Citation Nr: 21064752 Decision Date: 10/21/21 Archive Date: 10/21/21 DOCKET NO. 15-25 005 DATE: October 21, 2021 REMANDED Entitlement to an initial compensable rating for bilateral hearing loss prior to October 14, 2019, and a rating in excess of 20 percent thereafter is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty from January 1963 to January 1970. This matter is on appeal from a May 2014 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In this rating decision, the RO granted service connection for bilateral hearing loss with an evaluation of 0 percent, effective October 15, 2013. In February 2019, the Board remanded the claim of entitlement to an initial compensable rating for bilateral hearing loss. In May 2020, the RO increased the disability rating assigned to the bilateral hearing loss claim from 0 percent to 20 percent, effective October 14, 2019. In August 2020, the Board denied the claim of entitlement to an initial compensable rating for bilateral hearing loss prior to October 14, 2019 and a rating in excess of 20 percent thereafter. The Veteran then timely appealed the denial decision to the United States Court of Appeals for Veterans Claims (Court). In an Order dated June 2021, the Court granted the parties' May 2021 Joint Motion for Remand (JMR) to vacate the Board's August 2020 decision and remand the case for readjudication in accordance with the terms of the JMR. 1. Entitlement to an initial compensable rating for bilateral hearing loss prior to October 14, 2019, and a rating in excess of 20 percent thereafter is remanded. In the May 2021 JMR, the Court noted that the Board erred by failing to obtain outstanding private treatment records from the Veteran's private audiologist and by providing an inconsistent finding in its denial decision. The Board finds that remand is necessary consistent with the May 2021 JMR. Specifically, as noted in the May 2021 JMR, VA has not sought to obtain the private treatment records of Dr. K. Hetterich. As these records are pertinent to the Veteran's claim, remand is warranted to satisfy VA's duty to assist. While on remand, the AOJ should attempt to retrieve all of the Veteran's outstanding VA treatment records and private treatment records related to his service-connected bilateral hearing loss disability. 2. Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU) is remanded. In June 2021 Correspondence, the Veteran asserted that the Board did not address whether the functional impact of his hearing loss may have precluded the ability to sustain substantially gainful employment to the extent that referral for extra-schedular consideration for TDIU is warranted. More specifically, the Veteran stated that the Board erred by failing to consider whether a referral for extra-schedular consideration was warranted based on the fact that the Veteran's hearing loss "impacted his ordinary conditions of daily life, including his ability to work" as noted in the October 2019 Hearing Loss and Tinnitus DBQ. Based on this evidence, the Board finds that the issue of TDIU has been reasonably raised by the record as part of the Veteran's claim for an increased rating for his bilateral hearing loss. Here, the TDIU claim is part and parcel of the increased rating claim of the bilateral hearing loss claim on appeal. Rice v. Shinseki, 22 Vet. App. 447 (2009). Given that additional development is required as to the Veteran's claim for an increased disability rating for his service-connected bilateral hearing loss, the Board finds that a decision on the issue of entitlement to TDIU must be deferred to allow the RO the opportunity to evaluate the Veteran's disability on appeal. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991); see also Tyrues v. Shinseki, 23 Vet. App. 166, 177 (2009) (en banc). The matters are REMANDED for the following action: 1. Obtain any outstanding pertinent VA treatment records and associate them with the claims file, to include VA audiology records dated in 2016. 2. Then, the AOJ should undertake appropriate development to obtain any outstanding private treatment records related to the Veteran's bilateral hearing loss, to specifically include those from Dr. K. Hetterich. The Veteran's assistance should be requested as needed. All obtained records should be associated with the evidentiary record. If the AOJ cannot obtain records identified by the Veteran, a notation to that effect should be inserted in the file. The Veteran is to be notified of unsuccessful efforts in this regard to allow him the opportunity to obtain and submit those records for VA review. 3. Send the Veteran a VA Form 21-8940 (Veteran's Application for Increased Compensation Based on Unemployability) to obtain an employment history covering the entirety of the appeal period as well as the Veteran's educational history. Request any additional information necessary to verify the Veteran's employment history. 4. Then, readjudicate the issues on appeal, to include the Veteran's claim for a TDIU. If the benefits sought on appeal are denied, in whole or in part, provide the Veteran and his representative with a Supplemental Statement of the Case, and allow an appropriate period of time for a response. Thereafter, the claims folder should be returned to the Board for further appellate review, if otherwise in order. GAYLE STROMMEN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Hanson 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.