Citation Nr: 22017328 Decision Date: 03/24/22 Archive Date: 03/24/22 DOCKET NO. 18-33 274 DATE: March 24, 2022 REMANDED Entitlement to a disability rating in excess of 30 percent for bilateral hearing loss is remanded. Entitlement to a total disability rating based upon individual unemployability (TDIU) is remanded. REASONS FOR REMAND The Veteran, who is the appellant in this case, served on active duty from July 1942 to January 1946. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2017 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In a March 2019 rating decision, the RO continued the currently assigned 30 percent rating for bilateral hearing loss. In his June 2018 VA Form 9, the Veteran requested a hearing before the Board at a local VA office. A December 2021 VA letter indicates that the Veteran later elected a videoconference hearing, which was scheduled for February 2022. In a February 2022 Statement in Support of Claim received two days prior to the scheduled hearing, the Veteran, through his representative, stated he was unable to attend the hearing "because he is using a walker for his hip and he can't get around," and he requested that the Board adjudicate the matter based on the evidence of record. Accordingly, the Veteran's hearing request is deemed to be withdrawn. 38 C.F.R. § 20.704(d). The Board observes that additional VA treatment records and a March 2019 VA audiological examination report were added to the claims file following the April 2018 Statement of the Case (SOC), without a waiver of initial RO consideration. See Honoring America's Veterans and Caring for Camp Lejeune Families Act of 2012, Public Law No. 112-154, 126 Stat. 1165 (amending 38 U.S.C. § 7105 to provide that if new evidence is submitted with or after a substantive appeal received on or after February 2, 2013, then it is subject to initial review by the Board unless the Veteran explicitly requests agency of original jurisdiction (AOJ) consideration). Nonetheless, since the Board is remanding the claims for further development and the entire claims file is to be reviewed by the RO prior to readjudicating the claims, there is no prejudice to the Veteran. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.902(c) and 38 U.S.C. § 7107(b). 1. Entitlement to a disability rating in excess of 30 percent for bilateral hearing loss is remanded. The Veteran asserts he is entitled to a disability rating in excess of 30 percent for his bilateral hearing loss. The Board finds that remand is necessary prior to appellate review of this claim. A May 2017 VA audiology note reflects that the Veteran underwent audiological testing that was conducted by a graduate student under the supervision of an audiologist. The audiogram revealed normal hearing through 500 hertz (Hz) sloping to profound sensorineural hearing loss in both ears. Speech recognition scores were 64 percent in the right ear and 60 percent in the left ear, but it is not noted which word list was used. There is a comment at the bottom of the treatment record that states: "VALIDITY: Student-led exams are not valid for rating purposes. Test was judged to be reliable." While these results do not meet the requirements of 38 C.F.R. § 4.85(a) as testing was not conducted by an audiologist and it is unclear whether the Maryland CNC word list was used, the results could still be relevant to the question of whether there was an ascertainable increase in severity of the Veteran's hearing loss in the year prior to his June 2017 claim application. An April 2019 VA audiology consultation record shows that the Veteran underwent audiological testing which revealed moderate to profound sensorineural hearing loss in the right ear and mild to profound sensorineural hearing loss in the left ear. Speech recognition testing, seemingly using the Maryland CNC word list, revealed scores of 80 percent in the right ear and 76 percent in the left ear. The examining audiologist determined that the results showed no significant change compared to the Veteran's 2017 examination except for a slight decrease at 250 to 500 Hz, bilaterally. The Board observes that the full audiogram results from the May 2017 and April 2019 audiological tests are not in the electronic claims file available to the Board. To afford the Veteran every possible consideration, on remand, the RO should obtain those audiogram results, document all attempts to obtain the evidence, and, if the audiograms are not available, a formal finding of unavailability should be made. Furthermore, in a February 2022 Statement in Support of Claim, the Veteran, through his representative, stated that he had a hearing evaluation at the Memphis VA Medical Center about six months prior and that he needs a new hearing aid for his left ear. The most recent VA treatment records associated with the claims file are dated February 2021. Therefore, on remand, all outstanding VA treatment records should be associated with the Veteran's claims file. 2. Entitlement to a TDIU is remanded. Under Rice v. Shinseki, 22 Vet. App. 447 (2009), a request for TDIU is part and parcel of an increased rating claim when raised by the record. Here, in the August 2017 VA audiological examination report, the VA examiner opined that the Veteran's hearing loss impacted the ordinary conditions of daily life, including the ability to work. In pertinent part, the Veteran stated, "I have a problem with understanding some words in regular conversation. I have to ask people to repeat what they said often. I also work at a spirit shop, and I have difficulty understanding customers." The March 2019 VA examiner also opined that the Veteran's hearing loss impacted the ordinary conditions of daily life, including the ability to work, noting the following effects on his work activities: "He has a part time job and it's difficult for him to understand people." Additionally, in October 2019 Correspondence, the Veteran stated that his "conservative budget exceeds [his] income from 2 to 5 hundred dollars a month," which could suggest that he is earning marginal income from his current occupation. Based on the foregoing, the Board finds that the issue of unemployability has been raised by the record. On remand, the Veteran should be provided a VA Form 21-8940 (Veterans Application for Increased Compensation Based on Unemployability), for completion. Additionally, the Board finds that the issue of entitlement to a TDIU must be remanded as it is inextricably intertwined with the issue of entitlement to a disability rating in excess of 30 percent for bilateral hearing loss. See Harris v. Derwinski, 1 Vet. App. 180 (1991). Accordingly, the matters are REMANDED for the following action: 1. Send the Veteran a VA Form 21-8940, Veterans Application for Increased Compensation Based on Unemployability, for completion, with instructions to return the form to the RO. 2. Ensure that all outstanding VA treatment records are associated with the claims file. 3. Obtain the results from the VA audiograms conducted on May 16, 2017, and April 30, 2019, and associate them with the electronic claims file for the Board's review. All attempts to obtain this evidence should be documented. If the audiograms are unavailable, a formal finding of unavailability should be sent to the Veteran and his representative and a copy should be associated with the record. ** ATTENTION: The Board is NOT requesting the May 16, 2017 VA audiology note or the April 30, 2019 VA audiology consult, which have already been associated with the claims file. Rather, the Board is requesting the full results of the audiograms that were conducted on May 16, 2017 and April 30, 2019. 4. Review the evidence received since the April 2018 SOC, to include updated VA treatment records and the March 2019 VA audiological examination report. 5. Then, readjudicate the remanded claims on appeal. S. B. MAYS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. M. Gill, 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.