Citation Nr: 21075625 Decision Date: 12/21/21 Archive Date: 12/21/21 DOCKET NO. 18-24 986 DATE: December 21, 2021 ISSUES 1. Entitlement to an initial compensable rating for a bilateral hearing loss disability. 2. Entitlement to a total disability rating based on individual unemployability (TDIU). REMANDED 1. Entitlement to an initial compensable rating for a bilateral hearing loss disability is remanded. 2. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. REASONS FOR REMAND The Veteran served in the Army from October 1967 to October 1969. This case comes before the Board of Veterans' Appeals (the Board) from a July 2017 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran and his wife, M.M.R., testified at a hearing before the undersigned Veterans Law Judge (VLJ) in September 2021. A transcript of that proceeding has been associated with the claims file. The Board notes that in the July 2017 rating decision the AOJ denied the Veteran's claim for entitlement to a TDIU. As such, the AOJ has essentially developed and adjudicated the Veteran's TDIU claim as a traditional TDIU. Construing the Veteran's NOD in the light most favorable to the Veteran, the Board finds that the Veteran's claim for entitlement to a TDIU was included in the February 2018 NOD and attached correspondence. While the Board acknowledges that a later July 2019 correspondence requested the withdrawal of his appeal of his claim for entitlement to a TDIU, at the September 2021 hearing the Veteran asserted unemployability as a result of his bilateral hearing loss disability. The Veteran's TDIU claim thus includes a form of TDIU claim known as a Rice TDIU, because it was raised during the administrative appeal of the Veteran's claim for increased ratings for particular service-connected disabilities and it is, therefore, a component of that claim for benefits related solely to those disabilities. See Rice v. Shinseki, 22 Vet. App. 447, 454-455 (2009). A claim for TDIU, either expressly raised by the Veteran or reasonably raised by the record, involves an attempt to obtain an appropriate rating for a disability and is part of the claim for an increased rating. Rice v. Shinseki, 22 Vet. App. 447 (2009). In light of the above-discussed procedural history, the Veteran's Rice TDIU was a part of the Veteran's appeal for higher compensation for his hearing loss disability, and the Rice TDIU remains in appellate status before the Board at this time. 1. Entitlement to an initial compensable rating for a bilateral hearing loss disability is remanded. At the September 2021 hearing, the Veteran testified that his hearing has worsened since his last VA examination in July 2017. At the September 2021 hearing the Veteran's wife also testified that as to his hearing loss symptoms and their worsening. The Board notes that the Veteran and his wife are competent to report their observations and experiences of symptoms. Layno v. Brown, 6 Vet. App. 465, 469 (1994). The Veteran has submitted a private audiogram contemporaneous with the hearing, however, such examination does not contain all of the results necessary for the VA to appropriately rate the Veteran's bilateral hearing loss disability. Specifically, the Maryland CNC Speech Discrimination Test results are not present. Disability ratings for hearing loss are derived by a mechanical application of the rating schedule to the numeric designations assigned after audiometric evaluations are performed. See Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). Hearing loss disability evaluations range from noncompensable to 100 percent based on organic impairment of hearing acuity, as measured by controlled speech discrimination tests in conjunction with the average hearing threshold, as measured by pure tone audiometric test in the frequencies 1,000, 2,000, 3,000, and 4,000 cycles per second. The rating schedule establishes 11 auditory acuity levels designated from Level I for essentially normal hearing acuity, through Level XI for profound deafness. VA audiometric examinations are conducted using a controlled speech discrimination test together with the results of a pure tone audiometric test. As there is evidence of worsening since the VA last examination and the most recent private examination is not complete for rating purposes, the Board finds that a remand is necessary to obtain a VA examination which assesses the current severity of the Veteran's bilateral hearing loss disability. See Caffrey v. Brown, 6 Vet. App. 377, 381 (1994), see also Snuffer v. Gober, 10 Vet. App. 400, 403 (1997) (holding that a Veteran is entitled to a new examination after a two-year period between the last VA examination and the Veteran's contention that the pertinent disability had increased in severity); VAOPGCPREC 11-95 (1995); see also 38 C.F.R. § 3.327 (a reexamination will be requested whenever there is a need to verify the current severity of a disability). 2. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. At the September 2021 Board hearing, the Veteran and his wife testified as to his unemployability as a result of his hearing loss disability. Specifically, the Veteran and his wife testified that it is difficult to hear others and that he gets frustrated and startled as a result of his inability to hear. The Veteran noted that his other service-connected disabilities also impact his unemployability, but explained the specific impact of his bilateral hearing loss on his ability to work. As such, the claim of entitlement to a TDIU is inextricably intertwined with the claim of entitlement to a compensable rating of his bilateral hearing loss disability. The record indicates that the Veteran was previously employed as a truck driver, with employment ending in November 2011. The Veteran has met the schedular criteria for eligibility for a TDIU since June 2016. At present, his total evaluation prior to June 2016 does not meet the criteria for a schedular TDIU. See 38 C.F.R. § 4.16 (a). After the Veteran's bilateral hearing loss has been reevaluated, the agency of original jurisdiction should consider whether entitlement to a TDIU is warranted, including, if appropriate, referral for an extraschedular TDIU, for any part of the period on appeal. See 38 C.F.R. § 4.16 (b); Bowling v. Principi, 15 Vet. App. 1, 10 (2001). The matters are REMANDED for the following action: 1. Obtain any and all outstanding VA treatment records and/or private treatment records. Should they exist, associate such records with the Veteran's electronic claims file. 2. Thereafter, schedule the Veteran for an audiometric examination by an appropriate clinician to determine the nature and current degree of severity of the Veteran's service-connected bilateral hearing loss disability. The audiometric testing results from the examination should be associated with the claims file. To the extent possible, the examiner should identify any symptoms and functional impairments due to bilateral hearing loss disability alone and discuss the effect of the Veteran's disability on any occupational functioning and activities of daily living. A complete rationale should be provided for all opinions expressed. 3. Following readjudication of the claims, if entitlement to a TDIU has not been granted for the entire period on appeal, and if it is found to be warranted by the medical evidence, consider referring the issue of entitlement to an extraschedular TDIU prior to June 2, 2016 to the Director of the Compensation Service for consideration under 38 C.F.R. § 4.16 (b). In so doing, the Director must provide an adequate statement of reasons and bases for its determination so as to permit review by the Board. The Director should analyze the probative value of the evidence, and account for evidence it finds persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claim which would favor the assignment of an extraschedular rating. 4. After completing the above, and any other necessary development, the claims remaining on appeal must be readjudicated in light of all pertinent evidence and legal authority. If any benefits sought are not granted, issue the Veteran and his representative an appropriate supplemental statement of the case (SSOC). Michael A. Pappas Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Tunis, 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.