Citation Nr: 1807049 Decision Date: 02/02/18 Archive Date: 02/14/18 DOCKET NO. 10-44 029A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to an increased rating for a bilateral hearing loss disability. 2. Entitlement to total disability rating due to individual unemployability (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD J. Anderson, Counsel INTRODUCTION The Veteran served on active duty from September 1978 to June 1980. These matters come before the Board of Veterans' Appeals (Board) on appeal from a November 2008 rating decision by a Regional Office (RO) of the Department of Veterans Affairs (VA). In April 2014, the Veteran testified at a Travel Board hearing before the undersigned Veterans Law Judge (VLJ). A transcript of that hearing is of record. These matters were previously before the Board in December 2014 and May 2017, when they were remanded for additional development. At that time, the Board also remanded the issue of entitlement to service connection for a low back condition. During the pendency of the remand, the claim was granted in an October 2017 rating decision. As that decision constitutes a grant of the claim for service connection, it is no longer on appeal. See generally Grantham v. Brown, 114 F.3d 1156, 1158-59 (Fed. Cir. 1997) (because appellant's first appeal concerned rejection of logically up-stream element of service connection, appeal could not concern logically down-stream elements). The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND The Board finds that further development of the claims is necessary prior to appellate review. There are outstanding VA treatment records. Specifically, an April 17, 2017 VA treatment record indicates that the Veteran had a follow up appointment scheduled on June 5, 2017. Treatment records subsequent to May 2, 2017 have not been associated with the claims file. Additionally, the May 2017 remand directed that a November 26, 2008 audiology report from 13:08:11, which a December 1, 2008 VA treatment record indicated had been uploaded into VistA Imaging, be associated with the claims file. A May 2017 report of general information indicates that the December 1, 2008 audiology note was reviewed but was not obtainable. It is unclear whether the report of contact was referring to the November 26, 2008 audiology note. Additionally, even assuming arguendo that it was, the report of general information is insufficient to find that further efforts to obtain the record would be futile as it indicates that the record had been reviewed but does not explain why the record could not be associated with the claims file. Accordingly, on remand updated VA treatment records and the November 26, 2008 audiology note should be associated with the claims file. The Veteran's last VA audiological examination was in April 2016. An April 2017 VA treatment record noted that the Veteran reported decreased hearing acuity for approximately one month. In light of the above, the Board finds that a contemporaneous VA audiological examination is warranted. With regard to the Veteran's TDIU claim, an October 13, 2016 VA treatment record indicates that the Veteran worked as recently as 2015, and that occupation in the last three years was as a store clerk. The Veteran has not identified any employers subsequent to his last reported employment in March 2007. As such information is relevant to the pending appeal it should be requested. Accordingly, the case is REMANDED for the following actions: 1. Obtain VA treatment records from May 2, 2017 to present, as well as the VistA Imaging audiology document from November 26, 2008, which was referenced in the December 1, 2008 VA treatment record, and associate them with the claims file. If any requested records cannot be obtained, the reason should be documented in the claims file and the Veteran should be notified. If the AOJ determines that further attempts to obtain a particular record would be futile, it should be so stated. 2. Ask the Veteran to provide the names and addresses of all medical care providers who have treated him for his disabilities on appeal. After securing the necessary releases, request any relevant records identified that are not duplicates of those already contained in the claims file. If any requested records cannot be obtained, the Veteran should be notified. 3. Ask the Veteran to submit a fully completed VA Form 21-8940, Veterans Application for Increased Compensation Based on Unemployability, to include any full-time or part-time employment subsequent to March 2007. 4. After the above has been completed to the extent possible, schedule the Veteran for a VA audiological examination to determine the current severity of his bilateral hearing loss disability. The claims file should be reviewed by the examiner in conjunction with the examination. Any indicated tests or studies should be completed. All associated symptomatology should be noted, as well as the related functional impairment, if any. The examiner should address how the manifestations of the Veteran's service-connected hearing loss and tinnitus impact his ability to perform tasks of sedentary and non-sedentary employment consistent with the Veteran's education (high school graduate with some college) and occupational experience (security guard, insurance agent, limousine driver, salesman, ramp agent for airline, store clerk), without consideration of age and nonservice-connected disorders. 5. After the above has been completed to the extent possible, readjudicate the claims. If the benefits sought on appeal remain denied, issue a supplemental statement of the case to the Veteran and his representative, and provide an appropriate period for response. Thereafter, return the appeal to the Board as warranted. The appellant has the right to submit additional evidence and argument on the 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 (2012). _________________________________________________ K. A. BANFIELD 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).