Citation Nr: 1715325 Decision Date: 05/08/17 Archive Date: 05/22/17 DOCKET NO. 10-00 441 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for left ear disability (claimed as left ear damage). 2. Entitlement to an initial rating in excess of 50 percent for posttraumatic stress disorder (PTSD) from February 15, 2008 to March 13, 2016 3. Entitlement to total disability for individual unemployability (TDIU). REPRESENTATION Appellant represented by: Joseph R. Moore, Attorney ATTORNEY FOR THE BOARD N.M. Floore, Associate Counsel INTRODUCTION The Veteran served on active duty from November 5, 1991 to November 4, 1995. This matter comes on appeal before the Board of Veteran's Appeals (Board) from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. A November 2008 decision reopened the Veteran's claim for service connection for left ear damage and denied that claim on the merits; the Veteran perfected an appeal. A March 2011 rating decision denied entitlement to a TDIU. Thereafter, a May 2016 rating decision granted service connection for PTSD. The RO assigned an evaluation of 50 percent effective February 15, 2008, and assigned a 100 percent evaluation from March 13, 2016. The RO then reconsidered the TDIU claim since service connection had been granted for the disability that the Veteran claimed resulted in unemployability and issued the Veteran a supplemental statement of the case. The Veteran also initiated an appeal as to the issue of entitlement to an initial higher rating for PTSD from February 15, 2008, to March 13, 2016, but has not been issued a statement of the case. Moreover, as the United States Court of Appeals for Veterans Claims (Court) has held that a claim for a TDIU is part of a higher rating claim when such claim is raised by the record, the higher rating claim should be resolved first. See Rice v. Shinseki, 22 Vet. App. 447 (2009). Although the Veteran's representative requested that the Board stay adjudication of the matter, the Board finds that the main issue, that of the proper PTSD rating and TDIU, are intertwined and still pending at the RO. Until the RO has finished adjudicating the PTSD issue, the TDIU cannot be properly decided, as it is inextricably intertwined. This remand will not delay that action and in fact will likely get evidence more quickly regarding the ear disability. Thus, the Board is moving ahead with adjudication, as there is no prejudice to the Veteran. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND A remand is required in this case. Although the Board sincerely regrets the additional delay, it is necessary to ensure the Veteran is given every possible consideration. PTSD and TDIU A claim for TDIU was raised by the Veteran through his September 2010 application for increased compensation based on unemployability. In March 2011 the RO adjudicated the issue of TDIU on the merits, at which time the Veteran did not meet the schedular requirement for individual unemployability as he was service-connected for one disability at 50 percent. The Veteran was recently issued a supplemental statement of the case on this issue following the grant of service connection for PTSD, the disability he maintains caused unemployability. As TDIU appears to be claimed based primarily on the Veteran's PTSD, his appeal for TDIU is inextricably intertwined with his claim for entitlement to an initial disability rating for PTSD. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (issues are inextricably intertwined when a decision on one issue would have a "significant impact" on a claim for the second issue). However, although the matter of a TDIU has been included by the RO in a supplemental statement of the case, the Veteran has not been issued a statement of the case as to the issue of entitlement to an initial rating in excess of 50 percent for PTSD from February 15, 2008 to March 13, 2016. As such, a statement of the case must be issued. The failure to issue a statement of the case is a procedural defect requiring a remand. Manlincon v. West 12 Vet. App. 238 (1999). Left Ear Damage Pursuant to VA's duty to assist, VA will provide a medical examination or obtain a medical opinion based upon a review of the evidence of record if VA determines it is necessary to decide the claim. 38 C.F.R. § 3.159(c)(4)(i) (2016). A medical examination or medical opinion may be deemed necessary where the record contains competent medical evidence of a current diagnosed disability, establishes that the Veteran suffered an event, injury or disease in service, and indicates that the claimed disability may be associated with the established event, injury or disease in service. See Id. Once VA undertakes the effort to provide an examination or opinion for a service connection claim, even if not statutorily obligated to do so, it must provide an adequate one or, at a minimum, notify the claimant why one will not or cannot be provided. Barr v. Nicholson, 21 Vet. App. 303, 311-12 (2007). Here, the Veteran underwent a VA examination in January 2013 to determine the etiology of the his left ear condition and to determine whether it is at least as likely as not (50 percent or greater probability) incurred in or caused by his military service. The VA examiner noted that the Veteran had a long standing ear disease and had surgery before going into the military and again some 5 years after discharge. The Veteran underwent mastoid-tympanoplasty surgery on the right ear at age 7 or 8 and on the left ear in 2007 or 2008. As a result of the surgeries, the Veteran has residuals of mastoid cavity left, bilateral conductive hearing loss, and wears hearing aids. The examiner further noted that the Veteran's discharge audiogram was normal and the ears were said to be clear. The examiner opined that choleasteatoma can grow for years and may have started as a child. The examiner noted that sclerosis only indicated numerous infections as a child. The examiner further opined that he "doubts" military service caused any of this. The examiner further noted the following: "if a head injury, normal hearing on discharge and no ear disease of significance found." The examiner suggested the Veteran's disability may have begun during childhood, but did not provide a complete rationale with regard to whether left ear disease actually preexisted service or was aggravated therein. Therefore, in order to give the Veteran every consideration with respect to the present appeal, it is the Board's opinion that further development of the case is necessary. Accordingly, the case is REMANDED for the following action: 1. Obtain a VA medical addendum to determine the nature and etiology of any current left ear disability. The examiner should review the record prior to providing an opinion. The examiner should provide an opinion as to the following questions: (a) Is there clear and unmistakable (obvious or manifest) evidence that the Veteran had a left ear defect, infirmity, or disorder that preexisted his military service; please identify with specificity any evidence that supports this finding. The examiner is advised that the determination regarding inception should not be based solely on the Veteran's reported history, but should also include consideration of the clinical records and the known characteristics of any diagnosed left ear disability; (b) If there is clear and unmistakable evidence that the Veteran had a preexisting left ear defect, infirmity, or disorder at the time of his service entrance, is there evidence that the Veteran's preexisting left ear disorder increased in severity (worsened) in service; (c) If the preexisting left ear defect, infirmity, or disorder increased in severity in service, is there clear and unmistakable (obvious or manifest) evidence that the increase in severity during service was due to the natural progression of the left ear disorder; please identify with specificity any evidence that supports this finding; (d) If the examiner determines that the Veteran did not have a left ear defect, infirmity, or disorder that preexisted service, is it at least as likely as not that the Veteran currently has a left ear disorder that had its onset in, or is otherwise etiologically related, to his military service. The examiner should address the VA medical examination and opinion dated in January 2013. The examiner should provide a complete rationale for all opinions expressed and conclusions reached. 2. Review the medical opinion obtained above to ensure that the remand directives have been accomplished. If all questions posed are not answered or sufficiently answered, the case should be returned to the examiner for completion of the inquiry. 3. Readjudicate the claim of service connection for left ear disability in light of all of the evidence of record. If the benefits sought remain denied, the Veteran should be provided with a supplemental statement of the case to the issues on appeal, and afforded a reasonable period of time within which to respond thereto. 4. The Veteran should be sent a statement of the case as to the issue of entitlement to an initial rating in excess of 50 percent for PTSD from February 15, 2008 to March 13 2016, in accordance with 38 U.S.C.A. § 7105 and 38 C.F.R. §§ 19.29, 19.30. If the Veteran perfects the appeal by submitting a timely and adequate substantive appeal on this issue, then the claim should be returned to the Board. 5. Following the completion of the development for the issue of entitlement to an initial rating in excess of 50 percent for PTSD from February 15, 2008 to March 13 2016, readjudicate the TDIU issue, to include, if necessary, whether referral for TDIU extraschedular consideration is warranted. If the benefits sought remain denied, the Veteran should be provided with a supplemental statement of the case to the issues on appeal, and afforded a reasonable period of time within which to respond thereto. The Veteran 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). _________________________________________________ BRADLEY W. HENNINGS 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) (2016).