Citation Nr: 21071412 Decision Date: 11/30/21 Archive Date: 11/30/21 DOCKET NO. 19-00 584A DATE: November 30, 2021 ORDER Entitlement to rating of 10 percent for bilateral hearing loss beginning April 16, 2015 is granted. REMANDED Entitlement to a rating in excess of 10 percent for bilateral hearing loss is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. FINDING OF FACT It is factually ascertainable that an increase in the Veteran's bilateral hearing loss occurred on April 16, 2015. CONCLUSION OF LAW The criteria for entitlement to rating of 10 percent for bilateral hearing loss beginning April 16, 2015 have been met. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from June 1966 to May 1968 with service in the Republic of Vietnam. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2015 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran presented sworn testimony at a hearing before the undersigned Veterans Law Judge in November 2021. Where a claimant, or the record, raises the question of unemployability due to the disability for which an increased rating is sought, then part of the increased rating claim is an implied claim for TDIU. See Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). The Board takes jurisdiction of the issue of entitlement to a TDIU because it is part and parcel to the increased rating claim on appeal. Rice, 22 Vet. App. 447. 1. Entitlement to rating of 10 percent for bilateral hearing loss beginning April 16, 2015. The Veteran's hearing loss disability was assigned a 10 percent rating, beginning June 22, 2015, the date of examination. The effective date of a claim for increase is the earliest date as of which it is factually ascertainable based on all evidence of record that an increase in disability had occurred if a complete claim or intent to file a claim is received within 1 year from such date, otherwise, date of receipt of claim. 38 C.F.R. § 3.3400(o). VA received the Veteran's Intent to File a Claim form on April 16, 2015. On April 20, 2015, VA received the Veteran's Fully Developed Claim for hearing loss. With the benefit of the doubt doctrine in mind, the Board finds that an award of 10 percent from the date of April 16, 2015 is warranted as this represents the first factually ascertainable increase in the Veteran's disability given the Veteran's Intent to File a Claim form received on that date. As held by the Court in Swain v. McDonald, 27 Vet. App. 219, 224 (2015), the effective date is governed by when the increase is factually ascertainable, not by when proper testing for rating purposes is actually conducted. In other words, a delay in obtaining a rating-compliant examination following evidence of worsening should not lead to the Veteran being denied a higher rating. Thus, entitlement to a 10 percent rating for bilateral hearing loss beginning April 16, 2015 is warranted. REASONS FOR REMAND 1. Entitlement to a rating in excess of 10 percent for bilateral hearing loss is remanded. During the November 2021 Board hearing, the Veteran testified that his hearing loss is getting worse. Given the Veteran's testimony, the Board finds that a remand is necessary to afford the Veteran a new VA examination to determine the current severity of his service-connected disability. See Snuffer v. Gober, 10 Vet. App. 400 (1997). 2. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. On his TDIU application, the Veteran reported that he last worked full-time on October 1, 2008. See VA Form 21-8940, November 2021. The Veteran also reported that he worked in delivery 15 hours per week from June 2016 to November 2021. The Board finds remand necessary as the claim of TDIU is inextricably intertwined with the Veteran's claim of entitlement to a higher rating for his service-connected hearing loss disability. Further, the record indicates that the Veteran's service-connected PTSD may prevent him from securing or following any substantially gainful occupation. See Hearing testimony, November 2021. As the most recent VA psychiatric examination of record was conducted in May 2015, the Board finds remand necessary to obtain a new psychiatric examination. The matters are REMANDED for the following action: 1. 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 audiologist to determine the current nature and severity of his service-connected bilateral hearing loss. All necessary tests should be performed. The examiner must review the entire record and consider all pertinent medical and lay evidence. All pertinent symptomatology and findings must be reported in detail. 2. Schedule the Veteran for a VA examination (or telehealth interview, review of the record, etc. if an in-person examination is not feasible) to determine the current nature, severity, and extent of his psychiatric disability. STEVEN D. REISS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Sara Leigh, Attorney Advisor 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.