Citation Nr: 1612024 Decision Date: 03/24/16 Archive Date: 03/29/16 DOCKET NO. 03-37 012 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUES 1. Entitlement to a rating higher than 40 percent for bilateral hearing loss. 2. Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: Vietnam Veterans of America WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Bridgid D. Houbeck, Counsel INTRODUCTION The Veteran served on active duty from August 1954 to April 1958. This matter has come before the Board of Veterans' Appeals (Board) on appeal from November 2002 and August 2005 rating decisions of the Oakland, California, Department of Veterans Affairs (VA) Regional Office (RO). The November 2002 rating decision denied the Veteran's claims for higher ratings for residuals of right tibia and fibula fracture (right ankle disability), bilateral hearing loss, and tinnitus, and denied TDIU. See VBMS Rating Decision - Narrative 11/16/02. In April 2003, the Veteran filed a notice of disagreement with the right ankle disability and TDIU denials only. See VBMS Notice of Disagreement 4/30/03. The RO issues a statement of the case in November 2003. See VBMS Statement of the Case (SOC) 11/7/03. The Veteran then perfected his appeal of these issues (increased rating for right ankle disability and TDIU) by submitting a December 2003 VA Form 9. See VBMS VA 9 Appeal to Board of Appeals 12/17/03. The August 2005 rating decision granted an increased rating for residual fracture right tibia and fibula, denied the Veteran's claim for an increased rating for bilateral hearing loss, and continued the denial of TDIU. See VBMS Rating Decision - Narrative 8/15/05. In September 2005, the Veteran filed a notice of disagreement with the bilateral hearing loss denial. See VBMS Notice of Disagreement 9/7/05. In January 2007, the Board denied the Veteran's claim for a higher rating for residuals of right tibia/fibula fractures and remanded the issues of a higher rating for bilateral hearing loss for issuance of a statement of the case and entitlement to TDIU as an inextricably intertwined issue. The RO issued a statement of the case on the issue of an increased rating for bilateral hearing loss in February 2007. See VBMS Statement of the Case (SOC) 2/1/07. The Veteran then perfected his appeal by submitting a March 2007 VA Form 9. See VBMS VA 9 Appeal to Board of Appeals 3/8/07. In June 2007, the Board denied the Veteran's claim of entitlement to TDIU. This decision was vacated in a January 2010 Board decision. The Veteran testified at a Board hearing before the undersigned Veterans Law Judge in October 2009. A transcript of the hearing is associated with the claims file. In January 2010, the Board remanded this case for further development. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2015). 38 U.S.C.A. § 7107(a)(2) (West 2014). The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND Unfortunately, another remand is required in this case. The most recent VA audiologic examination was performed in April 2010. See VBMS VA Examination 4/5/10. In his February 2014 VA Form 9, the Veteran, through his representative, argued that his hearing had worsened. See VBMS VA 9 Appeal to the Board of Appeals 2/24/14. Therefore a new VA examination addressing the current severity of this condition is necessary. See Snuffer v. Gober, 10 Vet. App. 400 (1997); VAOPGCPREC 11-95 (1995); see also Proscelle v. Derwinski, 2 Vet. App. 629 (1992) (finding that the Veteran is competent to provide an opinion that his disability has worsened). The issue of TDIU is inextricably intertwined with the issue of an increased rating for bilateral hearing loss. As the sought examination may provide additional evidence on the impact this disability has on the Veteran's ability to work, the issue of TDIU must also be remanded. See Henderson v. West, 12 Vet. App. 11, 20 (1998), Harris v. Derwinski, 1 Vet. App. 180 (1991); Parker v. Brown, 7 Vet. App. 116, 118 (1994). Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. Scheduled the Veteran for a VA examination to determine the current severity of his bilateral hearing loss. The claims filed must be reviewed in conjunction with the examination. All indicated tests and studies should be conducted. In reporting the current severity of the Veteran's hearing loss, the examiner should consider the Veteran's subjective symptoms. If the examiner rejects the Veteran's reports of symptomatology, he or she must provide a reason for doing so. The examiner should also comment on the effect this disability has on the Veteran's occupational functioning. 2. Thereafter, readjudicate the claims in light of the additional evidence obtained. If any of the benefits sought on appeal remain denied, the Veteran and his representative should be provided a supplemental statement of the case. An appropriate period of time should then be allowed for a response, before the record is returned to the Board for further review. The appellant has the right to submit additional evidence and argument on the matter or 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). _________________________________________________ ERIC S. LEBOFF Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), 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) (2015).