Citation Nr: 21006587 Decision Date: 02/04/21 Archive Date: 02/04/21 DOCKET NO. 09-49 739 DATE: February 4, 2021 REMANDED Entitlement to a compensable rating for service-connected bilateral hearing loss is remanded. Entitlement to an initial compensable rating for service-connected right fifth finger flexion deformity (“right finger disability”) is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities is remanded. REASONS FOR REMAND The Veteran served on active duty in the Army from September 2000 to March 2001, and from March 2003 to March 2004. This case comes before the Board of Veterans’ Appeals (Board) on appeal from the April 2009 and September 2015 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. In November 2012, the Veteran testified before a Veterans Law Judge (VLJ) regarding the issue of entitlement to a compensable rating for service-connected bilateral hearing loss. A transcript of the hearing is of record. The Board notes that the VLJ who conducted this hearing is no longer employed at the Board. VLJs who conduct hearings must participate in making the final determination of the claim on appeal. 38 U.S.C. § 7107(c); 38 C.F.R. § 20.707. In a May 2017 letter, the Board notified the Veteran that the VLJ was no longer employed by the Board, and informed him of the right to another hearing. This letter also informed that if the Veteran did not respond within 30 days, the Board would assume that another hearing was not desired and would proceed to adjudicate the claim on appeal. The Board notes that the Veteran did not respond to said letter within the applicable period. However, in an August 2016 Form 9 for his right finger disability, the Veteran requested a hearing regarding all his issues currently before the Board, to include his increased rating claim for bilateral hearing loss. Therefore, in December 2020, the Veteran testified before the undersigned Veterans Law Judge (VLJ) before a virtual videoconference hearing. A transcript of the hearing is of record. The matter of a compensable rating for bilateral hearing loss was previously before the Board in February 2013, August 2015, July 2016, and July 2017, where it was remanded for additional development. Additionally, the matter of an initial compensable rating for right finger disability was previously before the Board in July 2017, where it was remanded for additional development. The Board notes that there was not substantial compliance with its July 2017 remand directives as it pertains to entitlement to a compensable rating for bilateral hearing loss. See Stegall v. West, 11 Vet. App. 268, 271 (1998); D’Aries v. Peake, 22 Vet. App. 97, 105 (2008). As an initial matter, the Board notes that an inferred claim for TDIU has been raised by the record, as the Veteran indicated that he is unable to work due to his service-connected bilateral hearing loss. Therefore, as the claim for TDIU is part of the increased rating claim currently before the Board, the Board finds that the issue had been properly added as shown on the title page. See Rice v. Shinseki, 22 Vet. App. 447 (2009) (holding that a request for TDIU is not a separate claim for benefits, but is rather part of the adjudication of a claim for increased compensation). 1. Entitlement to a compensable rating for service-connected bilateral hearing loss is remanded. The Veteran contends that his bilateral hearing loss warrants a compensable rating, as his symptoms have worsened to the point where he cannot hear without hearing aids. After review of the record, the Board finds that further development of the medical evidence is needed prior to adjudication of the claim, and in accordance with VA’s duty to assist. The Board notes that the Veteran’s last examination to assess the severity of his bilateral hearing loss was in December 2017, more than 3 years ago. While the Board is not required to direct a new examination simply due to the passage of time, a new examination is appropriate when the claimant asserts that the disability in question has undergone an increase in severity since the time of the last examination. See Palczewski v. Nicholson, 21 Vet. App. 174, 181 (2007); Snuffer v. Gober, 10 Vet. App. 400, 403 (1997); see also Bolton v. Brown, 8 Vet. App. 185, 191 (1995) (VA must provide a new examination where a veteran claims the disability is worse than when originally rated and the available evidence is too old to adequately evaluate the current severity). Here, the Veteran testified during a virtual videoconference Board hearing in December 2020 that his bilateral hearing loss has worsened to the point where he cannot understand what people are saying, he must request people to repeat themselves, and he must wear hearing aids all the time. See Hearing Transcript, December 2020. Therefore, the Board finds a remand is necessary to afford the Veteran a new VA examination that adequately assesses the current severity of the Veteran’s bilateral hearing loss prior to adjudication of the claim. Additionally, as noted above, the Board remanded the Veteran’s claim in July 2017 for further development, requesting the Veteran be provided a VA medical opinion regarding the severity of his bilateral hearing loss. Within this opinion, the examiner was specifically directed to “address the findings of the March 2016 VA auditory brainstem response test results in determining the severity of the Veteran’s bilateral hearing loss disability and [address] whether the puretone auditory thresholds and speech discrimination scores of record are appropriate.” See BVA Decision, July 2017. A new VA examination was conducted in December 2017, in response to the Board’s July 2017 remand directives. Upon review, the Board notes that this examination is inadequate for adjudicative purposes, as the examiner did not provide the requested comments noted above. In fact, a review of the examination notes that the examiner merely opined that after review of the Veteran’s medical records, including the 2016 auditory brainstem response (ABR), he found that the Veteran is voluntarily offering inaccurate hearing thresholds. While this may be true, this opinion does not address the ABR as it relates to the Veteran’s current severity nor does it provide whether the auditory results of record are appropriate for VA rating purposes. Furthermore, the Board finds that clarification is needed regarding whether the December 2017 puretone auditory thresholds results are valid for rating purposes, as even though the examiner checked the box designated for “test results are valid for rating purposes” the examiner later remarked that the results are inconsistent with the Veteran’s objective measures and has poor reliability. Therefore, the Board finds that a remand is necessary to provide the Veteran addendum VA medical opinions addressing the above, prior to adjudication of the claim, and in compliance with Stegall. Accordingly, a remand is necessary to address the matters discussed above. 2. Entitlement to an initial compensable rating for service-connected right fifth finger flexion deformity (“right finger disability”) is remanded. The Veteran contends that his right finger disability warrants a compensable rating, as his symptoms have worsened. After review of the record, the Board finds that further development of the medical evidence is needed prior to adjudication of the claim, and in accordance with VA’s duty to assist. The Board notes that the Veteran’s last examination to assess the severity of his right finger disability was in August 2015, more than 5 years ago. While the Board is not required to direct a new examination simply due to the passage of time, a new examination is appropriate when the claimant asserts that the disability in question has undergone an increase in severity since the time of the last examination. See Palczewski v. Nicholson, 21 Vet. App. 174, 181 (2007); Snuffer v. Gober, 10 Vet. App. 400, 403 (1997); see also Bolton v. Brown, 8 Vet. App. 185, 191 (1995) (VA must provide a new examination where a veteran claims the disability is worse than when originally rated and the available evidence is too old to adequately evaluate the current severity). Here, the Veteran testified during a virtual videoconference Board hearing in December 2020 that his right finger disability has worsened to the point that he is unable to bend it or make a fist, and must keep it buddy-taped to prevent dislocation. See Hearing Transcript, December 2020. Therefore, the Board finds a remand is necessary to afford the Veteran a new VA examination that adequately assesses the current severity of the Veteran’s right finger disability prior to adjudication of the claim. Accordingly, a remand is necessary to address the matters discussed above. 3. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities is remanded. The Board notes that as development of the Veteran’s disability claims before the Board may have an impact on the Veteran’s TDIU claim, the Board finds these issues to be inextricably intertwined. Harris v. Derwinski, 1 Vet. App. 180 (1991). Accordingly, the Board will defer adjudication of the inextricably intertwined TDIU claim at this time. The matters are REMANDED for the following action: 1. Request the Veteran to identify all medical providers (VA and private) from whom he has received treatment for his bilateral hearing loss and right finger disability, and obtain any outstanding records and associate them with the Veteran’s claims file. 2. After associating all newly acquired records with the claims file, schedule the Veteran for a VA examination by an appropriate clinician to determine the current severity of the Veteran’s right finger disability. The claims file, including a copy of this remand, must be made available to the examiner in conjunction with the examination, and the examiner should note review of the record in the examination report. All pertinent medical complaints, symptoms, and clinical findings must be reported in detail. Following complete review of the record, the examiner must address the following: (a) The examiner must test the Veteran’s active motion, passive motion, and pain with weight-bearing and non-weight-bearing, and if possible, with range of motion measurements of the opposite undamaged joint. The examiner should report (in degrees) the point at which pain is objectively recorded. The examiner must also attempt to elicit information, based on all the evidence of record, regarding the severity, frequency, and duration of any flare-ups. To the extent possible, the examiner should identify any symptoms and functional impairments due to the Veteran’s disabilities, and report or estimate functional loss in terms of the degree of additional loss of range of motion. Please note: If the examiner cannot express functional loss in this manner without resorting to speculation, he/she must explain the basis for his/her conclusion that a non-speculative opinion cannot be offered. The examiner must provide a complete rationale for any opinion given. (b) The examiner should also provide an assessment of the effects of the Veteran’s right finger disability on his ability to perform work-like tasks and on his daily activities. (c) Any opinion should include a detailed rationale. If the examiner is unable to offer the requested opinion, it is essential that the examiner offer a rational for the conclusion that an opinion could not be provided without resorting to speculation, together with a statement as to whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. 3. Schedule the Veteran for a VA examination by an appropriate clinician, the December 2017 VA examiner if available, to determine the current severity of the Veteran’s bilateral hearing loss. The claims file, including a copy of this remand, must be made available to the examiner in conjunction with the examination, and the examiner should note review of the record in the examination report. All pertinent medical complaints, symptoms, and clinical findings must be reported in detail. Following complete review of the record, the examiner must address the following: (a) Opine as to the findings of the March 2016 VA auditory brainstem response test results as they relate to the severity of the Veteran’s bilateral hearing loss. (b) Opine as to whether the prior puretone auditory thresholds and speech discrimination scores of record (e.g. April 2008, November 2008, March 2010, February 2013, and January 2017 audiometric test results) are appropriate for rating purposes. (c) Clarify whether the December 2017 test results are valid for rating purposes given the inconsistency and poor reliability noted. (d) The examiner should also provide an assessment of the effects of the Veteran’s hearing loss disability on his ability to perform work-like tasks and on his daily activities. (e) Any opinion should include a detailed rationale. If the examiner is unable to offer the requested opinion, it is essential that the examiner offer a rational for the conclusion that an opinion could not be provided without resorting to speculation, together with a statement as to whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. 4. The RO must review the obtained examination reports and opinions and ensure that it includes all information necessary to rate the disability. 5. Request the Veteran submit a properly completed VA Form 21-8940, Veteran’s Application for Increased Compensation Based on Unemployability. DELYVONNE M. WHITEHEAD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. Hodges, 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.