Citation Nr: 1801592 Decision Date: 01/10/18 Archive Date: 01/23/18 DOCKET NO. 14-19 943A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to a higher evaluation for bilateral hearing loss, currently assigned a noncompensable evaluation prior to December 1, 2010, a 10 percent evaluation beginning December 1, 2010 and a noncompensable evaluation beginning February 1, 2016. 2. Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU). REPRESENTATION Veteran represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Appellant and his fiancée ATTORNEY FOR THE BOARD Tahirih S. Samadani, Counsel INTRODUCTION The Veteran had active service from January 1970 to January 1974. This matter comes before the Board of Veterans' Appeals (Board) from a March 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. The Veteran's claims file is a "paperless" claims file. All records in the Veteran's case are maintained in Virtual VA and Veterans Benefits Management System (VBMS). In July 2017, the Veteran testified at a hearing before the undersigned using video-conferencing technology. A transcript of the proceeding is of record. The Board notes that in Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court of Appeals for Veterans Claims (Court) held that a claim for a TDIU due to service-connected disability is part and parcel of an increased rating claim for that disability when raised by the record. The Veteran raised the issue of TDIU due to his hearing loss during the July 2017 hearing. Therefore, the issue of entitlement to TDIU is before the Board. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND The Veteran testified that his hearing loss disability has gotten worse since the most recent examination. For this reason, the Board finds that the Veteran should be afforded a new examination to determine the current severity of his hearing loss disability. In addition, the results of the most recent examination conducted in March 2016 were not valid for rating purposes. The Board reminds the Veteran that he has a duty to cooperate during the examination. 38 C.F.R. §§ 3.326, 3.327, 3.655(b) (2017); see also Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). The Veteran should be given one additional opportunity to cooperate during the examination. The claims file should also be updated with the latest treatment records. The most recent records including in the file are dated in February 2016. Accordingly, the case is REMANDED for the following action: 1. Properly notify the Veteran of how to substantiate a claim for entitlement to TDIU. Additionally provide him with VA Form 21-8940 in connection with the inferred claim for entitlement to TDIU, and request that he supply the requisite information. 2. Obtain VA treatment records from the Birmingham VA Medical Center and the Huntsville Clinic. All records/responses received must be associated with the electronic claims file. 3. Schedule the Veteran for a VA examination to determine the severity of his bilateral hearing loss disability. Following examination of the Veteran and review of the claims file, the examiner should identify all currently present manifestations of the Veteran's bilateral hearing loss disability. For TDIU purposes, the following is requested. (a) The examiner should obtain a history from the Veteran on his day-to-day activities to include hobbies, housework, yardwork, community involvement, and driving. (b) The examiner should ask the Veteran to describe in his own words the functional impact of his hearing loss on his ability to engage in substantially gainful work. The Veteran's response should be recorded in the report. (c) Considering the Veteran self-report, coupled with the current examination findings and review of any pertinent clinical records, the examiner should indicate the objective functional effects of the Veteran's service connected bilateral hearing loss on his ability to perform the physical and mental acts required for employment. (i) The examiner should indicate whether the Veteran has had any medical restrictions imposed on his activities due to service-connected bilateral hearing loss. The examiner should refrain from commenting on whether the Veteran is employable. The complete rationale for all opinions expressed should be provided in the examination report, to include reference to pertinent evidence where appropriate. 4. The Veteran is hereby notified that it is his responsibility to report for any examination, and to cooperate in the development of the claim. The consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655. 5. Upon completion of the examinations ordered above, review the examination reports to ensure that they address the questions presented. Any inadequacies should be addressed prior to recertification to the Board. 6. Upon completion of the above development and any additional development deemed appropriate, readjudicate the issues on appeal. All applicable laws and regulations should be considered. If the benefits sought on appeal remain denied, the Veteran and his representative should be provided with a Supplemental Statement of the Case. An appropriate period of time should be allowed for response. 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). (CONTINUED ON NEXT PAGE) The claims 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. §§ 5109B, 7112 (2012). _________________________________________________ KRISTI L. GUNN Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (2012), 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) (2017).