Citation Nr: 21067060 Decision Date: 11/03/21 Archive Date: 11/03/21 DOCKET NO. 17-09 728 DATE: November 3, 2021 REMANDED Entitlement to an initial compensable rating for a hearing loss disability is remanded. Entitlement to total disability rating based on individual unemployability (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty from September 1965 to August 1969. The claim for an increased rating for hearing loss comes to the Board of Veterans' Appeals (Board) on appeal from a December 2016 rating decision. The claim for entitlement to TDIU has been raised by the record as the Veteran is claiming he is unable to work due to his hearing loss and tinnitus, and therefore, it has been appropriately added to the cover page. See Rice v. Shinseki, 22 Vet. App. 447 (2009). In August 2021, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A copy of the transcript is associated with the evidence of record. The Veteran's appeal has been advanced on the Board's docket. See 38 U.S.C. § 7107(a); 38 C.F.R. § 20.900(c). 1. Entitlement to an initial compensable rating for a bilateral hearing loss disability The Veteran's bilateral hearing loss disability is rated as noncompensable effective September 24, 2021. He contends a 20 percent rating is warranted. See January 2017 Notice of Disagreement. The Veteran's last audiological examination to assess the current severity of his bilateral hearing loss disability was in March 2017. At his hearing before the Board, he testified that his hearing loss had worsened since then; therefore, a remand is required to afford him a more recent examination. See Snuffer v. Gober, 10 Vet. App. 400, 403 (1997) (requiring a new examination where the claimant asserts that a disability has increased in severity since the time of the last VA examination). In this regard, the Veteran testified at his hearing that during the winter months he lives in Florida; therefore, in scheduling this examination, the AOJ must first contact the Veteran and his representative to determine his preference on location for an audiological examination. Additionally, the Board notes that the record contains a private audiological evaluation dated January 2017; however, the actual audiogram numbers are not in the report. Rather, the report describes hearing acuity at various Hertz levels in generic terms, such as mild, moderately severe, and severe. Further, the report notes that speech discrimination scores were excellent, yet there is no indication as to what the actual scores were and no indication as to whether the Maryland CNC test was used. Lastly, while the examiner was an audiologist, it is unclear whether she was a state-licensed audiologist at the time of the examination. All these considerations are relevant as VA regulation requires that "[a]n examination for hearing impairment for VA purposes must be conducted by a state-licensed audiologist and must include a controlled speech discrimination test (Maryland CNC) and a puretone audiometry test." 38 C.F.R. § 4.85. The Court of Appeals for Veterans Claims (Court) has held that in certain circumstances, VA has a duty to seek clarification of a private examination report. Savage v. Shinseki, 24 Vet. App. 259 (2011). In Savage, the Court held that: [P]ursuant to 38 U.S.C. § 5103A(a), when a private examination report reasonably appears to contain information necessary to properly decide a claim but it is "unclear" or "not suitable for rating purposes," and the information reasonably contained in the report otherwise cannot be obtained, VA has a duty to either (1) ask the private examiner to clarify the report, (2) request that the claimant to obtain the necessary information to clarify the report, or (3) explain why such clarification is not needed. Any request for clarification to a private examiner or to a claimant should clearly indicate what further action needs to be taken to make the insufficient private examination report acceptable for VA consideration. Id. at 269. Based on the above, the Board finds that the AOJ must attempt clarification of the January 2017 audiological report to (1) obtain the audiometry results, (2) scores for speech discrimination testing (to include clarification regarding whether the Maryland CNC test was used), and (3) determine whether the audiologist was state-licensed at the time of the examination. The Veteran is also informed he may obtain and submit this evidence himself. 2. Entitlement to TDIU The Veteran is claiming he is unable to obtain or maintain substantially gainful employment consistent with his education and experience due to his bilateral hearing loss and tinnitus. See August 2021 Hearing Transcript. He testified that he retired full-time from teaching in 2001 and that he was a substitute teacher after that and stopped substituting approximately one and a half years prior. Given that this issue is inextricably intertwined with the issue of a compensable rating for hearing loss, it must also be remanded so both issues can be decided together. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (holding that two issues are "inextricably intertwined" when they are so closely tied together that a final Board decision cannot be rendered unless both are adjudicated). However, further development must also completed while this claim is in remand status. Initially, the Board notes that the Veteran has not completed a formal application for entitlement to TDIU. Accordingly, the AOJ must contact him and request that he complete and return one; thereafter, the AOJ should conduct any other necessary development, such as employment verification. Additionally, the record reflects that during the appeal period, the Veteran was working part-time as a substitute teacher. He stopped working in that capacity in approximately early 2019. He also reported working part-time as a youth golf instructor. The Veteran should indicate his employment and salary history on the 21-8940. Moreover, given that the Veteran is also claiming unemployability due to his tinnitus, which is not currently on appeal, the audiological examination ordered on remand must also document all functional effects/impairment he experiences due to this disability. While this case is in remand status, all outstanding VA treatment records must be obtained and associated with the evidence of record before the Board. See Bell v. Derwinski, 2 Vet. App. 611 (1992). The Veteran and his representative are informed they have the right to submit additional evidence and argument on the matters the Board has remanded. See Kutscherousky v. West, 12 Vet. App. 369 (1999). The matters are REMANDED for the following action: 1. Contact the Veteran and request that he complete a formal application for entitlement to TDIU. Thereafter, conduct any necessary development, such as employment verification. Let the Veteran know that his claim for entitlement to TDIU may be considered abandoned if he does not completely fill out and return the 21-8940. 2. Contact the Veteran and request that he provide an authorization to allow VA to attempt to obtain clarification regarding his private January 2017 audiological evaluation. If the Veteran returns an authorization which is incomplete or otherwise invalid, he must be notified of such. 3. Upon receipt of the authorization, the AOJ must attempt to obtain complete copies of the January 2017 audiology evaluation, and request the following information (1) numerical audiometry results, (2) speech discrimination testing scores (to include the type of testing used); and (3) whether the audiologist who performed the January 2017 evaluation was state-licensed. 4. Obtain all outstanding VA treatment records and associate them with the evidence of record. 5. Afford the Veteran an audiological examination to determine the current severity of his bilateral hearing loss disability and tinnitus. The examiner must obtain from the Veteran and record in the examination report a complete description regarding the functional effects/impairment the Veteran experiences due to his hearing loss and tinnitus, to include any impact on employment. Jennifer White Veterans Law Judge Board of Veterans' Appeals Attorney for the Board O'Connell, Jessica L. 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.