Citation Nr: 21027596 Decision Date: 05/06/21 Archive Date: 05/06/21 DOCKET NO. 12-25 789 DATE: May 6, 2021 REMANDED Entitlement to an initial compensable rating for bilateral hearing loss prior to July 6, 2017, and in excess of 20 percent from July 6, 2017, and on an extraschedular basis, 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 United States Navy from April 1967 to July 1970. This matter comes to the Board of Veterans' Appeals (Board) from a March 2012 rating decision which, in pertinent part, assessed a noncompensable disability rating for bilateral hearing loss, effective May 20, 2011. In May 2013, the Veteran testified at a videoconference hearing before another Veterans Law Judge (VLJ), who is no longer with the Board. A transcript of that hearing has been associated with the claims file. In May 2015, the Board denied the Veteran's claim for an increased rating for bilateral hearing loss, and in that same decision remanded the matter of a TDIU that was found to be reasonably raised by the record consistent with Rice v. Shinseki, 22 Vet. App. 447 (2009). The Veteran, through his representative, appealed the Board's denial to the United States Court of Appeals for the Veterans Claim (Court). Subsequently, in an April 2017 Memoranda Decision, the Court vacated the Board's decision, specifically with respect to the portion that declined to refer the Veteran's bilateral hearing loss claim for extraschedular consideration, finding that the Board's reasons and bases inadequate. The matter was then remanded by the Court for further adjudication consistent with this decision. In December 2017, the Board remanded the claims of bilateral hearing loss and TDIU for further development, and subsequently for same in December 2020. These matters have now been returned to the Board for adjudication. Of note, in July 2020, the Veteran was notified that the VLJ who conducted the May 2013 Board hearing is no longer with the Board and was offered an opportunity for another hearing, which he did not accept. 1. Entitlement to an initial compensable rating for bilateral hearing loss prior to July 6, 2017, and in excess of 20 percent from July 6, 2017, and on an extraschedular basis, is remanded. Unfortunately, the Board finds that it must remand this matter once again because the Veteran and his representative's inaction is frustrating the Board's effort to adjudicate this matter in furtherance of the Court's April 2017 Memorandum Decision. The Board notes that during his December 2011 audiological examination, the Veteran reported, "I cannot hear the dispatcher on my job as a cab driver," and during another VA examination in July 2017, the Veteran also reported that his hearing is "kind of rough" and that "females are hard to hear on the phone." Yet, the Veteran has not provided the requested employment information, which may reflect how his job as a cab driver was negatively impacted; additionally, if any accommodations to account for the functional impairment stemming from his service-connected hearing loss were made by his employer. Consequently, the Board also finds that this matter, particularly consideration of an increased rating on an extraschedular basis, is intertwined with the Veteran's TDIU claim discussed below, as adjudication of both matters are heavily dependent on the nature of the Veteran's employment status, as the rating for the Veteran's bilateral hearing loss must also be considered in the determination of TDIU. 2. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities, is remanded. The Veteran was notified that he needed to provide information, including attached VA forms 21-8940 and 21-4142, with regard to his employment history in order for his TDIU claim to be adjudicated on its merits, which to date, he has not provided. See, September 2020 Subsequent Development Letter. See, February 2019 Subsequent Development Letter. Although the Veteran's representative submitted an Appellant Brief in April 2021 restating the Veteran's arguments in favor of his TDIU and increased rating claim for his bilateral hearing loss, particularly on an extraschedular basis, he did not address the outstanding unemployment history. The Veteran testified during his May 2013 Board hearing that he has been unemployed "well over a year," and his 2011 VA audiological report reflects that that even while he was employed as a cab driver in 2011, he reported that it was hard for him to hear the dispatcher. In light of above, and in view of the continuing pandemic, the Board concludes that another remand is necessary in order to provide the Veteran with a final opportunity to inform VA of his current complete occupational history, to include the names, addresses, and contact information of the Veteran's former employer(s) and the corresponding dates from May 2011. This will allow VA to conduct development necessary to determine whether such employment was marginal in nature, to include contacting the Veteran's former employers via a VA Form 21-4192, Request for Employment Information in Connection with Claim for Disability Benefits. Given these facts, the Veteran must fully cooperate with VA's requests in its effort to substantiate his appeal, as VA's duty to assist him in doing so is not a one-way street. Wood v. Derwinski, 1 Vet. App. 190 (1991). The matters are REMANDED for the following action: 1. The Agency of Jurisdiction (AOJ) must provide the Veteran the appropriate application form (VA Form 21-8940) for a claim/appeal for TDIU. The Veteran should be instructed on how to properly complete and submit the form. *In connection with the above, the Veteran is encouraged to provide VA with names, addresses, and contact information of his former employer(s) and the corresponding dates of employment since May 2011. The Veteran is hereby informed that he has a duty to cooperate in the development of his claim, and failure to do so without good cause may result in the denial of his claim. Wood v. Derwinski, 1 Vet. App. 191 (1991); 38 C.F.R. § 3.655. 2. The AOJ must contact the Veteran's employer(s) listed on the submitted VA Form 8940 and request that they complete a VA Form 21-4192, Request for Employment Information in Connection with Claim for Disability Benefits. 3. The employer(s) must also be requested to outline any accomodation(s) that the Veteran was provided in connection with the functional impairment associated with his service-connected bilateral hearing loss and/or his service-connected tinnitus disability. 4. Following this development, and any other development needed to ensure substantial compliance with this Remand, the AOJ must then adjudicate the Veteran's TDIU and increased rating bilateral hearing loss claims. Michael J. Skaltsounis Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J.B. King, 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.