Citation Nr: 21068025 Decision Date: 11/08/21 Archive Date: 11/08/21 DOCKET NO. 12-21 785 DATE: November 8, 2021 REMANDED 1. Entitlement to higher initial ratings for bilateral hearing loss, evaluated as noncompensably disabling prior to January 7, 2013, 20 percent disabling from January 7, 2013, to September 21, 2015, 30 percent disabling from September 21, 2015, to October 5, 2018, and 40 percent disabling thereafter, is remanded. 2. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities prior to October 5, 2018, is remanded. REASONS FOR REMAND The Veteran served on active duty from November 1961 to July 1968. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a rating decision issued in March 2010 by the Department of Veterans Affairs (VA) Regional Office. In January 2013, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the record. In May 2014, the Board remanded the Veteran's claim for higher initial ratings for bilateral hearing loss for additional development and, in August 2017, denied such claim. Thereafter, he appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). While such was pending, a March 2019 rating decision awarded an increased rating of 40 percent for the Veteran's bilateral hearing loss, effective October 5, 2018. However, inasmuch as higher initial ratings are available for such disability, and the Veteran is presumed to seek the maximum available benefit for a disability, the claim for higher initial ratings has remained viable on appeal. See A.B. v. Brown, 6 Vet. App. 35, 38 (1993). In April 2021, the Court granted a Joint Motion for Remand (JMR) that vacated the August 2017 Board decision. The case now returns for further appellate review. In this regard, the JMR determined that the Board erred in finding that it did not have jurisdiction over a claim for a TDIU in light of the fact that the Veteran had alleged in an August 2015 application that his bilateral hearing loss prevented him from security and following a substantially gainful occupation. However, while such matter was pending at the Court, the March 2019 rating decision awarded a TDIU as of October 5, 2018. Nonetheless, as the Veteran has contended that his bilateral hearing loss, in part, rendered him unemployable and the current initial rating claim stems from June 24, 2009, the date service connection was established for such disability, the Board has assumed jurisdiction over the issue of entitlement to a TDIU prior to October 5, 2018. Rice v. Shinseki, 22 Vet. App. 447 (2009); Harper v. Wilkie, 30 Vet. App. 345 (2018). 1. Entitlement to higher initial ratings for bilateral hearing loss, evaluated as noncompensably disabling prior to January 7, 2013, 20 percent disabling from January 7, 2013, to September 21, 2015, 30 percent disabling from September 21, 2015, to October 5, 2018, and 40 percent disabling thereafter. The aforementioned claim was most recently adjudicated by the Agency of Original Jurisdiction (AOJ) in a statement of the case issued in May 2018. However, since such time, additional evidence relevant to the evaluation of the Veteran's bilateral hearing loss has been received, to include updated VA treatment records received in October 2018 and August 2020 as well as VA audiological examinations conducted in February 2019 and September 2020. Thus, in September 2021, the Board solicited a waiver of AOJ consideration of such newly received evidence from the Veteran and his representative. In this regard, the letter informed them that, if they did not reply within 45 days, the Board would assume that they did not wish to waive AOJ consideration of the additional evidence and would remand the case for AOJ review. To date, no response has been received. Therefore, a remand is necessary in order to allow the AOJ to consider the newly received evidence in the first instance. 38 C.F.R. § 19.31(b)(1). 2. Entitlement to a TDIU prior to October 5, 2018. As noted in the Introduction, the Veteran asserts that his service-connected bilateral hearing loss, in part, has prevented him from securing and following a substantially gainful occupation. Thus, the Board finds the development and adjudication of the initial rating claim remanded herein may impact the Veteran's entitlement to a TDIU prior to October 5, 2018. See Tyrues v. Shinseki, 23 Vet. App. 166, 177 (2009) (en banc); Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). Therefore, the Veteran's claim for a TDIU prior to October 5, 2018, is inextricably intertwined with the remanded claim, and adjudication of the former issue must be deferred pending the outcome of the latter issue. The matters are REMANDED for the following action: Readjudicate the Veteran's claims based on the entirety of the evidence, to specifically include all evidence associated with the record since the issuance of the May 2018 supplemental statement of the case, which includes VA treatment records received in October 2018 and August 2020, and VA audiological examinations conducted in February 2019 and September 2020. A. JAEGER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Koria B. Stanton, 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.