Citation Nr: 21039961 Decision Date: 07/01/21 Archive Date: 07/01/21 DOCKET NO. 17-30 271 DATE: July 1, 2021 ISSUES Entitlement to an increased rating in excess of 10 percent for left ear hearing loss prior to March 30, 2021. Entitlement to an increased rating in excess of 60 percent for left ear hearing loss from March 30, 2021. Entitlement to an increased rating in excess of 10 percent for right ear hearing loss prior to March 30, 2021. Entitlement to an increased rating in excess of 60 percent for right ear hearing loss from March 30, 2021. ORDER Entitlement to an increased rating in excess of 10 percent for left ear hearing loss prior to November 15, 2018 is denied. Entitlement to an increased rating of 50 percent, but no higher, for left ear hearing loss from November 15, 2018 to March 30, 2021 is granted. Entitlement to an increased rating in excess of 60 percent for left ear hearing loss from March 30, 2021 forward is denied. Entitlement to an increased rating in excess of 10 percent for right ear hearing loss prior to November 15, 2018 is denied. Entitlement to an increased rating of 50 percent, but no higher, for right ear hearing loss from November 15, 2018 to March 30, 2021 is granted. Entitlement to an increased rating in excess of 60 percent for right ear hearing loss from March 30, 2021 forward is denied. REMANDED Entitlement to a total disability evaluation based on individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. For the period prior to November 15, 2018, the Veteran's left ear hearing impairment has been no worse than a Level III impairment. 2. For the period from November 15, 2018 to March 30, 2021, the Veteran's left ear hearing impairment has been no worse than a Level VIII impairment. 3. For the period from March 30, 2021, the Veteran's left ear hearing impairment has been no worse than a Level VII impairment. 4. For the period prior to November 15, 2018, the Veteran's right ear hearing impairment has been no worse than a Level III impairment. 5. For the period from November 15, 2018 to March 30, 2021, the Veteran's right ear hearing impairment has been no worse than a Level VIII impairment. 6. For the period from March 30, 2021, the Veteran's right ear hearing impairment has been no worse than a Level XI impairment. CONCLUSIONS OF LAW 1. Prior to November 15, 2018, the criteria for an increased evaluation in excess of 10 percent for left ear hearing loss have not been met or approximated. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.85, Diagnostic Code 6100, 4.86 (2020). 2. From November 15, 2018 to March 30, 2021, the criteria for an increased evaluation of 50 percent, but no higher, for left ear hearing loss have been met or approximated. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.85, Diagnostic Code 6100, 4.86 (2020). 3. From March 30, 2021 forward, the criteria for an increased evaluation in excess of 60 percent for left ear hearing loss have not been met or approximated. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.85, Diagnostic Code 6100, 4.86 (2020). 4. Prior to November 15, 2018, the criteria for an increased evaluation in excess of 10 percent for right ear hearing loss have not been met or approximated. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.85, Diagnostic Code 6100, 4.86 (2020). 5. From November 15, 2018 to March 30, 2021, the criteria for an increased evaluation of 50 percent, but no higher, for right ear hearing loss have been met or approximated. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.85, Diagnostic Code 6100, 4.86 (2020). 6. From March 30, 2021 forward, the criteria for an increased evaluation in excess of 60 percent for right ear hearing loss have not been met or approximated. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.85, Diagnostic Code 6100, 4.86 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Marine Corps from September 1963 to July 1967. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a December 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Fargo, North Dakota. The Board remanded the issues on appeal for additional development in January 2021. The directives having been substantially complied with, the matter again is before the Board. D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Stegall v. West, 11 Vet. App. 268 (1998). By way of background, in an April 2021 rating decision, the evaluation for the left and right hearing loss disability was increased to 60 percent disabling, effective March 30, 2021. The grant of an increased rating during the course of an appeal does not affect the pendency of that appeal. AB v. Brown, 6 Vet. App. 35 (1993). As the Veteran is presumed to be seeking the maximum allowable benefit and the maximum benefit has not yet been awarded, the claim is still in controversy and on appeal. Id. The Board notes that at a September 2020 Board hearing for a separate and unrelated issue, the Veteran and his representative waived his hearing request for this issue of increased ratings for bilateral hearing loss. Other than the waiver of his hearing request, the Veteran's appeal as to an increased rating for his bilateral hearing loss was not addressed in any way at the September 2020 Board hearing. A transcript of the hearing has been associated with the record. When a Veteran files a claim for an increased rating, he or she is presumed to be seeking the maximum benefit under any applicable theory, including TDIU. See Rice v. Shinseki, 22 Vet. App. 447, 45354 (2009). In light of this principle, entitlement to special monthly compensation (SMC) has been found to be an inferable issue anytime a veteran is requesting increased benefits. Akles v. Derwinski, 1 Vet. App. 118 (1991). The Veteran has indicated that he is retired but still works in the pastoral field; VA medical examiners have indicated his current psychiatric and hearing disabilities interfere with him working. The Board thus considers that a TDIU is inferred by the record. With regard to SMC, there is no further lay or medical evidence the Veteran is currently housebound in fact, requires aid and attendance, or that his disabilities result in loss of use of a limb, blindness or deafness. 38 U.S.C. §§ 1114(s), (l), (k); 38 C.F.R. § § 3.350(a), (b), (i). As such, the Board will not infer the issue of entitlement to SMC at this time. Veterans Claims Assistance Act of 2000 (VCAA) The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2020). The Veteran in this case has not referred to any deficiencies in either the duties to notify or assist; therefore, the Board may proceed to the merits of the claim. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015, cert. denied, U.S.C. Oct. 3, 2016) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board....to search the record and address procedural arguments when the [appellant] fails to raise them before the Board"); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to an appellant's failure to raise a duty to assist argument before the Board). The Board has reviewed all of the evidence in the Veteran's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-130 (2000). Increased Schedular Rating for Bilateral Hearing Loss Disability evaluations are determined by the application of the facts presented to VA's Schedule for Rating Disabilities (Rating Schedule) at 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. If two disability evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. All reasonable doubt as to the degree of disability will be resolved in favor of the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3. In evaluating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. § 4.1 (2013); Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary importance. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). That said, higher evaluations may be assigned for separate periods based on the facts found during the appeal period. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). This practice is known as staged ratings. Id. The determination of whether an increased disability rating is warranted is to be based on a review of the entire evidence of record and the application of all pertinent regulations. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The Board considers not only the criteria of the currently assigned diagnostic codes, but also the criteria of other potentially applicable diagnostic codes. In general, all disabilities, including those arising from a single disease entity, are rated separately, and all disability ratings are then combined in accordance with 38 C.F.R. § 4.25. However, the evaluation of the same "disability" or the same "manifestations" under various diagnoses is not allowed. See 38 C.F.R. § 4.14. A claimant may not be compensated twice for the same symptomatology as "such a result would overcompensate the claimant for the actual impairment of his [or her] earning capacity." See 38 U.S.C. § 1155 (2012); Brady v. Brown, 4 Vet. App. 203, 206 (1993). This would result in pyramiding, contrary to the provisions of 38 C.F.R. § 4.14. However, if a veteran has separate and distinct manifestations attributable to the same injury, they should be compensated under different diagnostic codes. See Esteban v. Brown, 6 Vet. App. 259 (1994); Fanning v. Brown, 4 Vet. App. 225, 230 (1993). 38 U.S.C. § 1154(a) requires that the VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim to disability benefits. Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). When analyzing lay evidence, the Board should assess the evidence and determine whether the disability claimed is of the type for which lay evidence is competent. See Davidson, 581 F.3d at 1313; Kahana v. Shinseki, 24 Vet. App. 428 (2011). If the evidence for and against a claim is in equipoise, the claim will be granted. 38 C.F.R. § 4.3. A claim will be denied only if the preponderance of the evidence is against the claim. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). Any reasonable doubt regarding the degree of disability should be resolved in favor of the claimant. 38 C.F.R. § 4.3. Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Evidence and Analysis Assignment of a disability rating for hearing loss is derived by a mechanical application of the rating schedule to the specific numeric designations assigned after audiology testing is completed. Lendenmann v. Principi, 3 Vet. App. 345 (1992). An examination for hearing impairment for VA purposes must be conducted by a state-licensed audiologist and must include a controlled speech discrimination test (Maryland CNC) and a puretone audiometry test. 38 C.F.R. § 4.85. The rating schedule establishes 11 auditory hearing acuity levels based upon average puretone thresholds and speech discrimination. See 38 C.F.R. § 4.85. "Puretone threshold average" as used in Tables VI and VIa is the sum of the puretone thresholds at 1000, 2000, 3000 and 4000 Hertz and divided by four. This average is used in all cases (including those of § 4.86) to determine a Roman numeral designation from Tables VI and VIa. 38 C.F.R. § 4.85(d). Table VI, "Numeric Designation of Hearing Impairment Based on Puretone Threshold Average and Speech Discrimination," is used to determine a Roman numeral designation (I through XI) for hearing impairment based on a combination of the percent of speech discrimination (horizontal rows) and the puretone threshold average (vertical columns). The Roman numeral designation is located at the point where the row and column intersect. 38 C.F.R. § 4.85(b). Table VIa, "Numeric Designation of Hearing Impairment Based Only on Puretone Threshold Average," is used to determine a Roman numeral designation (I through XI) for hearing impairment based only on puretone threshold average. Table VIa is used when the examiner certifies that the use of the speech discrimination test is not appropriate due to language difficulties, inconsistent speech discrimination scores, etc., or when indicated under the provisions of § 4.86. 38 C.F.R. § 4.85(c). Table VII, "Percentage Evaluations of Hearing Impairment," is used to determine the percentage evaluation by combining the Roman numeral designations for hearing impairment in each ear. The horizontal rows represent the ear having better hearing and the vertical columns represent the ear having the poorer hearing. The percentage evaluation is located at the point where the row and the column intersect. 38 C.F.R. § 4.85(e). Special provisions apply in instances of exceptional hearing loss. See 38 C.F.R. § 4.86. When the puretone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) are all 55 decibels or more, the adjudicator must determine the Roman numeral designation for hearing impairment from either Table VI or Table VIa in 38 C.F.R. § 4.85, whichever results in the higher numeral. 38 C.F.R. § 4.86(a). Also, when the puretone threshold is 30 decibels or less at 1000 Hertz, and 70 decibels or more at 2000 Hertz, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or Table VIa, whichever results in the higher numeral. That numeral will then be elevated to the next higher Roman numeral. Each ear is evaluated separately. 38 C.F.R. § 4.86(b). The Board notes the Veteran was originally granted service connection for bilateral hearing loss in a July 1997 rating decision, with a 10 percent rating effective from July 30, 1996. The Veteran did not appeal that decision. On September 8, 2015, the Veteran made a claim for an increased rating for his bilateral hearing loss. The Board thus considers the relevant period to be from that date of claim. "The relevant temporal focus for adjudicating an increased-rating claim is on the evidence concerning the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim." Hart v. Mansfield, 21 Vet. App. 505, 509 (2007) (discussing 38 U.S.C. § 5110 and 38 C.F.R. § 3.400(o)). In this case, the Veteran was provided with three audiological examinations pertinent to the appeal period. The first audiogram was provided in December 2015, and the puretone audiometry test was as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 50 50 75 80 90 LEFT 75 75 75 70 80 Based on these results, the average puretone threshold was 74 decibels for the right ear and 75 decibels for the left ear. See 38 C.F.R. § 4.85(d). Speech recognition was 84 percent in the right ear and 88 percent in the left ear, as measured by the Maryland CNC test. Applying these values to Table VI, the result is a Level III Roman numeral designation for the right ear and a Level III for the left ear. As to functional impairment, the Veteran reported difficulty hearing with the effect of poor social interactions, to include listening to his television and carrying on conversations with people around him. The Veteran received a private audiogram in November 2018, uploaded to the claims file in March 2019. HERTZ 500 1000 2000 3000 4000 RIGHT 40 50 65 80 90 LEFT 75 80 80 80 90 Based on these results, the average puretone threshold was 71 decibels for the right ear and 83 decibels for the left ear. See 38 C.F.R. § 4.85(d). Speech recognition was 56 percent in the right ear and 60 percent in the left ear, as measured by the Maryland CNC test. Applying these values to Table VI, the result is a Level VIII Roman numeral designation for the right ear and a Level VIII for the left ear. As to functional impairment, the Veteran reported difficulty hearing with the effect of poor social interactions, and feeling isolated while with other people because he was unable to hear them without hearing aid assistance. The Veteran received another VA audiogram in March 2021. HERTZ 500 1000 2000 3000 4000 RIGHT 55 55 75 85 90 LEFT 95 95 95 105 95 Based on these results, the average puretone threshold was 77 decibels for the right ear and 98 decibels for the left ear. See 38 C.F.R. § 4.85(d). Speech recognition was 65 percent in the right ear and 22 percent in the left ear, as measured by the Maryland CNC test. Applying these values to Table VI, the result is a Level VII Roman numeral designation for the right ear and a Level XI for the left ear. As to functional impairment, the Veteran reported struggling to communicate and requires lip reading. This examiner noted the Veteran has been recommended for a cochlear implant. Here, the three valid audiograms of the appeal define three different staged ratings for the Veteran's bilateral hearing loss. See Hart, 21 Vet. App. 505. For the initial stage, the Board finds that for the period prior to November 15, 2018, the worst case audiological testing of record, which is the VA examination of December 2015, reflects that the Veteran has a Level III hearing impairment in the right ear and a Level III hearing impairment in the left ear. When the Level III and Level V designations are mechanically applied to Table VII, the result is a 10 percent rating. 38 C.F.R. § 4.85; Lendenmann, 3 Vet. App. at 345. None of the results reported in the Veteran's claims file meet the requirements for evaluation based on an exceptional pattern of impairment in this period. 38 C.F.R. § 4.86(a)(b). For the period from November 15, 2018 to March 30, 2021, the Board finds that the worst case audiological testing of record, which is the private audiological examination of November 15, 2018, reflects that the Veteran has a Level VIII hearing impairment in the right ear and a Level VIII hearing impairment in the left ear. When the Level VIII and Level VIII designations are mechanically applied to Table VII, the result is a 50 percent rating. 38 C.F.R. § 4.85; Lendenmann, 3 Vet. App. at 345. None of the results reported in the Veteran's claims file meet the requirements for evaluation based on an exceptional pattern of impairment in this period. 38 C.F.R. § 4.86(a)(b). For the period from March 30, 2021 forward, the worst case audiological testing of record, which is the VA examination of March 2021, reflects that the Veteran has a Level VII hearing impairment in the right ear and a Level XI hearing impairment in the left ear. When the Level VII and Level XI designations are mechanically applied to Table VII, the result is a 60 percent rating. 38 C.F.R. § 4.85; Lendenmann, 3 Vet. App. at 345. None of the results reported in the Veteran's claims file meet the requirements for evaluation based on an exceptional pattern of impairment in this period. 38 C.F.R. § 4.86(a)(b). As noted previously, in addition to objective test results, the functional effects of a hearing disability must be discussed for an audiological examination report to be adequate. Martinak, 21 Vet. App. at 455. The VA examiners noted the Veteran reported difficulty hearing and the resulting effect of poor social interactions, and the most recent VA examiner recommended a cochlear implant for the Veteran based on the severity of his hearing loss. Thus, the functional impact of the Veteran's hearing loss was considered by the VA examiners. No other medical evidence concerning the Veteran's bilateral hearing loss, specifically valid audiograms, is of record for the period on appeal. The Board has considered the Veteran's lay statements, in which he contends difficulty hearing generally, and difficulty understanding speech during conversations. Further, as was indicated above, rating a hearing loss disability involves the mechanical application of rating criteria to the results of specified audiometric studies. Here, the objective medical evidence of record for the period on appeal consists of the two VA audiological examinations and one private audiological examination, which indicates that the Veteran's bilateral hearing loss is at a rating of 10 percent prior to November 15, 2018, at a rating of 50 percent from November 15, 2018 to March 30, 2021, and at a rating of 60 percent for the period from March 30, 2021 forward. See 38 C.F.R. § 4.85. The Board has considered the effective dates of increase in light of Swain v. McDonald, 27 Vet. App. 219 (2015). Under 38 C.F.R. § 3.400(o)(2), an increase in disability compensation is assigned from the "[e]arliest 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." In Swain, the CAVC held assigning the effective date of an increased rating is not a mechanical exercise of applying the date of the VA examination that warranted the increase. Id. at 223-24. Rather, the Board must review all relevant evidence of record to determine when the increase in the disability can be ascertained. Id. The Board finds the assignment of November 15, 2018 and March 30, 2021 as the effective dates of the increased evaluations, based on the date the increases became factually ascertainable, is consistent with the guidance of Swain. All potentially applicable codes have been considered, and there is no basis to assign an evaluation in excess of the currently assigned rating for the period on appeal for the Veteran's bilateral hearing loss. See Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991). Staged ratings are not warranted beyond that discussed, as the Veteran has had a stable level of symptomatology throughout each appeal period. Any increases in severity beyond the staged ratings created in this Board decision were not sufficient for a higher rating for the reasons discussed above. See Hart, 21 Vet. App. 505. All evidence has been considered and there is no doubt to be resolved. See 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). REASONS FOR REMAND It is the established policy of the Department of Veterans Affairs that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. 38 C.F.R. § 4.16(b). A total disability exists where there is any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340. "A claim for TDIU is based on an acknowledgment that even though a rating less than 100 percent under the rating schedule may be correct, objectively, there are subjective factors that may permit assigning a 100 percent rating to a particular veteran under particular facts, notwithstanding the putative correctness of the objective rating." Parker v. Brown, 7 Vet. App. 116, 118 (1994). When the Board has jurisdiction over a claim for an increased rating, the Board must consider whether entitlement to a TDIU is raised by the record, regardless of whether the Veteran has specifically pled it. As noted in the introduction of this Board decision and remand, the Board finds that a claim for TDIU is inferred by the record. See Rice v. Shinseki, 22 Vet. App. 447, 45354 (2009). Service connection has been established for PTSD, evaluated as 70 percent disabling from February 23, 2018; bilateral hearing loss, evaluated as 60 percent disabling from March 30, 2021, and tinnitus, evaluated at 10 percent from July 30, 1996. The Veteran's overall combined rating, when including the bilateral factor, is 80 percent from February 23, 2018, and now 90 percent from March 30, 2021. Thus, the Veteran does meet the minimum schedular requirements for a TDIU under 38 C.F.R. § 4.16 (a). To establish a total disability rating based on individual unemployability, there must be impairment so severe that it is impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340. In reaching such a determination, the central inquiry is whether the claimant's service-connected disabilities alone are of sufficient severity to produce unemployability. Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). Total disability will be considered to exist when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation; provided that permanent total disability shall be taken to exist when the impairment is reasonably certain to continue throughout the life of the disabled person. 38 C.F.R. § 4.15. For a Veteran to prevail on a claim for a total compensation rating based on individual unemployability, the record must reflect some factor, which takes this case outside the norm. The sole fact that a Veteran is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is recognition that the impairment makes it difficult to obtain or keep employment, but the ultimate question is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether the Veteran can find employment. Van Hoose v. Brown, 4 Vet. App. 361 (1993). Entitlement to a total disability evaluation based on individual unemployability (TDIU) is remanded. Here, the Board notes TDIU is an inferred claim pursuant to Rice v. Shinseki, 22 Vet. App. 447, 45354 (2009). The Veteran has not worked since 2007, and recent VA medical evidence indicates that the Veteran's psychiatric and hearing service-connected disabilities interfere with his part-time work in the pastoral field. The Board also notes that the Veteran does currently meet the VA schedular threshold for TDIU, and finds that the Veteran's inferred claim for TDIU should be referred for further development pursuant to 38 C.F.R. § 4.16. The matters are REMANDED for the following action: 1. Contact the Veteran and supply him with a VA Form 21-8940 regarding his unemployability, and seek any other information deemed necessary to develop this inferred TDIU claim. 2. Thereafter, adjudicate the TDIU on appeal. If the determination is unfavorable to the Veteran, he and his representative should be furnished a supplemental statement of the case which addresses all evidence associated with the claims file since the last statement of the case. The Veteran and his representative should be afforded the applicable time period in which to respond. MICHAEL A. PAPPAS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Setter, 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.