Citation Nr: 1805072 Decision Date: 01/25/18 Archive Date: 02/05/18 DOCKET NO. 12-10 821 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to an initial compensable rating for left ear hearing loss. 2. Entitlement to service connection for right ear hearing loss. 3. Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: Adam Neidenberg, Attorney WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD T. Adams, Counsel INTRODUCTION The Veteran had active duty from November 1990 to November 1994. This appeal is before the Board of Veterans' Appeals (Board) on appeal from a January 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified in support of these claims during a videoconference hearing held at the RO before the undersigned Veterans Law Judge in June 2015. In July 2017, the Veteran's new representative requested a second hearing before the Board scheduled for October 2017. However, that same month he withdrew his hearing request in writing. Accordingly, the Veteran's hearing request is deemed withdrawn. 38 C.F.R. § 20.704 (2017). In August 2015, these matters were remanded for further development. 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. Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the Veteran's claims so that he is afforded every possible consideration. Pursuant to the Board's August 2015 remand, the Veteran was afforded a VA hearing loss and tinnitus Disability Benefits Questionnaire in March 2017. However, the VA audiologist indicated that although the Veteran was reinstructed and retested, the examination was inconsistent and considered unreliable. She recommended that the Veteran follow-up for a repeat evaluation. On remand, another VA examination should be scheduled. With regard to the Veteran's TDIU claim, the Board finds that it is inextricably intertwined with the increased rating and service connection claims. See Parker v. Brown, 7 Vet. App. 116 (1994); 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 veteran's claim for the second issue). Because adjudication of these claims will potentially affect the TDIU claim, adjudication of the Veteran's TDIU claim is deferred. The TDIU claim should not be returned to the Board until the increased rating claim and the service connection claims are adjudicated and no longer pending or are certified to the Board for appellate review. Accordingly, the case is REMANDED for the following actions: 1. Schedule the Veteran for a VA examination, by an examiner other than the March 2017 VA examiner, to ascertain and evaluate the current level of severity of his left ear hearing loss disability and nature and etiology of any right ear hearing loss. All indicated studies and tests should be performed. The claims folder should be made available to the examiner for review of pertinent documents. The examination report should reflect that such a review was conducted. The examiner should report the extent of the Veteran's disability in accordance with VA rating criteria and include an opinion regarding the functional effects caused by the Veteran's left and/or right ear hearing loss disability. With regard to the Veteran's claimed right ear hearing loss, the examiner must provide the following opinion(s): Is it at least as likely as not (50 percent or more probability) that any right ear hearing loss, had its onset in or is etiologically-related to the Veteran's active duty service or was manifested within the first post service year. The term "at least as likely as not" does not mean within the realm of medical possibility, but rather the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of that conclusion as it is to find against it. If an opinion cannot be rendered without resorting to speculation, the physician should explain why it would be speculative to respond. If possible, but not required, an assessment of the Veteran's capability at employment would be greatly appreciated by the Board. 3. After completing the above action, and any other development as may be indicated by any response received as a consequence of the actions taken in the paragraphs above, the claims must be readjudicated. If the claims remain denied, a supplemental statement of the case must be provided to the Veteran and his representative, and after the Veteran and his representative have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate 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). These 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 (West 2012). _________________________________________________ KELLI A. KORDICH Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (West 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).