allows VA to make a determination on these two claims based on the evidence of record. See 38 C.F.R. § 3.655(2015). However, as these claims are already being remanded to obtain medical records, the Board finds that the Veteran should be afforded an additional opportunity to attend a VA examination. TDIU At the October 2015 Board hearing, the Veteran testified that his service-connected disabilities impact his ability to maintain employment and that he receives short-term disability benefits. Accordingly, the Board finds that the issue of entitlement to a TDIU has been raised and is considered part-and-parcel of the increased rating claims on appeal. Rice, 22 Vet. App. 447. On remand, the Veteran should be sent a notice letter informing him of how to substantiate this claim, asked to complete a VA Form 21-8940, and he should also be afforded a VA examination to determine the impact of his service-connected disabilities, both alone and in the aggregate, on his ability to secure and maintain substantially gainful employment. Accordingly, the appeal is REMANDED for the following actions: 1. Obtain and associate with the claims file any outstanding VA treatment records. 2. Ask the Veteran to identify any non-VA treatment providers he has used, to include during his period of short-term disability. The Veteran should be sent a VA Form 21-4142 so that VA may be authorized to obtain any such records. Ask the Veteran to submit the treatment records related to the ENT specialist appointment and MRI, which were mentioned during the October 2015 Board hearing. 3. Send the Veteran a notice letter informing him of the evidence required to substantiate his claim for TDIU. He should also be sent a VA Form 21-8940, Application for Increased Compensation Based on Unemployability. 4. Thereafter, schedule the Veteran for a VA examination to determine the current severity of his service-connected back, right hip, radiculopathy, and ankles. The entire claims file must be reviewed in conjunction with the examination. Any diagnostic testing necessary for accurate assessment should be conducted. All pertinent symptoms and findings must be reported in detail. The Veteran has alleged that he has difficulty separating the symptoms of his back, hip, and radiculopathy. To the extent possible, the examiner should identify which symptoms are related to which disability. If certain symptoms overlap, it should be so noted. A complete rationale should be provided for all opinions expressed. 5. Schedule the Veteran for a VA audiological examination by an ear, nose, and throat (ENT) specialist. The entire claims file must be reviewed in conjunction with the examination. The ENT specialist is asked to perform any diagnostic studies necessary to identify and diagnose the Veteran's hearing problems. It should be noted that he is claiming left ear hearing loss and tinnitus. For each diagnosed disability, the ENT specialist is asked to answer whether it is at least as likely as not (a 50 percent or greater probability) that the disability had its onset in or is otherwise related to the Veteran's active military service. In answering this question, the lay evidence of record should be considered. This includes the Veteran's statements, his military occupational specialty, his combat time, and pre- and post-military noise exposure. All pertinent evidence of record should be discussed in the rationales. A complete rationale must be provided for each opinion expressed. 6. Schedule the Veteran for a VA examination by an appropriate medical professional to determine the effects of his service-connected disabilities on his ability to obtain and maintain employment consistent with his education and occupational experience. The entire claims file must be reviewed in conjunction with the examination. The examiner should take a detailed history regarding the Veteran's employment, education and vocational attainment in connection with the claim for TDIU. The examiner is requested to provide an opinion as to the effect of the Veteran's service-connected disabilities, either alone or in combination, on his ability to secure or follow substantially gainful employment consistent with his education and occupational experience. The opinion should include an evaluation of the limitations and restrictions imposed by the Veteran's service-connected disabilities on work activities such as interacting with customers/coworkers, using technology, and other routine work activities like sitting, standing, walking, lifting, carrying, pushing, and pulling for up to six-to-eight hours per day. The opinion must be provided without consideration of the Veteran's nonservice-connected disabilities or age. The examination report must include a complete rationale for all opinions expressed. The lay evidence of record must be considered and discussed, including the Veteran's lay statements. 7. Finally, readjudicate the appeal. If any of the benefits sought remain denied, issue a supplemental statement of the case and return the case to the Board. 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). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board 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. _________________________________________________ RYAN T. KESSEL Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252, only a decision of the Board 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).