Citation Nr: 21041427 Decision Date: 07/09/21 Archive Date: 07/09/21 DOCKET NO. 11-30 196 DATE: July 9, 2021 REMANDED Entitlement to an initial compensable rating prior to May 3, 2013, for bilateral hearing loss and a rating in excess of 10 percent after May 3, 2013, is remanded. Entitlement to a total disability rating based upon individual unemployability due to service-connected disability (TDIU) is remanded. REASONS FOR REMAND The appellant is a Veteran who served on active duty from February 1965 to May1973. This matter comes before the Board of Veterans' Appeals (Board) by order of the United States Court of Appeals for Veterans Claims (hereinafter "the Court") in a July 2017 memorandum decision, which vacated a July 2016 Board decision and remanded the case for additional development. The issue initially arose from an August 2010 rating decision by the Waco, Texas, Regional Office (RO) of the Department of Veterans Affairs (VA). The increased rating issue on appeal was most recently remanded for additional development in February 2021. In January 2015, the Veteran testified at a personal hearing before the undersigned Veterans Law Judge. The transcript of that hearing is of record. Although testimony provided in January 2015 specifically reported that the Veteran was not raising a claim for TDIU, his statement received by VA in December 2017 requesting a 100 percent extra-schedular rating for service-connected bilateral hearing loss and tinnitus causing unemployability is more appropriately addressed as a TDIU claim. The United States Court of Appeals for Veterans Claims (Court) has held that a claim for entitlement to total disability rating based upon individual unemployability due to service-connected disability (TDIU) is a rating theory and not a separate claim for benefits. See Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). Bifurcation of a claim is generally a matter within VA discretion. Id. at 455, n. 7. The Board finds that the TDIU matter must be addressed as part of the increased rating issues on appeal and that as it involves multiple complex medical issues it is more appropriately addressed as a separate issue. The Board notes that during the course of this appeal a November 2020 rating decision established service connection for vertigo. The disability was combined with the Veteran's service-connected tinnitus disability with an assigned 10 percent rating effective from February 27, 2010. 1. Entitlement to an initial compensable rating prior to May 3, 2013, for bilateral hearing loss and a rating in excess of 10 percent after May 3, 2013, is remanded. 2. Entitlement to a TDIU is remanded. Although this case has been previously remanded, the Board finds additional development is required for adequate determinations. The July 2017 JMPR noted that a December 2015 VA examination was inadequate because the examiner made no effort to separate the functional effects of the Veteran's service-connected bilateral hearing loss from his nonservice-connected acoustic neuroma in terms that would be subject to judicial review. A subsequent December 2017 private medical opinion found the Veteran's right ear was "nonserviceable" and stated that because he also had a significant left-sided hearing loss he would have much difficulty communicating, especially in situations with background noise. A September 2018 VA medical opinion adequately addressed the functional effects of the service-connected bilateral hearing loss as separate from such effects of his nonservice-connected acoustic neuroma, but added that his functional impairments, such as social isolation or employment difficulties, were attributed to his service-connected hearing loss. No rationale for this additional opinion was provided and the Board finds it cannot be reconciled with the examiner's statement that the Veteran's audiogram dated May 18, 2010, and speech discrimination scores of 100 percent, bilaterally, represented the hearing loss incurred as a result of active service. A March 2020 VA audiology examination report included puretone threshold findings, speech discrimination scores, and a statement indicating that the Veteran's hearing loss impacted his ordinary conditions of daily life, including the ability to work. The examiner made no effort to separate the functional effects of the Veteran's service-connected bilateral hearing loss from his nonservice-connected acoustic neuroma. The Board additionally notes that the increased rating issue was remanded for additional development in December 2019 and February 2021, primarily to assist the Veteran in obtaining private treatment records pertinent to his appeal. The February 2021 remand included an instruction to obtain treatment records from UT Southwestern Medical Center prepared by Dr. J.K. a Board-Certified Otolaryngology and "[s]pecifically, the March 2020 audio examination." Although private medical records from UT Southwestern Medical Center were received on April 5, 2021, those records do not include a copy of a March 2020 private audio examination. Nor does the available record show that the Veteran and his representative were notified that a copy of the March 2020 audio examination report was not obtained. In a June 2021 brief, the Veteran's representative also asserted that a hearing test such as the one conducted by VA in March 2020 did not adequately portray the severity of his condition due to its having been conducted in the sterile quiet of an audiology booth and did not reflect the severity of his condition in the aspect of normal, daily life. In the absence of any additional information as to this matter, the Board finds it to be of no merit. The Court has upheld VA's policy of conducting audiometric testing in a sound-controlled room, which is designed to obtain the necessary information for the full and accurate application of the hearing loss rating schedule. See Martinak v. Nicholson, 21 Vet. App. 447, 454 (2007). In Doucette v. Shulkin, 28 Vet. App. 366 (2017), the Court also recognized that VA's audiometric tests are specifically designed to measure the functional effects of decreased hearing and that a Veteran's difficulty hearing or understanding speech or other sounds in various contexts was sufficiently measured during VA audiology examinations. The matters at issue in this case, however, are medically and factually complex. The Court has found that an adequate medical opinion requires an effort to separate the functional effects of the Veteran's service-connected bilateral hearing loss from his nonservice-connected acoustic neuroma in terms that would be subject to judicial review. As noted, there is a significant defect in the September 2018 VA medical opinion. No subsequent VA or non-VA medical records specifically addressed these pertinent matters. It is additionally significant to note that the issue as to employability has not been addressed subsequent to the November 2020 rating decision establishing service connection for vertigo. Although the JMPR did not identify the terms to be used to separate the functional effects, it may be reasonably construed that an examiner may extrapolate from earlier examinations or estimate any increase in puretone thresholds due solely to the service-connected bilateral hearing loss, provided that adequate rationale is included. Therefore, the Board finds that further VA efforts are required to assist the Veteran in obtaining a copy of a March 2020 private audio examination report, to allow him an opportunity to provide additional information concerning his unemployability, and for a VA medical opinion as to the functional effects attributable to the Veteran's service-connected bilateral hearing loss. The matters are REMANDED for the following action: 1. Ask the Veteran to complete a VA Form 21-4142 for VA assistance in obtaining a copy of a March 2020 audio examination report. Make two requests for the authorized records, unless it is clear after the first request that a second request would be futile. 2. Request that the Veteran provide additional employment information in support of his claims. He should be provided and requested to complete and submit an Application for Increased Compensation based on Unemployability (VA Form 21-8940). 3. Obtain an addendum medical opinion addressing the severity of the Veteran's service-connected bilateral hearing loss. The examiner should identify/describe all hearing and non-hearing loss symptoms and the findings attributable to the service-connected disability must be distinguished from any symptoms attributable solely to nonservice-connected disabilities. The examiner may extrapolate from earlier examinations or estimate any increase in puretone thresholds due solely to the service-connected bilateral hearing loss but should provide rationale for any such findings. Any finding of functional impairment, such as social isolation or employment difficulties, during the appeal period should be described in terms that separate the functional effects of the Veteran's service-connected bilateral hearing loss from his nonservice-connected acoustic neuroma. MICHAEL A. HERMAN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Douglas 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.