Citation Nr: 22018990 Decision Date: 03/31/22 Archive Date: 03/31/22 DOCKET NO. 18-35 725 DATE: March 31, 2022 REMANDED Entitlement to an initial increased rating in excess of 20 percent prior to February 11, 2020, in excess of 30 percent since February 11, 2020, and in excess of 50 percent since November 23, 2020, for bilateral hearing loss is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) for the period from January 11, 2011 to November 1, 2020, is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Air Force from August 1983 to November 1985. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2018 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). In June 2019, the Veteran appealed the Board's prior denial of entitlement to service connection for a psychiatric disorder, and in April 2020, the Court of Appeals for Veteran's Claims granted a Joint Motion for Remand (JMR), returning the issue to the Board. In June 2021, the Board remanded the issue of entitlement to higher ratings for hearing loss and service connection for a psychiatric disorder. The RO then granted service connection for major depressive disorder recurrent episode, mild with anxious distress, at a rating of 30 percent disabling, effective April 26, 2017, in an October 2021 rating decision. Thus, having been granted the full benefit sought on appeal, there remains no issue of service connection for an acquired psychiatric disorder before the Board. Finally, in the June 2021 remand, the Board noted that in February 2020, the RO issued a Statement of the Case (SOC) denying an initial increased rating in excess of 20 percent prior to February 11, 2020, and in excess of 30 percent since February 11, 2020, for bilateral hearing loss. Subsequently, then starting in April 2020, the AOJ added relevant VA medical center (VAMC) treatment records as well a VA hearing loss and tinnitus examination conducted on November 23, 2020. However, while the RO did not issue a Supplemental Statement of the Case (SSOC), the RO instead placed an increase in the Veteran's rating from 30 percent to 50 percent, effective November 2, 2020, in a January 2021 rating decision codesheet. In this regard, in the June 2021 remand, the Board noted that under 38C.F.R. §20.1305(c), any pertinent evidence that is submitted to the Board, including evidence obtained and added to the file by VA, must be referred to VA for initial review unless this right is waived by the appellant or representative in writing or on the record during a hearing. Although a waiver request was provided to the Veteran and copied to his attorney in March 2021, no response was received. The Board also directed the RO to obtain any outstanding treatment records. Hence, the Board remanded the matter to ensure the RO reviews such evidence, clarify the disability rating and then issue a SSOC. Here, the Board has reviewed the claims file to ensure the RO's compliance with the June 2021 Board remand. First the Board notes that a subsequent development letter was provided to the Veteran in July 2021 and in an August 2021 statement, the Veteran indicated that he has only received treatment at noted VAMC's. In an October 2021 rating decision, the RO noted review of evidence, including such evidence received in April 2021, and adjudicated the issue of entitlement to an increased rating for bilateral hearing loss. In this decision, the RO noted that the January 27, 2021 rating decision awarded increased ratings for several disabilities effective November 2, 2020, but the rating decision did not address an increased rating for bilateral hearing loss. The RO noted that the associated codesheet showed that the Veteran's bilateral hearing was increased which was a clerical error as a formal decision was not made to award and increased evaluation. The RO then noted that this action did not impact the Veteran's overall combined evaluation as the implementation of the other disabilities increased his combined evaluation to 100 percent. The RO then stated that they have now made a decision based on new evidence for the instant issue. The RO awarded a 50 percent increased rating for bilateral hearing loss since November 23, 2020, the date of the VA examination showing an increase in disability. The RO then issued a SSOC in October 2021, noting review of the new evidence and denying an initial increased rating in excess of 20 percent prior to February 11, 2020, in excess of 30 percent since February 11, 2020 and in excess of 50 percent since November 23, 2020. Increased Rating for Hearing Loss The objective medical evidence of record consists of VA hearing loss and tinnitus examinations of April 2011, February 2020 and last in November 2020. Further, a private December 2019 audiometric evaluation is also of record. Here, the Board notes that 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. A review of that December 2019 audiometric evaluation reflects that it is signed by an audiologist. The audiologist noted that the Veteran would not tolerate masking for Maryland CNC word discrimination but also noted that the Veteran's WR's using the Maryland CNC recorded words lists 3 and 6 revealed very poor word understanding at 44 percent in the left ear and 22 percent in the right ear but that the Veteran could not tolerate masking during CNC. Hence, the examination reveals that the Maryland CNC word discrimination test was conducted, but the Board is unsure if the test was completed. The Veteran's pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 Avg CNC RIGHT 80 80 85 90 75.00 ?% LEFT 70 80 80 85 77.00 ?% The Board finds that remand is warranted to attempt to clarify whether the private audiologist reported the Veteran's Maryland CNC word list as 22 and 44 percent, respectively, in the left and right ear, or was the audiologists' report that the Veteran could not tolerate masking during CNC and the examination was thus incomplete. TDIU The Veteran submitted a claim of entitlement to a total disability rating based on individual unemployability (TDIU) based on all service-connected disabilities on November 2, 2020. The Veteran was subsequently granted a 100 percent combined disability evaluation rating, effective November 2, 2020, by way of a January 2021 rating decision of which the RO held the issue of individual unemployability moot. The Board notes that a grant of a 100 percent schedular rating does not necessarily render the issue of entitlement to a TDIU moot, as the TDIU could in certain circumstances render the Veteran eligible for special monthly compensation (SMC). See Bradley v. Peake, 22 Vet. App. 280 (2008). In this case, however, the Veteran has asserted that a TDIU is warranted based on the combined impact of all of his service-connected disabilities, and therefore the scenario contemplated in Bradley does not apply. The current period on appeal does, however, extend back to January 11, 2011. The issue of whether a TDIU can be assigned for any part of the period from January 11, 2011 to November 1, 2020, must therefore be considered. The matter is REMANDED for the following action: 1. Obtain any outstanding VA treatment records and private treatment records; notably attempt to obtain authorization to release of information for the Holzer, ENT Urology, Medicare December 2, 2019 private audiometric evaluation. 2. Make all appropriate efforts to clarify whether the private audiologist that conducted the December 2019 audiometric evaluation used the Maryland CNC word list for the Veteran's December 2019 word recognition test and whether the audiologist reported that the Veteran's Maryland CNC word list was 22 and 44 percent, respectively, in the left and right ear, or was the audiologists' report that the Veteran could not tolerate masking during CNC and the examination was thus incomplete. All efforts made by the RO should be documented in the claims file. 3. After the above development is complete, and in the event that the December 2019 private audiologist confirms that she reported a complete Maryland CNC word discrimination test of 22 and 44 percent, respectively, in the left and right ear, readjudicate the issue on appeal using the December 2019 private audiometric evaluation and issue an SSOC as appropriate. 4. After performing any indicated development for the Veteran's claim of entitlement to a TDIU, adjudicate the issue of whether a TDIU can be assigned for any part of the period from January 11, 2011 to November 1, 2020. Mary E. Rude Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Q. Alli, 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.