Citation Nr: 21073978 Decision Date: 12/13/21 Archive Date: 12/13/21 DOCKET NO. 17-22 152 DATE: December 13, 2021 REMANDED Entitlement to a compensable rating for service-connected bilateral hearing loss for the period prior to May 31, 2017, and in excess of 10 percent thereafter is remanded. Entitlement to a rating in excess of 10 percent for service-connected tinnitus associated with bilateral hearing loss 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 served on active duty from February 1969 to October 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2015 Rating Decision of the Department of Veterans Affairs (VA) Regional Office (RO). In November 2021, the Veteran testified before the undersigned Veterans Law Judge (VLJ) at a Board hearing held via videoconference. 1. Entitlement to a compensable rating for service-connected bilateral hearing loss for the period prior to May 31, 2017, and in excess of 10 percent thereafter is remanded. 2. Entitlement to a rating in excess of 10 percent for service-connected tinnitus is remanded. The Board finds that a new VA examination is warranted to assess the current severity of the Veteran's service-connected bilateral hearing loss and service-connected tinnitus, respectively. See 38 C.F.R. § 3.327(a) (providing that reexaminations will be requested whenever VA needs to determine the current severity of a disability). In a November 2021 Board Hearing, the Veteran indicated that his bilateral hearing loss and tinnitus had worsened since his last VA examination. The Veteran's last Compensation and Pension (C&P) examination was in May 2017. Considering that the Veteran's last examination occurred 4 years ago and the evidence that his disability picture may have changed, the Board finds that the current evidence of record does not adequately reveal the present state of the Veteran's service-connected bilateral hearing loss and service-connected tinnitus. See Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991) (where the record does not adequately reveal the current state of the claimant's disability, a VA examination must be conducted); see also Caffrey v. Brown, 6 Vet. App. 377, 381 (1994) (wherein the Court determined the Board should have ordered a contemporaneous examination of the Veteran because a 23-month old exam was too remote in time to adequately support the decision in an appeal for an increased rating); Palczewski v. Nicholson, 21 Vet. App. 174, 181-82 (2007), citing Caluza v. Brown, 7 Vet. App. 498, 505-06 (1998) ("Where the record does not adequately reveal the current state of the claimant's disability...the fulfillment of the statutory duty to assist requires a thorough and contemporaneous medical examination."); see also Snuffer v. Gober, 10 Vet. App. 400, 403 (1997); VAOPGCPREC 11-95 (1995). Therefore, new VA examinations assessing the current severity of the Veteran's service-connected bilateral hearing loss and service-connected tinnitus are warranted. Additionally, the Veteran testified that his hearing loss had been tested by a private audiologist about 5 years ago. On remand, efforts should be made to obtain these private medical records. 3. Entitlement to a TDIU is remanded. The Board notes that the issue of entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU) has been raised as part and parcel of the Veteran's claim for an increased rating for his bilateral hearing loss and tinnitus. See November 2021 Board Hearing. Accordingly, the Board has jurisdiction over this issue. See Rice v. Shinseki, 22 Vet. App. 447, 453 (2009). However, because a decision on the remanded issue of entitlement to a higher rating for bilateral hearing loss and tinnitus could impact a decision on the issue of entitlement to a TDIU, the issues are inextricably intertwined, a remand of the claim for a TDIU is also required. Finally, on remand the Board finds that a VA examination and opinion are warranted to address the impact of the Veteran's service-connected disabilities on his occupational functioning. The matters are REMANDED for the following action: 1. Send the Veteran VA Form 21-4142 and ask him to identify any relevant private medical treatment records, to include the hearing loss test performed by a private audiologist about 5 years ago. See November 2021 Board Hearing Transcript. 2. Send the Veteran sufficient VCAA notice as to his claim of entitlement to a TDIU. 3. Send the Veteran a formal application for TDIU (VA Form 21-8940) and request him to complete and return the form. 4. Schedule the Veteran for an examination (or telehealth interview, review of the record, etc. if an in-person examination is not feasible) by an appropriate clinician to determine the current severity of his service-connected bilateral hearing loss and service-connected tinnitus. The examiner should provide a full description of the disabilities and report all signs and symptoms necessary for evaluating the Veteran's disabilities under the rating criteria. 5. Schedule the Veteran for an appropriate VA examination (or telehealth interview, review of the record, etc. if an in-person examination is not feasible) to evaluate the issue of entitlement to a TDIU. The examiner should elicit from the Veteran his complete educational, vocational, and employment history and should note his complaints regarding the impact of his service-connected disabilities on his employment. After a full examination and review of the claims file, the examiner should identify all limitations imposed on the Veteran as a consequence of his service-connected disabilities (i.e., bilateral hearing loss and tinnitus associated with bilateral hearing loss). The examiner is asked to comment on and describe the functional impairment caused solely by the service-connected disabilities as it pertains to the Veteran's ability to function in an occupational environment. The opinion need not state whether the Veteran's disabilities prevent him from obtaining or maintaining substantially gainful employment, or whether the Veteran is capable of sedentary employment. Rather, the examiner should discuss how and to what extent the Veteran's service-connected disabilities affect his ability to perform occupational tasks. The examiner should, for instance, describe the limitations and restrictions imposed by his service-connected conditions with respect to factors such as his ability to hear, speak, communicate, and maintain energy and focus for up to eight hours per day, and in terms of whether such disabilities might require absences from work and/or breaks from work. The examiner must provide a comprehensive report including complete rationales for all opinions and conclusions reached, citing the objective medical findings leading to the conclusions. If any opinion cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge, i.e., no one could respond given medical science and the known facts, or by a deficiency in the record or the examiner, i.e., additional facts are required, or the examiner does not have the needed knowledge or training. P.M. DILORENZO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Mohammad 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.