Citation Nr: 19106909 Decision Date: 01/29/19 Archive Date: 01/29/19 DOCKET NO. 16-37 881 DATE: January 29, 2019 REMANDED Entitlement to an increased disability rating for a back disability is remanded. Entitlement to an increased disability rating for a hearing loss disability is remanded. Entitlement to a total disability rating based on individual unemployability by reason of a service-connected disability (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty from February 1970 to January 1974. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a September 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO), which, among other things, granted a ten percent rating for the Veteran’s back disability and bilateral hearing loss, effective July 27, 2012. The Veteran has raised the issue of unemployability due to his service-connected disabilities during his August 2018 Board hearing. The Court held in Rice v. Shinseki, 22 Vet. App. 447 (2009), that a claim of entitlement to a TDIU is part of an increased rating claim when such claim is raised by the record. Pursuant to Rice, the issue of entitlement to a TDIU is currently before the Board since the issue of unemployability is raised by the record. The Veteran attended a hearing before the undersigned Veterans Law Judge in August 2018 and a transcript of the hearing has been associated with the record. 1. Entitlement to an increased disability rating for a back disability is remanded. The Veteran previously attended a VA examination to determine the severity of his back disability in August 2013. However, since the Veteran’s VA examination, the Court has held “that the final sentence of 38 C.F.R. § 4.59 creates a requirement that certain range of motion testing be conducted whenever possible in cases of joint disabilities.” Correia v. McDonald, 28 Vet. App. 158 (2016). The Court also stated that in order “to be adequate, a VA examination of the joints must, wherever possible, include the results of the range of motion testing described in the final sentence of § 4.59.” Id. at 169-70. In order to comply with the Court’s ruling in Correia, a new examination should be obtained on remand that addresses the Court’s directive. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (when VA undertakes to provide a medical examination, it must ensure that the examination and opinions therein are adequate). The Board notes that the Veteran testified that the symptoms of his back disability have worsened and that he submitted a July 2018 private examination report for his back disability. The private examination report indicated that no range of motion testing was conducted due to the severity of the Veteran’s pain. As there is no medical evidence of record which complies with the Court’s directive in Correia, a remand is necessary. 2. Entitlement to an increased disability rating for a hearing loss disability is remanded. The Veteran last underwent a VA examination for his bilateral hearing loss in August 2013. The Veteran has submitted test results from a July 2018 hearing test which indicate that his hearing may have gotten worse since his last VA examination. The July 2018 hearing test is not sufficient for rating purposes as it did not include a Maryland CNC test. See 38 C.F.R. § 4.85 (2017). Given the evidence of potentially increased symptomatology of the Veteran’s service-connected hearing loss, as well as the length of time since the last VA examination, a new VA examination is warranted. See Green v. Derwinski, 1 Vet. App. 121, 124 (1991) (VA has a duty to provide the Veteran with a thorough and contemporaneous medical examination). 3. Entitlement to a TDIU is remanded. As noted in the introduction, a claim of entitlement to TDIU has been raised by the record. Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). While a claim for TDIU has been raised by the record, the Board notes that entitlement to TDIU has not been developed or adjudicated by the RO. In this regard, the RO should send the Veteran a VCAA notice letter for the TDIU claim. 38 U.S.C. § 5103 (a); 38 C.F.R. § 3.159; see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). The matters are REMANDED for the following action: 1. Schedule the Veteran for an examination of the current severity of his back disability. The examiner must test the Veteran’s active motion, passive motion, and pain with weight-bearing and without weight-bearing. The examiner must also 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 back disability alone and discuss the effect of the Veteran’s back 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). 2. Schedule the Veteran for a VA examination to determine the current severity of his service-connected bilateral hearing loss. The claims file, including a copy of this remand, must be made available to the examiner in conjunction with the examination. A notation to the effect that record review took place should be included in the examination report. All indicated studies should be performed. 3. Provide the Veteran with appropriate notice and assistance regarding the issue of entitlement to TDIU. H. SEESEL Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Boal, Associate Counsel