Citation Nr: 18142333
Decision Date: 10/15/18	Archive Date: 10/15/18

DOCKET NO. 07-24 354A
DATE:	October 15, 2018
REMANDED
Entitlement to an initial compensable rating for bilateral hearing loss from January 30, 2001 and a rating in excess of 10 percent from August 19, 2003 to April 2, 2005 is remanded.
Entitlement to a total disability evaluation based on individual unemployability (TDIU) prior to April 2, 2005 is remanded.
REASONS FOR REMAND
The Veteran served on active duty from October 1958 to August 1960 and October 1961 to August 1962.
This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an October 2002 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO).  In February 2013, the Veteran testified before the undersigned.  
In July 2017, the Board denied the issue of entitlement to a TDIU prior to April 2, 2005 and entitlement to a compensable rating for bilateral hearing loss from January 30, 2001 and a rating in excess of 10 percent from August 19, 2003 to April 2, 2005.  The Veteran appealed that decision to the United States Court of Appeals for Veterans Claims (Court).  In May 2018, the Court issued an order that granted a Joint Motion for Remand (JMR) filed by counsel for both parties that same month, vacating the Board’s July 2017 decision and remanding the matter to the Board for action in compliance with the JMR.
1. Entitlement to an initial compensable rating for bilateral hearing loss from January 30, 2001 and a rating in excess of 10 percent from August 19, 2003 to April 2, 2005 is remanded.
The Veteran should be afforded a retrospective VA medical opinion addressing the severity of the Veteran’s bilateral hearing loss, including functional effects, from August 19, 2003 to April 2, 2005.  See Chotta v. Peake, 22 Vet. App. 80, 85 (2008) (duty to assist may include development of medical evidence through a retrospective medical evaluation where there is a lack of medical evidence for the time period being rated).
2. Entitlement to a TDIU prior to April 2, 2005 is remanded.
A TDIU opinion considering the combined effects of the Veteran’s service-connected disabilities must be obtained on remand.
The matters are REMANDED for the following actions:
1. Obtain a retrospective opinion from a VA audiologist as to the severity of the Veteran’s bilateral hearing loss, from August 19, 2003 to April 2, 2005, in terms of (a) an estimate of audiometric testing results, (b) an estimate of Maryland CNC speech discrimination scores, and (c) a description of the functional effects of the Veteran’s hearing loss, after reviewing and considering all the pertinent lay and medical evidence of record.  
A complete rationale must be given for all opinions expressed.  If the examiner is unable to provide a retrospective opinion, he or she should clearly explain the basis for that conclusion.   
2. Then refer the claims file to a VA examiner for a TDIU medical opinion.  An in-person examination is not required unless the examiner deems one is necessary.  Following a review of the claims file, the examiner must offer an opinion as to whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran is unable to secure or follow a substantially gainful occupation as a result of the combined effects of his service-connected disabilities (bilateral hearing loss, major depressive disorder, left fibular fracture, left Achilles tendon repair with degenerative changes, and hemorrhoids) prior to April 2, 2005.  
A complete rationale must be given for all opinions expressed.  If the examiner is unable to provide a retrospective opinion, he or she should clearly explain the basis for that conclusion.   
3. If a favorable TDIU opinion is rendered, refer the matter of entitlement to an extraschedular TDIU to the Director of Compensation Service.
 
S. BUSH
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	K. Forde, Counsel