Citation Nr: 20031986 Decision Date: 05/06/20 Archive Date: 05/06/20 DOCKET NO. 14-24 107A DATE: May 6, 2020 REMANDED Entitlement to an initial compensable rating for left ear hearing loss is remanded. Entitlement to a total disability rating based upon individual unemployability (TDIU) due to the Veteran’s service-connected disabilities prior to April 30, 2017 is remanded. REASONS FOR REMAND The Veteran served on active duty in the Marine Corps from May 2001 to August 2001, December 2003 to January 2005, and December 2005 to December 2008, and his decorations include the Combat Action Ribbon. The Veteran testified at a Board hearing in October 2017 with the undersigned Veterans Law Judge. 1. Entitlement to an initial compensable rating for left ear hearing loss is remanded. In April 2018, the Board denied the Veteran’s claim for a compensable rating for left ear hearing loss. In July 2019, the Court issued a Memorandum Decision in which it vacated that portion of the decision. It indicated a discussion is required as to whether the Veteran’s symptoms of dizziness, balance problems, light headedness, and aural fullness should be rated as separate disabilities. In compliance with the Court’s July 2019 memorandum decision, the Board finds an examination is necessary to identify the Veteran’s current symptoms and evaluate any manifestations that are related to his service-connected left ear hearing loss. The examiner should determine the etiology of any dizziness, balance problems, light headedness, and aural fullness and the possible relationship between such and the Veteran’s service. Here, subsequent to the Board’s April 2018 decision, the Court decided the case of Morgan v. Wilkie, 31 Vet. App. 162 (2019). Pursuant to Morgan, further development is necessary to determine whether the Veteran’s left ear hearing loss is productive of dizziness, balance problems, light headedness, and aural fullness because Morgan requires VA to exhaust all schedular alternatives before considering the possibility of an extraschedular rating. Id at 167. 2. Entitlement to TDIU due to the Veteran’s service-connected disabilities prior to April 30, 2017 is remanded. The Veteran is currently in receipt of TDIU pursuant to a November 2018 rating decision, effective April 30, 2017, which the RO determined was the Veteran’s last date of the substantially gainful employment. A December 2017 VA-Form 21-8940 indicates that the Veteran worked only part-time prior to April 2017, however. The Veteran met the schedular requirements of TDIU as of October 5, 2016. Here, since the Board’s April 2018 decision, the Court also issued decisions in Harper v. Wilkie, 30 Vet. App. 356 (2018) and Payne v. Wilkie, 31 Vet. App. 373 (2019). In light of the change in the legal landscape since the Court’s issuance of Harper in December 2018, the Board must now consider this issue. During in the October 2017 Board hearing, the Veteran cited symptoms related to his left ear hearing loss as a reason he could not work. The Court has held that in an appeal for a higher disability rating, if there is evidence of unemployability, the issue of entitlement to TDIU is raised for the entire appeal period. Thus, the issue of entitlement to a TDIU prior to April 30, 2017, is part and parcel of the appeal for the claim remanded herein is part of parcel of the rating claim on appeal. Payne v. Wilkie, 31 Vet. App. 373 (2019); see also Harper v. Wilkie, 30 Vet. App. 356 (2018). The Board finds the claim of entitlement to a TDIU prior to April 30, 2017, is inextricably intertwined with the rating claim being remanded herein. Therefore, the issue of entitlement to an effective date prior to April 30, 2017 for TDIU is also remanded. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1993) (where a claim is inextricably intertwined with another claim, the claims must be adjudicated together in order to enter a final decision on the matter). The matters are REMANDED for the following action: 1. Notify the Veteran that he may submit lay statements from himself and from other individuals who have first-hand knowledge, and/or were contemporaneously informed of the Veteran’s left ear hearing loss disability, the nature, extent and severity of these symptoms and the impact of the conditions on his ability to work prior to April 30, 2017. The Veteran should also be invited to further explain whether there is a relationship between his left ear hearing loss and his dizziness, balance problems, light headedness, and aural fullness. The Veteran should be provided a reasonable time to submit this lay evidence. 2. The Veteran should be provided an appropriate amount of time to submit this lay evidence. 3. Schedule the Veteran for a VA examination (or telehealth interview, review of the record, etc. if an in-person examination is not feasible) with an appropriate medical professional to determine if a dizziness, balance problems, light headedness, and aural fullness disorder is found to be present is a manifestation of the Veteran’s left ear hearing loss. The determination of whether an in-person examination should be left to the discretion of the examiner. Identify and clearly describe all impairment related to the Veteran’s service-connected left ear hearing loss, including any distinct dizziness, balance problems, light headedness, and aural fullness diagnosis. If no dizziness, balance problems, light headedness, and aural fullness diagnosis is identified, the examiner should explain this. STEVEN D. REISS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Booker The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.