Citation Nr: 1636559 Decision Date: 09/19/16 Archive Date: 09/27/16 DOCKET NO. 07-36 423 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in North Little Rock, Arkansas THE ISSUES 1. Entitlement to service connection for hearing loss. 2. Entitlement to service connection for tinnitus. 3. Entitlement to service connection for a left hip disability. 4. Entitlement to service connection for a right hip disability. 5. Entitlement to service connection for diplopia as a residual of a facial fracture. 6. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Jarrette A. Marley, Counsel INTRODUCTION The Veteran served on active duty in the United States Air Force from November 1958 to December 1969. These matters come before the Board of Veterans' Appeals (Board) on appeal from March 2007 (TDIU), January 2008 (hearing loss, tinnitus, diplopia, and left hip), and June 2010 (right hip) rating decisions by the North Little Rock, Arkansas Department of Veterans Affairs (VA) Regional Office (RO). In September 2008, the Veteran testified before the undersigned Veterans Law Judge (VLJ). In August 2012, the Veteran testified before another VLJ who is no longer employed by the Board. The Board recognizes that the law requires the VLJ who conducts a hearing to participate in any decision made on the appeal. 38 U.S.C.A. § 7101(c); 38 C.F.R. § 20.707. In this case, the Veteran was notified that the VLJ who conducted his August 2012 hearing was no longer employed by the Board in a July 2016 letter. He was offered the opportunity to have a new hearing. Subsequently, in July 2016, the Veteran responded that he did not desire a new hearing. Thus, the Board will proceed with adjudication of the matters on appeal without additional hearing testimony. The matter of TDIU was previously before the Board in December 2008, July 2009, March 2010, and November 2012. The remaining matters on appeal were previously before the Board in April 2013. 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 2015). The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND As noted above, the matters on appeal were most recently remanded by the Board, in separate decisions, in November 2012 and April 2013. Specifically, the April 2013 Board Remand requested that the RO afford the Veteran VA examinations regarding his claims for service connection for diplopia, right and left hip disabilities, and his hearing loss and tinnitus. Such order remains uncompleted, and the Board errs as a matter of law when it fails to ensure compliance. Stegall v. West, 11 Vet. App. 268 (1998). Finally, the Veteran's claims file should be updated to include relevant VA treatment records since June 2014. 38 U.S.C.A. § 5103A(c); see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim); Sullivan v. McDonald, 815 F.3d 786, 792 (Fed. Cir. 2016) (holding that 38 C.F.R. § 3.159(c)(3) expanded VA's duty to assist to include obtaining VA medical records without consideration of their relevance). Additionally, because the Veteran's TDIU claim is inextricably intertwined with the claims remaining on appeal, appellate consideration of entitlement to a TDIU rating is deferred pending resolution of the remaining claims on appeal. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991); see also 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). 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. The RO should associate with the claims file updated VA treatment records since June 2014. 2. Schedule the Veteran for a VA examination regarding his claim for service connection for diplopia as residual of a facial fracture. The Veteran's claims file should be provided to and reviewed by the examiner. Based on review of the record, and interview of the Veteran, the examiner should address the following: (a) Provide an opinion whether it is at least as likely as not (50 percent or greater probability) that any diplopia suffered by the Veteran at any time since he filed his claim in 2007 had onset during his active service or was caused by his active service, to include as a result of injuries sustained in the January 1969 motor vehicle accident. (b) Provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran sustained a "blow-out" facial fracture in the January 1969 motor vehicle accident. A detailed rationale for any opinion expressed should be provided. If an opinion cannot be rendered without resort to speculation, that should be explained. 3. Schedule the Veteran for a VA examination regarding his claim for service connection for a right and left hip disability. The Veteran's claims file should be provided to and reviewed by the examiner. All indicated studies should be performed. Based on review of the record, and interview of the Veteran, the examiner should address the following: (a) Please identify (by medical diagnosis) the Veteran's right and left hip disabilities that have existed at any time since he filed his claim in 2007. (b) Provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that any identified disability of the left hip had onset during active service or was caused by active service, to include the January 1969 motor vehicle accident, and whether a 1989 or 2001 left hip replacement was necessitated by any event or injury during his active service. (c) Provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that any identified disability of the right hip had onset during active service or was caused by active service, to include the January 1969 motor vehicle accident, and whether a 2008 right hip replacement was necessitated by any event or injury during his active service. (d) Provide an opinion whether it is at least as likely as not (50 percent or greater probability) that any identified disability of the right hip was caused by a left hip disability, to include a left hip replacement. (e) Provide an opinion whether it is at least as likely as not (50 percent or greater probability) that any identified disability of the right hip was aggravated (worsened beyond its natural progression) by a left hip disability, to include left hip replacement. A detailed rationale for any opinion expressed should be provided. This rationale must include a discussion of the January 2008 letter from Dr. Chakales with regard to dislocation of the hips and avascular necrosis. If an opinion cannot be rendered without resort to speculation, that should be explained. 4. Schedule the Veteran for an audiology VA examination regarding his claim for service connection for hearing loss and tinnitus. The Veteran's claims file should be provided to and reviewed by the examiner. All indicated studies should be performed. Based on review of the record, and interview of the Veteran, the examiner should address the following, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran's hearing loss and/or tinnitus was caused by any event, injury or disease during his active service. A detailed rationale for any opinion expressed should be provided. The examiner is instructed that a rationale that depends entirely on whether the hearing loss and/or tinnitus is shown by treatment records created at the time of active service is not adequate with regard to whether an event, injury, or disease caused hearing loss and/or tinnitus. If an opinion cannot be rendered without resort to speculation, that should be explained. 5. Then readjudicate the issues on appeal. If the benefits sought on appeal are not granted in full, issue the Veteran and his representative a Supplemental Statement of the Case and provide them an opportunity to respond. The appellant 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 2015). _________________________________________________ STEVEN D. REISS Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2015), 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).