Citation Nr: 21065894 Decision Date: 10/27/21 Archive Date: 10/27/21 DOCKET NO. 15-18 293 DATE: October 27, 2021 REMANDED Entitlement to service connection for bilateral hearing loss is remanded. Entitlement to a rating in excess of 30 percent for cluster headaches is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. REASONS FOR REMAND The Veteran had active service from May 2001 to July 2008. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2011 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). This case was previously before the Board. In a July 2020 decision, the Board denied service connection for bilateral hearing loss and denied the claim for a disability rating in excess of 30 percent for service-connected cluster headaches. The Veteran appealed that decision to the United States Court of Appeals for Veterans Claims (Court). In a June 2021 Order, the Court granted the parties' Joint Motion for Partial Remand (JMPR) of the parties, vacated the Board's July 2020 decision, and remanded the case to the Board for action consistent with the Joint Motion. As a final preliminary point, the Board notes that subsequent to the Board's July 2020 decision and the Court's June 2021 order granting the parties JMPR, the Veteran filed a VA Form 21-8940 (Application for Increased Compensation Based on Unemployability). Because the issue of entitlement to a TDIU is part and parcel of a claim for a higher rating, the Board has jurisdiction of this issue on appeal. See Rice v. Shinseki, 22 Vet. App. 447 (2009). Service Connection Bilateral Hearing Loss The Veteran maintains that his bilateral hearing loss disability is related to noise exposure during active service. In the June 2021 JMPR, the parties agreed that the Board relied upon an inadequate VA examination from October 2019 in its July 2020 decision and, accordingly, must obtain an additional examination or addendum opinion on remand. Specifically, it was found that the medical examiner from the October 2019 examination did not fully discuss reconciliation of the finding of noise exposure in service with a temporary threshold shift in auditory acuity levels with the final determination that it is not related to the claimed hearing loss disability. In addition, the parties agreed that the examiner's report was unclear as to whether the Veteran's historical range of audiometric results and medical history were considered and relied upon or if just the temporal hearing acuity levels from October 2019 were the basis for the opinion. Given such inadequacy, the Board must remand this matter to obtain a medical opinion that provides a reasoned rationale discussing these points and the etiology of the Veteran's claimed bilateral hearing loss disability. Increased Rating Cluster Headaches The Veteran avers that his service-connected cluster headaches disability warrants a higher disability rating than the presently assigned 30 percent. In the parties' JMPR before the Court, it was agreed that the Board failed to provide an adequate statement of reasons and bases for its finding that the Veteran's disability did not present with "very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability," in light of the evidence demonstrating that the Veteran has complained of sensitivity to light and sound, occasional nausea and dizziness, and difficulty getting out of bed at times requiring him to call out of work. See June 2021, JMPR (quoting July 2020, Board Decision, pg. 21). In addition to the above, the Veteran has argued that his record raises the issue of entitlement to a total disability rating based upon individual unemployability (TDIU) because recent treatment records since the time of the Board's July 2020 decision depict that he has reported being fired from his job. The Board notes that an August 2021 VA treatment record reflects such reporting but does not indicate any allegation as to the reason for termination. See August 16, 2021, VA Treatment Note. The additional VA treatment records do, however, describe more treatment and reporting of symptoms for the Veteran's cluster headache disability. To the extent that the Veteran is claiming a worsening of his condition, and in light of the fact that his most recent VA examination for the disability was conducted two years ago, the Board finds that an additional VA examination is necessary to fully adjudicate his disability. Insofar as the claim demonstrates a level of severity to raise the issue of unemployability, the Board notes that an express claim for TDIU was filed by the Veteran in September 2021, and development of that claim has been undertaken by the RO. The Board acknowledges that the basis for the express claim, as detailed in the September 2021 VA Form 21-8940, is the Veteran's degenerative joint disease of the lumbar spine. Nevertheless, based upon the Veteran's prior reporting of calling out of work due to headaches and current reporting of being fired, the Board finds that it has jurisdiction over the claim for a TDIU pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009), but defers any further adjudication of the claim until the completion of ongoing development o9f the issue by the RO. Furthermore, the Board finds that the instant claims for a remand is necessary, are inextricably intertwined with the issue of entitlement to a TDIU, and the issue must be deferred. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). The matters are REMANDED for the following action: 1. Identify and obtain any pertinent, outstanding VA and private treatment records and associate them with the claims file. 2. 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 his in-service and post-service hearing problems and the nature, extent and severity of his headaches, as well as the impact of the condition on his ability to work. The Veteran should be provided an appropriate amount of time to submit this lay evidence. 3. Afford the Veteran a VA examination regarding the nature, onset and etiology of the Veteran's bilateral hearing loss disability. Based on a review of the record, the VA examiner must provide an opinion as to whether it is at least as likely as not that the Veteran's bilateral hearing loss disability had its onset during his active service or is otherwise etiologically related to such service. The rationale should include a discussion of the Veteran's historical range of audiometric results and medical history. Specifically, the examiner must provide a reasoned explanation for finding that the in-service noise exposure and temporary threshold shift is not related to the present bilateral hearing loss disability, if in fact that is the continued conclusion drawn from a review of the record. 4. Schedule the Veteran for a VA examination (or a telehealth interview, review of the record etc., if an in-person examination is not feasible) by an appropriate clinician to assess the severity of the Veteran's service-connected cluster headache disability. The examiner is requested to review all pertinent records associated with the electronic claims file. All appropriate, studies, tests, and evaluations deemed necessary by the examiner should be performed. After a review of the claims file, the examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran's disability under the rating criteria. The examiner must attempt to elicit information regarding the severity, frequency, and duration of any symptoms. The examiner is also asked to provide a full description of the functional impact of the service-connected disability on the Veteran's ordinary activity, including on his ability to work during the period on appeal. STEVEN D. REISS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. Sutherell, Associate Counsel 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.