Citation Nr: 1807836	
Decision Date: 02/07/18    Archive Date: 02/20/18

DOCKET NO.  14-14 265	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Roanoke, Virginia


THE ISSUES

1.  Entitlement to service connection for vestibular dysfunction, manifesting as vertigo and dizziness.

2.  Entitlement to an initial compensable evaluation for bilateral hearing loss prior to August 3, 2011.

3.  Entitlement to an evaluation in excess of 20 percent from August 3, 2011, and in excess of 30 percent from November 16, 2016, for bilateral hearing loss.

4.  Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU).


REPRESENTATION

Veteran represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

N. Rasool, Associate Counsel


INTRODUCTION

The Veteran had active service in the U.S Navy from March 1962 to March 1965.  

This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions issued by Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia (hereinafter Agency of Original Jurisdiction (AOJ)).  

In a July 2010 decision, the AOJ assigned a noncompensable disability rating, effective November 19, 2009, for bilateral hearing loss.  In April 2012, the AOJ assigned a rating of 20 percent, effective August 3, 2011.  In December 2016, following the issuance of a supplemental statement of the case (SSOC), the AOJ assigned a rating of 30 percent, effective November 16, 2016.  

These staged ratings do not represent the maximum disability ratings assignable for this disability, and the Veteran has not indicated that the current staged ratings are the maximum he is seeking.  As higher ratings are available and a claimant is presumed to be seeking the maximum available rating for a service-connected disability, the claim for a higher rating, as reflected on the title page, remains in appellate status.   See AB v. Brown, 6 Vet. App. 35, 38 (1993); see also Murphy v. Shinseki, 26 Vet. App. 510, 514 (2014).  The Board has characterized the issue on appeal to reflect that these staged ratings are in effect.  See Fenderson v. West, 12 Vet. App. 119, 126 (1999).

In April 2017, the Veteran was afforded a videoconference hearing before the undersigned Veterans Law Judge (VLJ).  A transcript of the hearing is associated with the record.  The Board notes that the Veteran's April 2017 hearing testimony raised the issue of entitlement to TDIU.  Therefore, the title page of this decision reflects the claim for TDIU.  See Clemons v. Shinseki, 23 Vet. App. 1, 9 (2009).

In December 2017, the Board sought expert opinion from the Veterans Health Administration (VHA) on the issue of entitlement to service connection for vestibular dysfunction.  An opinion was received in January 2018.  As this opinion is fully favorable to the Veteran, the Board will proceed to adjudicate the claim on the merits rather than delay the case to provide the Veteran a copy of the opinion letter with an opportunity to respond.

The issue of TDIU is addressed in the REMAND portion of the decision below and is REMANDED to the AOJ.


FINDINGS OF FACT

1.  Vestibular dysfunction is as likely as not secondary to service-connected migraines.

2.  From November 19, 2009 through August 2, 2011, a bilateral hearing loss disability had been manifested by, at worst, Level III, in the right ear, and Level III, in the left ear.

3.  From August 3, 2011 through November 15, 2016, a bilateral hearing loss disability had been manifested by, at worst, Level IV, in the right ear, and Level VII, in the left ear.

4.  Since November 16, 2016, a bilateral hearing loss disability has been manifested by, at worst, Level IV, in the right ear, and Level IX, in the left ear.


CONCLUSIONS OF LAW

1.  With resolution of reasonable doubt in the Veteran's favor, the criteria for service connection on a secondary basis for vestibular dysfunction are met.  38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.303, 3.310 (2017).

2.  The criteria for an initial compensable evaluation from November 19, 2009 through August 2, 2011, for a bilateral hearing loss disability have not been met.  
38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.1, 4.14, 4.85, 4.86 (2017).

3.  The criteria for an evaluation in excess of 20 percent from August 3, 2011 through November 15, 2016, for a bilateral hearing loss disability have not been met.  38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.1, 4.14, 4.85, 4.86 (2017).

4.  The criteria for an evaluation in excess of 30 percent from November 16, 2016, for a bilateral hearing loss disability have not been met.  38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.1, 4.14, 4.85, 4.86 (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

The Veterans Claims Assistance Act of 2000 (VCAA), in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits.  
38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (2012); 38 C.F.R. 
§ 3.159 (2017).

As indicated in the INTRODUCTION above, the claim for a higher rating arises from the Veteran's disagreement with the initial rating assigned in connection with the grant of service connection.  The courts have held, and VA's General Counsel has agreed that where an underlying claim for service connection has been granted and there is disagreement as to "downstream" questions, the claim has been substantiated and there is no need to provide additional VCAA notice nor is there prejudice from the absence of VCAA notice.  Hartman v. Nicholson, 483 F.3d 1311, 1314-15 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112, 116-7 (2007); VAOPGCPREC 8-2003 (2003).

The United States Court of Appeals for Veterans Claims (Court) has elaborated that filing a notice of disagreement begins the appellate process, and any remaining concerns regarding evidence necessary to establish a more favorable decision with respect to downstream elements (such as a disability rating) are appropriately addressed under the notice provisions of 38 U.S.C. §§ 5104 and 7105.  Goodwin v. Peake, 22 Vet. App. 128, 137 (2008).  Consequently, further discussion of the VCAA's notification requirements with regard to this claim is unnecessary.

The VCAA also requires VA to make reasonable efforts to help a claimant obtain evidence necessary to substantiate any claims.  38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c), (d).  This "duty to assist" contemplates that VA will help a claimant obtain records relevant to his or her claim, whether or not the records are in Federal custody, and that VA will provide a medical examination or obtain an opinion when necessary to make a decision on the claim.  38 C.F.R. § 3.159(c)(4).

In this case, VA fulfilled its duty to assist by obtaining all identified and available evidence needed to substantiate the claims on appeal.  The Veteran was also afforded multiple medical examinations relating to his claim for a higher rating, most recently in November 2016.  

The Board recognizes VA's duty to obtain updated clinical information when the available evidence indicates a worsening of the disability.  A review of the objective evidence reflects no credible lay or medical evidence of worsening since the most recent November 2016 examination.  As such, the Board finds that the examinations of record, considered collectively, are adequate for ratings purposes.  See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007).

For the reasons set forth above, the Board finds that VA has complied with the VCAA's notification and assistance requirements with regard to these claims.  There is no additional evidence which needs to be obtained.  The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran.

With regards to the service connection claim, to the extent that the action taken below is favorable to the Veteran, further discussion of VA's duties to notify and assist is not required at this time.  See Wensch v. Principi, 15 Vet. App. 362, 367-68 (2001).

Vestibular Dysfunction

The Veteran appeals the denial of service connection for vestibular dysfunction, manifesting as vertigo and dizziness.  He argues that his vestibular dysfunction may be directly related to service or secondary to his service-connected conditions, including bilateral hearing loss and migraines.  The Veteran's private medical records note a diagnosis of vestibular dysfunction.  See e.g. neurology follow-up visit record, dated October 7, 2011.

Generally, service connection may be established for disability resulting from disease or injury incurred in or aggravated by service.  38 U.S.C. § 1110 (2012); 38 C.F.R. § 3.303(a).  In order to establish service connection, the following must be shown: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service.  Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).  A disability may be found service-connected on a secondary basis by demonstrating that the disability is either (1) proximately due to or the result of an already service-connected disease or injury or (2) aggravated by an already service-connected disease or injury.  See Allen v. Brown, 7 Vet. App. 439, 448 (1995); 38 C.F.R. § 3.310.

In evaluating a claim, the Board must determine the value of all evidence submitted, including lay and medical evidence.  Buchanan v. Nicholson, 451 F.3d 1331, 1335 (2006).  The evaluation of evidence generally involves a three-step inquiry.  First, the Board must determine whether the evidence comes from a "competent" source. Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience.  Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person.  38 C.F.R. § 3.159(a); Layno v. Brown, 6 Vet. App. 465, 470 (1994).  Lay evidence can also be competent and sufficient evidence of a diagnosis if (1) the medical issue is within the competence of a layperson, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional.  See Kahana v. Shinseki, 24 Vet. App. 428, 433 (2011); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007).

If the evidence is competent, the Board must then determine if the evidence is credible, or worthy of belief.  Barr v. Nicholson, 21 Vet. App. 303, 308 (2007).  After determining the competency and credibility of evidence, the Board must then weigh its probative value.  In this regard, the Board may properly consider internal inconsistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant.  Caluza v. Brown, 7 Vet. App. 498, 511-12 (1995).

When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant.  38 U.S.C. § 5107 (2012); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).  To deny a claim on its merits, the evidence must preponderate against the claim.  Alemany v. Brown, 9 Vet. App. 518, 519 (1996).

In this case, the Board has been presented with conflicting evidence as to the etiology of the Veteran's vestibular dysfunction.  In this regarding, in an April 2011 letter, private neurologist Dr. B indicated that in-service noise exposure may have set the stage for the development of the Veteran's vestibular dysfunction.

The Veteran underwent August 2013 VA examination wherein the examiner indicated that, based on review of the medical record, that there was no supportive evidence to conclude that the Veteran's claimed vestibular dysfunction was due to bilateral hearing loss.  The VA examiner did not provide an opinion on whether vestibular dysfunction was directly related to service.

However, in a March 2017 letter, Dr. B opined that the Veteran's vestibular dysfunction was directly associated with noise-induced hearing loss because there were no other viable explanations for the condition.  Dr. B further stated that, in his own experience and in neurologic literature, hearing loss and accompanying vestibular dysfunction can be fully explained on the basis of loud noise exposure when there has been no ear protection.

Given the conflict between the opinions of the VA examiner and the Veteran's neurologist, the Board obtained a January 2018 advisory medical opinion from VHA otolaryngologist Dr. V.  Dr. V reviewed the medical record and answered "no" to the questions of whether the Veteran's vestibular dysfunction was at least as likely as not that the Veteran's service-connected hearing loss.  However, the otolaryngologist instead opined that the condition was likely caused by the Veteran's service-connected migraines.  In support of this opinion, Dr. V cited treatment records indicating the Veteran's episodes of vertigo and dizziness occasionally occurred at the same time as his migraines.  Dr. V further cited private treatment records indicating the Veteran's use of medication for migraines also managed his symptoms of dizziness.

While the Board has been presented with positive and negative evidence on this matter, the Veteran's statements in conjunction with the opinion from Dr. V that the Veteran's service connected migraines likely cause vestibular dysfunction place the evidence at least in equipoise.  Because there is an approximate balance of positive and negative evidence, the benefit of the doubt must be applied in favor of the Veteran.  38 U.S.C. § 5107(b); see Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also 38 C.F.R. § 3.102.  Accordingly, service connection for vestibular dysfunction as secondary to service-connected migraines is granted.


Bilateral Hearing Loss

The Veteran contends that he is entitled to an increased disability rating for service-connected bilateral hearing loss.

Disability evaluations are determined by evaluating the extent to which a Veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule).  38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10.

If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower evaluation will be assigned.  38 C.F.R. § 4.7.  However, the evaluation of the same disability under various diagnoses, known as pyramiding, is to be avoided.  38 C.F.R. § 4.14.  Any reasonable doubt regarding a degree of disability is resolved in favor of the Veteran.  38 C.F.R. § 4.3.

The Veteran's entire history is to be considered when making disability evaluations.  See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995).

"Staged" ratings are appropriate for any rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings.  See Hart v. Mansfield, 21 Vet. App. 505 (2007).

A rating for hearing loss is determined by a mechanical application of the rating schedule to the numeric designations assigned based on audiometric test results.  See Lendenmann v. Principi, 3 Vet. App. 345 (1992).

Evaluations of bilateral hearing loss range from noncompensable to 100 percent, based on organic impairment of hearing acuity, as measured by a controlled speech discrimination test (Maryland CNC) and the average hearing threshold, as measured by pure tone audiometric tests at the frequencies of 1000, 2000, 3000, and 4000 Hertz. The rating schedule establishes 11 auditory acuity levels designated from Level I, for essentially normal hearing acuity, through level XI for profound deafness.  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 pure tone audiometry test.  Examinations will be conducted without the use of hearing aids.  38 C.F.R. § 4.85(a). 

Under 38 C.F.R. § 4.85, Table VI (Numeric Designation of Hearing Impairment Based on Pure tone Threshold Average and Speech Discrimination) is used to determine a Roman numeral designation (I through XI) for hearing impairment based on a combination of the percent of speech discrimination (horizontal rows) and the pure tone threshold average (vertical columns).  The Roman numeral designation is located at the point where the percentage of speech discrimination and pure tone average intersect.  38 C.F.R. § 4.85(b).  The pure tone threshold average is the sum of the pure tone thresholds at 1000, 2000, 3000, and 4000 Hertz, divided by 4.  This average is used in all cases to determine the Roman numeral designation for hearing impairment. 38 C.F.R. § 4.85(d).

Where there is an exceptional pattern of hearing impairment as defined in 38 C.F.R. § 4.86, the rating may be based solely on pure tone threshold testing.  An exceptional pattern of hearing impairment occurs when the pure tone thresholds in each of the four frequencies: 1000, 2000, 3000, and 4000 Hertz are 55 decibels or greater or when the pure tone threshold at 1000 Hertz is 30 decibels or less, and the threshold at 2000 Hertz is 70 decibels or more.  38 C.F.R. § 4.86(a), (b).

April 2009 private audiological records revealed puretone averages of 18 decibels for the right ear and 28 decibels for the left ear. Word discrimination scores were 84 percent for the right ear and 88 percent for the left ear.  There was no indication that the Maryland CNC word list was used.  According to Table VIA, found in 38 C.F.R. § 4.85, which is applicable when an examiner certifies that the use of the speech discrimination test is not appropriate because of language difficulties, inconsistent speech discrimination scores, etc., or when indicated under the provisions of § 4.86, the numeric designation of hearing impairment based on pure tone threshold average was found to be Roman numeral I, for the right ear.  This was found by matching the puretone average value with the designated Roman numeral.  For the left ear, the designation was also found to be Roman numeral I.  A 0 percent evaluation was derived from application of Table VII in 38 C.F.R. § 4.85, by intersecting row I, the better ear, with column I, the poorer ear.  These results did not show an exceptional pattern of hearing impairment as defined in 38 C.F.R. § 4.86.

A March 2010 VA audiology consult record noted that an audiological assessment showed evidence of severe sensorineural hearing loss at frequencies greater than 2000 Hz for the right ear, and greater than 1000 Hz for the left ear.  Based on this assessment, the Veteran was found to be a candidate for hearing aids.

A June 2010 VA examination revealed the following pure tone thresholds (in decibels):




HERTZ


1000
2000
3000
4000
RIGHT
20
25
60
70
LEFT
10
40
70
75

Speech audiometry revealed speech recognition ability of 76 percent in the right ear, and 76 percent in the left ear.  According to Table VI, found in 38 C.F.R. § 4.85, the numeric designation of hearing impairment based on pure tone threshold average and speech discrimination was found to be Roman numeral III, for the right ear.  This was derived by intersecting the percent of speech discrimination row (76 percent, in this case) with the pure tone threshold average column (44, in this case).  For the left ear, the designation was found to be Roman numeral III, derived by intersecting the percent of speech discrimination row (76 percent, in this case) with the pure tone threshold average column (49, in this case).  A 0 percent evaluation was derived from application of Table VII in 38 C.F.R. § 4.85, by intersecting row III, with column III.  These results did not show an exceptional pattern of hearing impairment as defined in 38 C.F.R. § 4.86.

January 2011 private audiological records revealed puretone averages of 23 decibels for the right ear and 25 decibels for the left ear. Speech recognition threshold scores were 20 for the right ear and 25 for the left ear, and word discrimination scores were 80 percent for the right ear and 84 percent for the left ear.  There was no indication that the Maryland CNC word list was used.  According to Table VIA, found in 38 C.F.R. § 4.85, the numeric designation of hearing impairment based on pure tone threshold average was found to be Roman numeral I, for the right ear.  For the left ear, the designation was also found to be Roman numeral I.  A 0 percent evaluation was derived from application of Table VII in 38 C.F.R. § 4.85, by intersecting row I with column I.  These results did not show an exceptional pattern of hearing impairment as defined in 38 C.F.R. § 4.86.

A January 2012 VA examination revealed the following pure tone thresholds (in decibels):




HERTZ


1000
2000
3000
4000
RIGHT
25
45
60
65
LEFT
45
70
80
75

Speech audiometry revealed speech recognition ability of 68 percent in the right ear, and 60 percent in the left ear.  According to Table VI, found in 38 C.F.R. § 4.85, the numeric designation of hearing impairment based on pure tone threshold average and speech discrimination was found to be Roman numeral IV, for the right ear.  This was derived by intersecting the percent of speech discrimination row (68 percent, in this case) with the pure tone threshold average column (49, in this case).  For the left ear, the designation was found to be Roman numeral VII, derived by intersecting the percent of speech discrimination row (60 percent, in this case) with the pure tone threshold average column (68, in this case).  A 20 percent evaluation was derived from application of Table VII in 38 C.F.R. § 4.85, by intersecting row IV, with column VII.  These results did not show an exceptional pattern of hearing impairment as defined in 38 C.F.R. § 4.86.

A May 2014 VA audiology consult record noted that an audiological assessment showed evidence of mild to moderately severe sensorineural hearing loss at frequencies greater than 1000 Hz for the right ear, and moderate to severe sensorineural hearing loss at frequencies greater than 500 Hz for the left ear.  

A November 2016 VA examination revealed the following puretone thresholds (in decibels):




HERTZ


1000
2000
3000
4000
RIGHT
40
60
60
65
LEFT
50
75
85
85

Speech audiometry revealed speech recognition scores of 80 percent in the right ear and 44 percent in the left ear.  The Veteran was diagnosed with bilateral sensorineural hearing loss in the frequency range of 500-4000 Hz and in the frequency of 6000 Hz or higher.  The examiner also noted that the Veteran's hearing loss did impact his ordinary conditions of daily life, including his ability to work, because the Veteran had difficulty understanding hearing in noise at home and at restaurants.

According to Table VI, found in 38 C.F.R. § 4.85, the numeric designation of hearing impairment based on pure tone threshold average and speech discrimination was found to be Roman numeral IV, for the right ear.  This was derived by intersecting the percent of speech discrimination row (80 percent, in this case) with the pure tone threshold average column (56, in this case).  For the left ear, the designation was found to be Roman numeral IX, derived by intersecting the percent of speech discrimination row (44 percent, in this case) with the pure tone threshold average column (74, in this case).  A 30 percent evaluation was derived from application of Table VII in 38 C.F.R. § 4.85, by intersecting row IV, with column IX.  These results did not show an exceptional pattern of hearing impairment as defined in 38 C.F.R. § 4.86.

At the April 2017 hearing, the Veteran reported that he had difficulty hearing others unless he used hearing aids.

After reviewing the evidence of record, the Board finds that the Veteran is not entitled to an initial compensable rating for bilateral hearing loss prior to August 3, 2011.  Audiology examinations prior to August 3, 2011, consisting of both VA and private audiological findings, revealed results which did not meet the criteria for a compensable rating.  See Lendenmann, 3 Vet. App. 345 (1992) (assignment of disability ratings for hearing impairment are derived by a mechanical application of the rating schedule to the numeric designations assigned after audiometric evaluations are rendered).  

Similarly, the Veteran is also not entitled to a rating in excess of 20 percent prior to November 16, 2016, as results prior to that date, including the January 2012 VA audio examination, did not meet the criteria for a rating in excess of 20 percent.  

Further, the Veteran is not entitled to a rating in excess of 30 percent since November 16, 2016, as the November 2016 VA examination results did not meet the criteria for a rating in excess of 30 percent.  The Board is bound to apply the VA rating schedule, under which the rating criteria are defined and limited by audiometric findings and word recognition testing.  As such, based on this mechanical application of the ratings schedule to the numeric designations derived from the audiometric evaluations, there is no basis for any increase in evaluation for hearing impairment in excess of 30 percent.  See Lendenmann, 3 Vet. App. 345 (1992).

In so holding, the Board acknowledges the Veteran's statements that his hearing loss is more severe than evaluated, but notes that the rating criteria require very specific measurable results from audiometric and word testing to provide for certain schedular ratings.  Even when applying the benefit of the doubt rule, the Board finds that the Veteran's descriptions are insufficiently specific to factually ascertain that the level of hearing acuity shown on November 16, 2016, had been present for an earlier time period.

The Veteran reported difficulties with hearing other people.  The Board notes that while the Veteran is competent to report symptoms such as an inability to understand speech, he is not competent to report that his hearing acuity is of sufficient severity to warrant a compensable or higher evaluation under VA's tables for rating hearing loss disabilities because such an opinion requires medical expertise (training in evaluating hearing impairment), which he is not shown to have.  See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009).  His functional impairments are contemplated in the assigned schedular ratings.  See Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (2017).

In sum, the Board concludes that the preponderance of the evidence of record is against a finding that the Veteran's bilateral hearing loss disability warrants a higher rating during the appeal period.  The evidence in this case is not so evenly balanced so as to allow application of the benefit-of-the-doubt rule.  Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102.


ORDER

Entitlement to service connection for vestibular dysfunction is granted.

Entitlement to an initial compensable evaluation prior to August 3, 2011, for bilateral hearing loss, is denied.

Entitlement to an increased evaluation in excess of 20 percent prior to November 16, 2016, for bilateral hearing loss, is denied.

Entitlement to an increased evaluation in excess of 30 percent from November 16, 2016, for bilateral hearing loss, is denied.


REMAND

At the April 2017 hearing, the Veteran indicated he was unable to work due to service-connected disabilities.  In this case, the AOJ has not considered whether the Veteran is entitled to TDIU due to his service-connected disabilities.  The Board finds that AOJ should adjudicate this matter, in the first instance, to avoid any prejudice to the Veteran.  See e.g. Bernard v. Brown, 4 Vet. App. 384 (1993).  


Accordingly, the case is REMANDED for the following action:

1.  Send the Veteran a letter advising him of the information and evidence needed to award a TDIU.  This letter should also request that he complete a VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability, in order to provide the information needed to substantiate the claim of TDIU.

2.  Obtain any available VA treatment records since February 2016.

3.  Schedule the Veteran for a VA examination to determine all functional impairment and interference with employability caused by his service-connected disabilities.

The examiner is requested to provide a full description of the effects, to include all associated limitations, of the Veteran's service-connected disabilities on employment activities without considering his age or any impairment caused by nonservice-connected disabilities.

4.  Thereafter, adjudicate the claim for TDIU.  If the benefit sought on appeal remains denied, the Veteran and representative should be furnished a Supplemental Statement of the Case and afforded an appropriate opportunity to respond.

The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

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).




______________________________________________
T. MAINELLI
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs