Citation Nr: 18144169 Decision Date: 10/25/18 Archive Date: 10/23/18 DOCKET NO. 16-19 103A DATE: October 25, 2018 ORDER Entitlement to an increased rating in excess of 10 percent for tinnitus is denied. Entitlement to an earlier effective date prior to January 6, 2014 for grant of an increased rating of 80 percent for bilateral hearing loss is denied. REMANDED Entitlement to an acquired psychiatric disorder, to include major depressive disorder, to include as secondary to service connected disabilities, is remanded. Entitlement to an increased rating in excess of 20 percent for right ankle disability is remanded. Entitlement to an increased rating in excess of 80 percent for bilateral hearing loss is remanded. Entitlement to a total disability evaluation for individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. The Veteran experiences tinnitus in each ear, for which the maximum schedular rating of 10 percent is assigned. 2. January 6, 2014 is the earliest date that the Veteran’s bilateral hearing loss increase in disability became factually ascertainable. CONCLUSIONS OF LAW 1. There is no legal basis for the assignment of a schedular evaluation in excess of 10 percent for tinnitus. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.87, Diagnostic Code 6260 (2017). 2. The requirements for an effective date earlier than January 6, 2014 for the grant of an increased rating of 80 percent for bilateral hearing loss have not been met. 38 U.S.C. § 5110 (2012); 38 C.F.R. § 3.400 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 1977 to May 1985. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a March 2015 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO) in New York, New York. The Veteran, as a layperson, is not competent to distinguish between psychiatric diagnoses, and so a claim of service connection for one is considered a claim for all. Clemons v. Shinseki, 23 Vet. App. 1 (2009). As such, the Veteran’s claim for service connection for depression has been expanded to include his other possible acquired psychiatric disorders, and the claim has been recharacterized as such on the title page. By way of background, in an April 2016 rating decision, the evaluation for bilateral hearing loss was increased to 80 percent disabling, effective January 6, 2014. The grant of an increased rating during the course of an appeal does not affect the pendency of that appeal. AB v. Brown, 6 Vet. App. 35 (1993). As the Veteran is presumed to be seeking the maximum allowable benefit and the maximum benefit has not yet been awarded, the claim is still in controversy and on appeal. Id. When a Veteran files a claim for an increased rating, he is presumed to be seeking the maximum benefit under any applicable theory, including TDIU. See generally Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001); Rice v. Shinseki, 22 Vet. App. 447 (2009). In light of this principle, entitlement to special monthly compensation (SMC) has been found to be an inferable issue anytime a veteran is requesting increased benefits. Akles v. Derwinski, 1 Vet. App. 118 (1991). Here, the Board notes that the Veteran has not worked since approximately 2007, that he receives Social Security Disability for a variety of disorders, to include psychiatric disorders, and that he is already in receipt of an 80 percent overall disability compensation. As such, the Board finds that a claim for TDIU is inferred by the record. The Veteran submitted additional evidence in support of his claim after the most recent statement of the case, along with a waiver of review of such evidence by the agency of original jurisdiction. As such, the Board may properly consider such evidence at this time. See 38 C.F.R. §§ 20.800, 20.1304(c). The Board notes from the Veteran’s claims history that he was denied entitlement to service connection for PTSD in an RO decision dated August 21, 2007. He appealed to the Board but was denied in a Board decision dated April 14, 2010. The Veteran did not appeal to the United States Court of Appeals for Veterans Claims (Court) or file a claim of clear and unmistakable error (CUE) by the Board. Thus, that decision became final. “[W]hen a claim is disallowed by the Board, the claim may not thereafter be reopened and allowed and a claim based upon the same factual basis may not be considered.” 38 U.S.C. § 7104(b). The Board is prohibited from re-adjudicating previously and finally denied claims on the merits unless new and material evidence is received. 38 U.S.C. § 7104(b); see also Spencer v. Brown, 4 Vet. App. 283, 289 (1993) (stating that this statutory prohibition is “closely analogous” to the traditional legal doctrine of res judicata). The Board must therefore analyze to determine whether the Veteran’s 2015 claim for depression is the same or similar as the previously denied 2007 PTSD claim. New claims that are based on distinctly and differently diagnosed diseases or injuries than a previously denied claim must be considered independently, despite similar symptoms. Therefore, new and material evidence is not required in such cases. See Boggs v. Peake, 520 F.3d 1330 (Fed. Cir. 2008) (finding sensorineural hearing loss was distinct from conductive hearing loss). In Velez v. Shinseki, 23 Vet. App. 199 (2009), the Court of Appeals for Veterans Claims looked to three factors to distinguish a new claim from a petition to reopen: 1) what symptoms were previously used in describing the prior claim, 2) what the medical evidence showed at the time of the prior denials, and 3) how broadly the RO adjudicated the scope of the prior claim. Here, the initial claim for PTSD was diagnosed and treated by VA, with the earliest notation of a diagnosis of PTSD occurring in December 2004. Symptoms noted at the time in an April 2007 VA treatment note by a VA psychologist note the presence of PTSD with sleep disturbance and nightmares, hypervigilance, depression, anxiety, and occasionally paranoia. The denial by the RO in August 2007 and the denial by the Board in April 2010 focused exclusively whether the Veteran’s claimed stressors could be corroborated from his records or from statements. The RO and the Board only adjudicated the PTSD claim using the laws and regulations in effect at the time, which required corroboration of the Veteran’s noted stressors; no other evaluation of any psychiatric symptoms was noted in either the RO decision of August 2007 and subsequent statements of the case, or the Board’s rationale for its April 2010 denial. The Board notes the narrow reason for the denial of the Veteran’s PTSD claims by both the RO and an earlier Board decision that does not touch or analyze any of the observed and associated psychiatric symptoms of the Veteran, and thus finds that the new claim of depression is distinct and separate from the Veteran’s previous denial of his PTSD claim. As such, the Board can proceed with a de novo approach to the Veteran’s depression claim, which is, as previously noted, expanded under Clemons to include all acquired psychiatric disorders that might be diagnosed. Boggs v. Peake, 520 F.3d 1330, 1334–37 (Fed. Cir. 2008); Clemons v. Shinseki, 23 Vet. App. 1, 5–8 (2009); Velez v. Shinseki, 23 Vet. App. 199, 203–05 (2009). Veterans Claims Assistance Act of 2000 (VCAA) The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C. §§ 5102, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017). The Veteran in this case has not referred to any deficiencies in either the duties to notify or assist; therefore, the Board may proceed to the merits of the claim. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015, cert. denied, U.S.C. Oct.3, 2016) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board….to search the record and address procedural arguments when the [appellant] fails to raise them before the Board”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to an appellant’s failure to raise a duty to assist argument before the Board). The Board has reviewed all of the evidence in the Veteran’s claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board’s analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-130 (2000). 1. Entitlement to an increased rating in excess of 10 percent for tinnitus The Veteran claims entitlement to a disability rating in excess of 10 percent for his tinnitus, originally claimed in December 2009. 38 C.F.R. § 4.87, Diagnostic Code 6260 (2017), provides for a 10 percent disability rating for recurrent tinnitus. That rating is the maximum assignable for tinnitus under Diagnostic Code 6260, and it applies whether the sound is perceived in one ear, both ears, or in the head. See Note (2) following 38 C.F.R. § 4.87, Diagnostic Code 6260 (2017). The facts are not in dispute. Resolution of the Veteran’s appeal is dependent on interpretation of the regulations pertaining to the assignment of disability ratings for tinnitus. In Smith v. Nicholson, 19 Vet. App. 63, 78 (2005) the U.S. Court of Appeals for Veterans Claims (Court) held that the pre-1999 and pre-June 13, 2003 versions of Diagnostic Code 6260 required the assignment of dual ratings for bilateral tinnitus. VA appealed this decision to the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) and stayed the adjudication of tinnitus rating cases affected by the Smith decision. The Federal Circuit concluded that the Court erred in not deferring to the VA’s interpretation of its own regulations, 38 C.F.R. § 4.25(b) and Diagnostic Code 6260, which limits a Veteran to a single schedular disability rating for tinnitus, regardless whether the tinnitus is unilateral or bilateral. Smith v. Nicholson, 451 F.3d 1344 (Fed. Cir. 2006). Subsequently, the stay of adjudication of tinnitus rating cases was lifted. The Veteran’s service-connected tinnitus has been assigned the maximum schedular rating available for tinnitus. 38 C.F.R. §4.87, DC 6260 (2017). Regardless of whether the Veteran’s tinnitus is perceived as unilateral or bilateral-in one or both ears-a single 10 percent rating is the maximum rating assignable. Id. While extraschedular consideration is provided for under 38 C.F.R. § 3.321(b)(1) when the record presents such “an exceptional or unusual disability picture as to render impractical the application of the regular rating schedule standards,” the Board finds the facts in this case do not present such an exceptional or unusual disability picture as to warrant extraschedular consideration for the Veteran’s claim for an increased rating for his tinnitus. As there is no legal basis upon which to award separate schedular evaluations for tinnitus in each ear, or for that matter, an evaluation in excess of 10 percent on any basis, granting the Veteran’s appeal is not warranted. Sabonis v. Brown, 6 Vet. App. 426 (1994). The law, not the underlying facts, is dispositive in this matter. 2. Entitlement to an earlier effective date prior to January 6, 2014 for grant of an increased rating of 20 percent for bilateral hearing loss The Veteran asserts that he believes he is entitled to an earlier effective date of his increased rating of 20 percent for his service connected bilateral hearing loss. The assignment of effective dates of awards is generally governed by 38 U.S.C. § 5110 and 38 C.F.R. § 3.400. 38 U.S.C. § 5110(a) provides that “the effective date of an award based on an original claim, a claim reopened after final adjudication, or a claim for increase, of compensation, dependency and indemnity compensation, or pension, shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor.” For an increased rating claim, the effective date assigned will be the date of claim, or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400(o)(1). However, if it is factually ascertainable that an increase in disability occurred within the one-year period prior to filing the claim, the effective date will be the date the increase was shown. 38 C.F.R. § 3.400(o)(2); see also Gaston v. Shinseki, 605 F.3d 979 (2010). The Veteran initially applied for VA benefits while still on active duty, and was awarded service connection for bilateral hearing loss at a noncompensable evaluation in a November 1985 rating decision, effective the first day after his separation from active duty, May 4, 1985. The Veteran had initiated the claim for a compensable rating for his bilateral hearing loss with a phone call to VA on January 30, 2014, which subsequently and properly became a formal claim as of that date. The Veteran received a VA examination suitable for rating purposes for his bilateral hearing loss on March 17, 2014, and the increased rating was subsequently awarded in a June 18, 2014 rating decision at an 80 percent evaluation effective from that January 30, 2014 date of claim. Subsequently, after a decision review officer decision on April 22, 2016, VA revised the effective date of increase for the Veteran’s bilateral hearing loss to January 6, 2014 because the Veteran had received VA treatment for his hearing loss on that date, to include an audiological evaluation and new hearing aids. Because the Veteran’s telephone call for his increased rating claim occurred prior to March 24, 2015, VA accepted this phone call under its earlier definition of what constituted an informal claim at the time. “Any communication or action, indicating an intent to apply for one or more benefits under the laws administered by the Department of Veterans Affairs, from a claimant, his or her duly authorized representative, a Member of Congress, or some person acting as next friend of a claimant who is not sui juris may be considered an informal claim.” 38 C.F.R. § 3.155 (2014). While VA no longer accepts informal claims for benefits after March 24, 2015, and now requires a written communication, the Board notes VA’s earlier definition of an informal claim applies to this earlier effective date claim and finds the date of claim to be January 30, 2014. See id.; 38 C.F.R. § 3.1(p) (2017). Here, the Board notes the presence of VA treatment records, dated January 6, 2014, for the Veteran being treated for his hearing loss and receiving new hearing aids. The Board finds that using the rule pursuant to 38 C.F.R. § 3.400(o)(2), the record indicates that an increase in the Veteran’s hearing disability occurred on the date of the VA treatment for his bilateral hearing loss, on January 6, 2014, and that day is therefore the date the increase in disability was factually ascertainable. Harper v. Brown, 10 Vet. App. 125 (1997); 38 C.F.R. § 3.400(o)(2); VAOPGCPREC 12-98 (Sept. 23, 1998). While the first communication that can be construed as a claim to open a claim for an increased rating for his bilateral hearing loss is when the Veteran filed an informal claim on January 30, 2014, the Board notes that the date the increase in disability became factually ascertainable is January 6, 2014, and is therefore appropriately the effective date of increase for the Veteran’s bilateral hearing loss. 38 C.F.R. § 3.400(o). The Board acknowledges the arguments advanced by the Veteran and his representative that those claims relate back earlier than January 2014. However, the law regarding effective dates is clear: if it is factually ascertainable that an increase in disability occurred within the one-year period prior to filing the claim, the effective date will be the date the increase was shown. 38 C.F.R. § 3.400(o)(2); see also 38 C.F.R. § 3.157. Under these facts, the earliest effective date the Veteran is entitled to for an increased rating for his bilateral hearing loss is the date of his increase in disability became factually ascertainable, January 6, 2014. Accordingly, the Veteran’s claim for an earlier effective date for an increased rating for his bilateral hearing loss must be denied as a matter of law. Neither the Veteran nor his representative has raised any other issues concerning the bilateral hearing and tinnitus disabilities, nor have any other issues been reasonably raised by the record beyond those already discussed and the remand following. See Doucette v. Shulkin, 28 Vet. App. 366, 369–70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). REASONS FOR REMAND 1. Entitlement to an acquired psychiatric disorder, to include major depressive disorder, to include as secondary to service connected disabilities, is remanded. The Veteran claims entitlement to an acquired psychiatric disorder, including major depressive disorder. The Veteran has not ever received a VA compensation and pension examination for any acquired psychiatric disorder, though he has received psychiatric treatment from VA going back to 1999. He also has never received an opinion for service connection for any acquired psychiatric disorder from any VA medical provider. VA must provide an examination that is adequate for rating purposes. Barr v. Nicholson, 21 Vet. App. 303 (2007). In addition, asserting the possibility of secondary service connection, the Veteran and his representative have stated that the Veteran’s acquired psychiatric disorders are due to his service-connected disabilities, including his hearing loss and tinnitus disabilities. The Veteran also has a complex history of substance abuse intertwined with the treatment of his psychiatric disorders. The United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that compensation cannot be awarded pursuant to 38 U.S.C. §§ 1110, 1131 and 38 C.F.R. § 105(a) either for a primary substance abuse disability incurred during service or for any secondary disability that resulted from primary substance abuse during service. Allen v. Principi, 237 F.3d 1368, 1376 (Fed. Cir. 2001). However, service connection may be granted for an alcohol or drug abuse disability acquired secondary to, or as a symptom of, a service-connected disability. The Federal Circuit further stated that such compensation may be awarded only “where there is clear medical evidence establishing that alcohol or drug abuse is caused by a veteran’s primary service-connected disability, and where the alcohol or drug abuse disability is not due to willful wrongdoing.” Id. at 1381. Direct service connection may be granted only when a disability was incurred or aggravated in line of duty, and not the result of the Veteran’s own willful misconduct or, for claims filed after October 31, 1990, the result of his abuse of alcohol or drugs. 38 U.S.C. § 105; 38 C.F.R. § 3.301(a). Willful misconduct is defined as an act involving conscious wrongdoing or known prohibited action. It involves deliberate or intentional wrongdoing with knowledge or wanton and reckless disregard of its probable consequences, to include the abuse of alcohol or drugs. 38 C.F.R. § 3.301(a). For the purposes of this paragraph, alcohol abuse means the use of alcoholic beverages over time, or such excessive use at any one time, sufficient to cause disability to or death of the user; drug abuse means the use of illegal drugs (including prescription drugs that are illegally or illicitly obtained), the intentional use of prescription or non-prescription drugs for a purpose other than the medically intended use, or the use of substances other than alcohol to enjoy their intoxicating effects. 38 C.F.R. § 3.301(d). See also 38 U.S.C. § 105; 38 C.F.R. § 3.1(m). 2. Entitlement to an increased rating in excess of 20 percent for right ankle disability is remanded. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary importance. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). When the evidence of record does not reflect the current state of the claimant’s disability, a VA examination must be conducted. Schafrath v. Derwinski, 1 Vet. App. 589 (1991); 38 C.F.R. § 3.327(a). Here, the Veteran is service connected for, inter alia, a right achilles tendon and ankle injury, under Diagnostic Code (DC) 5271. The Veteran’s claim for an increased rating for his right ankle disability has not been evaluated in a VA examination suitable for rating purposes since February 2014. Since the Veteran’s right ankle disability claim was last adjudicated, the United States Court of Appeals for Veterans Claims (Court) issued a decision in Correia v. McDonald, 28 Vet. App. 158 (2016). In that decision, the Court held that the final sentence of 38 C.F.R. § 4.59 requires that VA musculoskeletal examinations include joint testing for pain on both active and passive motion, and in weight-bearing and nonweight-bearing (and, if possible, with range of motion measurements of the opposite undamaged joint). This type of joint testing was not accomplished during the Veteran’s most recent VA examination in February 2014; accordingly, further VA examination is warranted. The Board notes that the Veteran reports flare ups of his ankle disability. The examiner is reminded that when Veteran reports flare ups of any disability, the examiner is asked to provide an opinion as to additional functional loss during flare-ups of the musculoskeletal disability, pursuant to DeLuca v. Brown, 8 Vet. App. 202 (1995). Additionally, the United States Court of Appeals for Veterans’ Claims (Court) recently addressed what constitutes an adequate explanation for an examiner’s inability to estimate motion loss in terms of degrees during periods of flare-ups. Sharp v. Shulkin, 29 Vet. App. 26 (2017). In Sharp, the Court held that a VA examiner must attempt to elicit information from the record and the Veteran regarding the severity, frequency, duration, or functional loss manifestations during flare-ups before determining that an estimate of motion loss in terms of degrees could not be given. It also held that any inability to furnish such an estimate must be predicated on a lack of medical knowledge among the medical community at large, rather than insufficient knowledge by the individual examiner. Id. 3. Entitlement to an increased rating in excess of 80 percent for bilateral hearing loss is remanded. The Veteran is seeking an increased rating for his service-connected bilateral hearing loss, currently rated at 80 percent, from January 6, 2014. The Veteran asserts that his service-connected bilateral hearing loss has worsened rapidly and significantly in recent years. The Veteran last received a VA examination for his bilateral hearing loss in March 2014; thus, a new VA examination is required to ascertain the current degree of the Veteran’s hearing loss disability. A new examination is appropriate when there is an assertion (and indication) of an increase in severity since the last examination. Palczewski v. Nicholson, 21 Vet. App. 174, 181 (2007). An examination for hearing impairment for VA purposes must be conducted by a state-licensed audiologist and must include a controlled speech discrimination test (Maryland CNC) and a puretone audiometry test. 38 C.F.R. § 4.85. 4. Entitlement to a total disability evaluation for individual unemployability (TDIU) is remanded. As mentioned earlier in this decision and remand, the Board finds that the issue of TDIU is inferred by the record. See generally Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001); Rice v. Shinseki, 22 Vet. App. 447 (2009). The Board also notes that the Veteran receives Social Security Disability compensation, primarily for mental disorders. Because the outcome of the remand could materially affect the Veteran’s ability to meet such schedular criteria, the TDIU claim is inextricably intertwined with the remanded acquired psychiatric disorder claim and therefore must be remanded as well. Harris v. Derwinski, 1 Vet. App. 180 (1991) (two issues are “inextricably intertwined” when they are so closely tied together that a final Board decision on one issue cannot be rendered until the other issue has been considered). The matters are REMANDED for the following action: 1. Make appropriate efforts to obtain and associate with the claims file any updated private or VA medical records identified and authorized for release by the Veteran. 2. Schedule the Veteran for a VA examination by a VA psychologist or psychiatrist to determine the nature and etiology of the Veteran’s acquired psychiatric disorder, to include major depressive disorder. The claims file must be made available to and reviewed by the examiner. After reviewing the claims file and examining the Veteran, the examiner should answer the following questions: a) Whether it is at least as likely as not (probability of 50 percent or greater) that the Veteran’s claimed acquired psychiatric disorder had its onset in service or is otherwise related any to any in-service disease, event, or injury. b) If not, is it at least as likely as not (a fifty percent probability or greater) that the acquired psychiatric disorder was caused by the Veteran’s service-connected disabilities, to include his hearing disabilities and/or the treatment required for it? c) If the service-connected disabilities, including the hearing disabilities or their treatment did not cause the acquired psychiatric disorder, is it at least as likely as not (a fifty percent probability or greater) that an acquired psychiatric disorder was aggravated by the hearing disabilities or its treatment? d) If aggravation is found, please identify to the extent possible the baseline level of disability prior to the aggravation and determine what degree of additional impairment is attributable to aggravation of the acquired psychiatric disorder by the service connected disability. In forming the opinion regarding service connection, the examiner is requested to distinguish between substance abuse that is due to the Veteran’s own willful misconduct from that which is or may be due to the Veteran’s diagnosed psychiatric disorder(s). 3. Schedule the Veteran for a VA examination to determine the current nature and severity of his service-connected right ankle disability. The claims folder must be made available to the examiner in conjunction with the examination. Any appropriate evaluations, studies, and testing deemed necessary by the examiner should be conducted. The examiner should describe the nature and extent of the Veteran’s service-connected right ankle disability, to include orthopedic and neurologic manifestations. The VA examiner should conduct, consistent with 38 C.F.R. § 4.59, range-of-motion testing and provide commentary regarding symptoms, including painful motion, functional loss due to pain, excess fatigability, weakness, and additional disability during flare-ups. The testing should also include the left ankle. Any additional loss of motion with repetitive movement must be noted. The examiner should inquire as to periods of flare-up, and note the frequency and duration of any flare-ups. The examiner must estimate the effect of all functional losses, including due to flare-ups, by equating the disability experienced due to such losses to additional loss of motion (stated in degrees) beyond what is shown clinically. The examination should be conducted in accordance with the current disability benefits questionnaire and consistent with Sharp v. Shulkin, 29 Vet. App. 26 (2017). The Court explained that case law and VA guidelines anticipate that examiners will offer flare opinions based on estimates derived from information procured from relevant sources, including lay statements of veterans, to ascertain adequate information—i.e. frequency, duration, characteristics, severity, or functional loss—regarding his flares by alternative means. An examiner must do all that reasonably should be done to become informed before concluding that a requested opinion cannot be provided without resorting to speculation. For any examinations provided for both the left and right ankle disabilities, the examiner is to specifically test the range of motion in active motion, passive motion, weight-bearing, and nonweight-bearing, for both the joint(s) in question and any paired joint(s). See Correia v. McDonald, 28 Vet. App. 158 (2016). If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. 4. Schedule the Veteran for an audiological examination to determine the severity of his service-connected bilateral hearing loss disability. It is imperative that the claims file be made available to the examiner for review in connection with the examination. The examiner should note that the claims file has been reviewed. All indicated tests and studies should be performed and all clinical and special test findings should be reported in detail to allow for evaluation under applicable VA rating criteria. For each ear, the examiner is asked to specifically record the decibel loss at the 1000, 2000, 3000, and 4000 Hz frequencies, and should provide results of a Maryland CNC word recognition test. The examiner should also address any functional impairment resulting from the Veteran’s hearing loss and its effects on his ordinary activities. 5. A detailed rationale supporting each examiner’s opinion should be provided. In forming the opinion, the examiner must consider all lay statements of record. If the examiner feels that the requested opinions cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required or the examiner does not have the needed knowledge or training). Jones v Shinseki, 23 Vet. App. 382 (2010). The examiner is reminded that the term “as likely as not” does not mean “within the realm of medical possibility,” but rather that the evidence of record is so evenly divided that, in the examiner’s expert opinion, it is as medically sound to find in favor of the proposition as against it. 6. Thereafter, readjudicate the issues on appeal, to include the TDIU. If the determination remains unfavorable to the Veteran, he and his representative should be furnished a supplemental statement of the case which addresses all evidence associated with the claims file since the last statement of the case. The Veteran and his representative should be afforded the applicable time period in which to respond. 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). (CONTINUED ON NEXT PAGE) 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. §§ 5109B, 7112 (2012). Michael Pappas Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Setter, Associate Counsel