Citation Nr: 18153759 Decision Date: 11/29/18 Archive Date: 11/28/18 DOCKET NO. 11-13 697 DATE: November 29, 2018 REMANDED Entitlement to a rating in excess of 10 percent prior to April 18, 2017, and in excess of 30 percent thereafter for degenerative disc disease of the cervical spine is remanded. Entitlement to a compensable rating prior to March 17, 2017, and 10 percent thereafter for bilateral hearing loss is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty from September 1988 to August 1997. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a November 2009 rating decision by a Department of Veterans Affairs Regional Office. In February 2016, the Veteran testified before a Veterans Law Judge (VLJ) at a Board hearing. While the matter was pending, the VLJ who conducted this hearing retired. Generally, the law requires that the VLJ who conducts a hearing on an appeal must participate in any decision made on that appeal. See 38 U.S.C. § 7107(c); 38 C.F.R. § 20.707. As the VLJ who conducted the February 2016 Board hearing has since retired, she cannot participate in the adjudication of the Veteran’s claims. In August 2018 correspondence, the Veteran indicated that he did not want another hearing. Therefore, the Board will proceed with addressing the appeal. In September 2016, the Board remanded the appeal for additional development. In a February 2018 rating decision, service connection was granted for tinnitus and for a cyst status post resection of the right hand and long finger. This represents a full grant of the benefits sought with respect to those issues. In an April 2018 rating decision, the rating for degenerative disc disease of the cervical spine was increased to 30 percent, effective April 18, 2017, and the rating for bilateral hearing loss was increased to 10 percent, effective March 17, 2017. As the increases do not satisfy the appeal in full, the issues remain on appeal. See AB v. Brown, 6 Vet. App. 35 (1993). As such, the issues are characterized as reflected on the title page. In his September 2018 correspondence, the Veteran stated that he was representing himself in the appeal, thereby revoking any power of attorney in the claims file. 1. Entitlement to a rating in excess of 10 percent prior to April 18, 2017, and 30 percent thereafter for degenerative disc disease of the cervical spine (neck disability). 2. Entitlement to a compensable rating prior to March 17, 2017, and 10 percent thereafter for bilateral hearing loss. 3. Entitlement to a TDIU In an August 2018 submission, the Veteran stated that, as a result of his service-connected bilateral hearing loss and neck disability, he was forced to retire in June 2018. He specifically reported an inability to pass the physical standards tests required by the agency with which he was employed. He noted severe impairment due to both his neck disability and hearing loss for at least four years before he retired and that he had become a safety hazard to law enforcement operations. The Board finds remand, therefore, is required to allow VA to obtain authorization and request the medical records associated with the Veteran’s retirement in June 2018. In addition, the Veteran reported that the frequency of incapacitating muscle spasms had increased from an average of four times per year to twice a month and that his private chiropractor advised him to limit physical activity due to his neck disability. Recent treatment records also reflect assessments in March 2018 of cervical hypo lordosis, cervical spinous rotation, cervical degenerative disc disease, disc space narrowing, and lateral osteophytes. Upon review, the Board finds new VA examinations are needed based on the Veteran’s assertions that his neck disability and hearing loss have worsened since the most recent VA examinations in 2017. See Snuffer v. Gober, 10 Vet. App. 400, 403 (1997). Prior to the examinations, any outstanding records of pertinent medical treatment must be obtained and added to the record. Because a decision on the increased rating claims could significantly impact a decision with respect to entitlement to a TDIU, the issues are inextricably intertwined. Thus, remand of the claim for a TDIU is required. The matters are REMANDED for the following actions: 1. Ask the Veteran to complete a VA Form 21-4142 for any outstanding medical records, to include those associated with his retirement in 2008. Thereafter, obtain all outstanding, identified medical records. 2. After completion of the above, schedule the Veteran for an examination by an appropriate clinician to determine the severity of his service-connected degenerative disc disease of the cervical spine prior to April 18, 2017, and since April 18, 2017. If any increase in the disability is found, the date upon which the increase occurred should be identified to the extent possible. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. The examiner must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. To the extent possible, the examiner should identify any symptoms and functional impairments due to the cervical spine disability alone and discuss the effect of the Veteran’s cervical spine disability on any occupational functioning and activities of daily living. If it is not possible to provide a specific measurement, or an opinion regarding flare-ups, symptoms, or functional impairment without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training 3. Schedule the Veteran for an examination by an appropriate clinician to determine the severity of his bilateral hearing loss prior to March 17, 2017, and since March 17, 2017. If any increase in the disability is found, the date upon which the increase occurred should be identified, to the extent possible. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. To the extent possible, the examiner should identify any symptoms and functional impairments due to bilateral hearing loss alone and discuss the effect of the Veteran’s bilateral hearing loss on any occupational functioning and activities of daily living. A rationale should be provided for any opinion rendered. M. M. CELLI Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Taylor