Citation Nr: 18112489 Decision Date: 06/19/18 Archive Date: 06/19/18 DOCKET NO. 06-13 435 DATE: June 19, 2018 REMANDED Entitlement to a compensable rating for bilateral hearing loss is remanded. Entitlement to a total disability rating based upon individual unemployability due to service-connected disabilities (TDIU). is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from October 1975 to April 1977. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an April 2005 rating decision by the St. Louis, Missouri, Regional Office (RO) of the Department of Veterans Affairs (VA). In June 2009, the case first came before the Board and the Board denied a compensable rating for hearing loss, denied entitlement to service connection for left hearing loss, and granted service connection for a low back disorder. Lastly, the Board remanded the Veteran’s cervical disc fusion for further development. In December 2010, the Board once again remanded the Veteran’s claim for entitlement to service connection for cervical disc fusion for further development. Following the June 2009 Board decision, the Veteran had appealed that decision to the United States Court of Appeals for Veterans Claims. (Court). By a June 2011 Memorandum Decision and July 2011 order, the Court vacated the part of the Board’s June 2009 decision which denied service connection for left ear hearing loss and denied a compensable rating for right ear hearing loss. In March 2012, the Veteran’s case returned to the Board. The Board remanded the Veteran’s claims for entitlement to service connection for left ear hearing loss and entitlement to a compensable rating for right ear hearing loss for further development. In September 2012, the case returned to the Board and the Board ordered additional development for the Veteran’s claims for entitlement to service connection for a cervical spine fusion, left ear hearing loss, and entitlement to a compensable rating for right ear hearing loss. In August 2013, the case returned to the Board and the Board denied service connection for a cervical spine disability. In addition, the Board remanded the Veteran’s claims for entitlement to service connection for left ear hearing loss and a compensable rating for right ear hearing loss for further development. In February 2014, the case returned to the Board and the Board remanded the Veteran’s claims for entitlement to service connection for left ear hearing loss and a compensable rating for right ear hearing loss for further development. In June 2015, the case returned to the Board and the Board granted service connection for left ear hearing loss and remanded the issue of a compensable rating for right ear hearing loss for further development. In June 2016, the case returned to the Board and the Board remanded the Veteran’s case in order for the RO to issue a Statement of the Case for the issues of increased ratings for a low back disability and a cervical spine disorder. The Board also requested the RO to associate records related to the Veteran’s hearing loss with the Veteran’s claims file. Lastly, the Board found that the issue of TDIU had been raised by the record and requested that the RO adjudicate this issue. In March 2017, the case returned to the Board and denied the Veteran’s claim for an increased rating for a bilateral hearing disability. The Board also found that the Veteran never perfected an appeal for the claims of increased ratings for a cervical spine disorder and a low back disorder. Lastly, the Board remanded the issue of entitlement to TDIU for further development. In August 2017, the case returned to the Board and the Board remanded the case to provide the Veteran an additional examination because he showed good cause for not attending. In December 2017, the Veteran and the Secretary of VA (parties) signed a Joint Motion for Partial Remand and agreed to vacate the portion of the March 2017 Board decision that denied a compensable rating for bilateral hearing loss. 1. Entitlement to a compensable rating for bilateral hearing loss. Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the Veteran’s claims so that he is afforded every possible consideration. In December 2017, the parties entered into a Joint Motion for Partial Remand. In that agreement, the parties agreed that the Board failed to consider whether certain symptoms that the Veteran experiences related to his bilateral hearing loss cause functional effects not contemplated by the rating criteria. Accordingly, the Board finds that an additional examination is required in order to assess all aspects of the Veteran’s hearing loss. 2. Entitlement to a total disability rating based upon individual unemployability due to service-connected disabilities (TDIU). In August 2017, the Board ordered an additional examination in order to determine the severity of the Veteran’s low back disability because the Veteran asserted that he was unable to work because of his back disability. The Board also requested the RO to obtain an opinion regarding the functional impairment resulting from his other service-connected disabilities. In September 2017, the Veteran attended an examination, but the examiner mistakenly provided an opinion regarding service connection and the examiner did not comment on the collective impact of the Veteran’s service-connected disabilities. Thus, the Board finds that there has not been substantial compliance with the previous remand orders and a remand is necessary to provide the Veteran with an additional examination to address the functional impairments resulting from his service-connected disabilities. See Stegall v. West, 11 Vet. App. 268 (1998) (holding that where the remand orders of the Board are not satisfied the Board itself errs in failing to ensure compliance). These matters are REMANDED for the following action: 1. Obtain the Veteran’s VA treatment records from October 10, 2017 to the present. 2. The Board notes that the Veteran provided incomplete information regarding his employment history and this information is critically important to the adjudication of his TDIU claim. Request that the Veteran provide additional information as to the Veteran’s employment, including identification of all previous employers and sources of current income. He should be requested to complete a VA Form 21-4192 for each identified employer. The Veteran should be advised that his failure to submit information relevant to his employment could have an adverse effect on his appeal. 3. Schedule the Veteran for an examination in order to evaluate the severity of the Veteran’s bilateral hearing loss. After a review of the claims file and an examination of the Veteran, the examiner should provide an opinion as to the severity of the Veteran’s bilateral hearing loss. The Board notes that the Veteran has stated that he experiences infections, pain, swelling, and drainage in his ears. The examiner’s opinion must include a discussion on the functional effects symptoms such as these have on the Veteran’s hearing loss. 4. Schedule the Veteran for a VA examination to determine the severity of his service-connected back disorder and also provide an opinion regarding the overall functional impairment resulting from his other service-connected disabilities. In providing all of the requested opinions, the examiner should consider the Veteran’s competent lay claims regarding the observable symptoms he has experienced. The VA examination report must include a complete rationale for all opinions expressed. If the examiner feels that any of 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). Michael J. Skaltsounis Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Rescan, Associate Cousel