Citation Nr: 1326346 Decision Date: 08/19/13 Archive Date: 08/26/13 DOCKET NO. 06-35 317 ) DATE ) ) On appeal from the Department of Veterans Affairs Medical and Regional Office Center in Wichita, Kansas THE ISSUES 1. Entitlement to service connection for left ear hearing loss. 2. Entitlement to service connection for tinnitus. 3. Entitlement to service connection for an acquired psychiatric disorder. 4. Entitlement to service connection for a chronic pain syndrome disorder. 5. Entitlement to an initial rating in excess of 20 percent for degenerative changes of the right (major) wrist since November 18, 2005. 6. Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD P. Childers, Counsel INTRODUCTION The Veteran served on active duty from February 1975 to March 1977. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions issued in November 2004 and January 2008 by the Department of Veterans Affairs (VA) Regional Office (RO) in Wichita, Kansas. The 2004 rating decision granted, in pertinent part, service connection for degenerative changes of the right wrist with a rating of 10 percent effective February 5, 2004; and denied entitlement to TDIU. The 2008 rating decision denied service connection for bilateral hearing loss, tinnitus, chronic pain syndrome, anxiety, and obsessive compulsive disorder. In a rating decision in September 2006 the RO increased the rating for the Veteran's service-connected right wrist disability from 10 percent to 20 percent effective November 18, 2005. In February 2008 the Veteran testified before the undersigned Veterans Law Judge at a Travel Board hearing in Wichita, Kansas, regarding, in pertinent part, the assigned rating for his service-connected right wrist disability, and his claim for TDIU. In a decision in January 2009 the Board, in pertinent part, remanded the issues of entitlement to an initial rating for right wrist degenerative joint disease higher than 10 percent prior to November 18, 2005, and higher than higher than 20 percent since November 18, 2005; along with the issue of entitlement to TDIU, for further development, including provision to the Veteran of a VA wrist examination. In a decision in June 2011 the Board denied the issue of service connection for right ear hearing loss and the issue of entitlement to an initial rating higher than 10 percent prior to November 18, 2005, for right wrist degenerative joint disease; and then granted a separate rating of 10 percent for loss of palmar flexion of the right wrist. The Board also recharacterized the claims for service connection for anxiety and for obsessive-compulsive disorder as a single claim for an acquired psychiatric disorder, to include an anxiety disorder and an obsessive-compulsive disorder; and then remanded that issue, along with the issues of entitlement to service connection for left ear hearing loss, tinnitus, and chronic pain syndrome; entitlement to a rating higher than 20 percent for degenerative changes of the right wrist since November 18, 2005; and entitlement to TDIU; for further development. In a September 2012 rating decision the AMC effectuated the Board's June 2011 grant of a separate rating for loss of palmar flexion of the right wrist under Diagnostic Code 5215 with an effective date of February 5, 2004. The issues of entitlement to service connection for a chronic pain syndrome disorder, entitlement to an initial rating in excess of 20 percent for degenerative changes of the right wrist since November 18, 2005, and entitlement to TDIU are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, D.C. FINDINGS OF FACT 1. The Veteran's left ear hearing acuity is not within the definition of a hearing loss disability for VA compensation purposes. 2. The Veteran was exposed to excessively loud noise during service; and he has presented credible lay evidence of tinnitus during and since that exposure. 3. The Veteran's psychiatric disorder, presently diagnosed as recurrent depressive disorder, is related, at least in part, to his service-connected right thumb and wrist disabilities. CONCLUSIONS OF LAW 1. A current left ear hearing loss disability as defined by VA regulation is not found. 38 U.S.C.A. §§ 1110, 1131, 5103, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.385 (2012). 2. Recurrent tinnitus began during active duty service. 38 U.S.C.A. §§ 1110, 1131, 5103, 5107 (West 2002); 38 C.F.R. §§ 3,102, 3.303 (2012). 3. An acquired psychiatric disorder, to include depression, anxiety, and obsessive compulsive disorder, is secondary to a service-connected disability. 38 U.S.C.A. §§ 1110, 1131, 5103, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.310 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. The Veterans Claims Assistance Act of 2000 (VCAA) Under 38 U.S.C.A. § 5103(a), VA must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. Also, the VCAA notice requirements apply to all five elements of a service connection claim. The five elements are: (1) Veteran status; (2) existence of a disability; (3) a connection between the Veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The VCAA notice must be provided to a claimant before the initial unfavorable adjudication by the RO. Pelegrini v. Principi, 18 Vet. App. 112 (2004). The notice requirements were accomplished in a letter dated in May 2007. Mayfield v. Nicholson, 444 F.3d 1328, 1333 (Fed. Cir. 2006). The Veteran was apprised of the information and evidence needed to substantiate his claims of service connection (including the information and evidence to be submitted by him and the information and evidence to be obtained by VA); of how disability evaluations and effective dates are assigned; and of the type of evidence that impacts those determinations. As regards VA's duty to assist, evidence necessary for resolution of this appeal has been obtained. Specifically, the information and evidence that has been associated with the claims file includes the Veteran's service treatment records and VA medical records (including the report of a February 2007 audiology consult). The Veteran was also accorded a VA audiology examination in January 2013, during which the examiner reviewed the claims file, discussed the Veteran's history and symptoms with the Veteran, and conducted requisite testing; and the report of this examination is sufficiently detailed as to permit fair and equitable consideration of the merits of the claims. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (citing Ardison v. Brown, 6 Vet. App. 405, 407 (1994)) (affirming that a medical opinion is adequate if it provides sufficient detail so that the Board can perform a fully informed evaluation of the claim). The Board finds that the VA audiology evidence is adequate and VA has fulfilled its duty to assist. In addition to the foregoing, in February 2008 the Veteran testified before the undersigned Veterans Law Judge. During that hearing the Veteran's representative and the Veterans Law Judge explained the issues and asked the Veteran questions to ascertain the nature of any in-service events and symptoms. The Veteran's representative and the Veterans Law Judge also asked questions to draw out the current nature of the Veteran's complaints, and the hearing focused on the elements necessary to substantiate his claims. Neither the Veteran nor his representative has suggested any deficiency in the conduct of that hearing; and all pertinent evidence that might substantiate the claims was identified by the Veteran and has been obtained. Therefore, the Board finds that, consistent with Bryant v. Shinseki, the Veterans Law Judge complied with the duties set forth in 38 C.F.R. § 3.103(c)(2). See Bryant v. Shinseki, 23 Vet. App. 488 (2010) (holding that 38 C.F.R. § 3.103(c)(2) requires that a Veterans Law Judge fully explain the issues and suggest the submission of evidence that may have been overlooked during Board hearings). As noted above, the Veteran's left ear hearing loss, tinnitus, and acquired psychiatric disorder claims were remanded in 2011. To the extent necessary the RO complied with the directive of the remand with regard to the left ear hearing loss claim. A current disability is not present as determined on recent VA examination. Additionally, with regard to the Veteran's tinnitus and psychiatric disorder, based on the dispositions reached below, the Veteran is not prejudiced by the Board's rendering of a decision. In short, the Veteran was provided with a meaningful opportunity to participate in the claims process and has done so. Accordingly, any error in the sequence of events or content of the notice is not shown to have affected the essential fairness of the adjudication or to have caused injury to the Veteran; and does not prohibit consideration of this matter on the merits. See Pelegrini, 18 Vet. App. at 121; Conway, 353 F.3d. at 1374, Dingess, 19 Vet. App. 473; see also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). See also Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (strict adherence to requirements in the law does not dictate an unquestioning, blind adherence in the face of overwhelming evidence in support of the result in a particular case; such adherence would result in unnecessarily imposing additional burdens on VA with no benefit flowing to the Veteran). II. Service Connection Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Disorders diagnosed after discharge may still be service connected if all the evidence, including pertinent service records, establishes that the disorder was incurred in service. 38 C.F.R. § 3.303(d). For a Veteran who served 90 days or more of active service after December 31, 1946, there is a presumption of service connection for hearing loss if the disability is manifest to a compensable degree within one year of discharge from service. 38 U.S.C.A. § 1112; 38 C.F.R. §§ 3.307(a), 3.309(a); see also Walker v. Shinseki, 708 F.3d 1331 (2013). Service connection may also be granted for disability which is proximately due to or the result of a service-connected disability. 38 C.F.R. § 3.310(a); see Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). An increase in severity of a non-service-connected disorder that is proximately due to or the result of a service-connected disability, and not due to the natural progress of the non-service-connected condition, will be service connected. In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and continuity of his current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the 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. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77. The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that that Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C.A. § 7104(a) (West 2002). Moreover, the United States Court of Appeals for Veterans Claims (Court) has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, and the Veteran's demeanor when testifying at a hearing. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996). In determining the probative value to be assigned to a medical opinion, the Board must consider three factors. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The initial inquiry in determining probative value is to assess whether a medical expert was fully informed of the pertinent factual premises (i.e., medical history) of the case. A review of the claims file is not required, since a medical professional can also become aware of the relevant medical history by having treated a Veteran for a long period of time or through a factually accurate medical history reported by a Veteran. See id. at 303-04. The second inquiry involves consideration of whether the medical expert provided a fully articulated opinion. See Id. A medical opinion that is equivocal in nature or expressed in speculative language does not provide the degree of certainty required for medical nexus evidence. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). The third and final factor in determining the probative value of an opinion involves consideration of whether the opinion is supported by a reasoned analysis. The most probative value of a medical opinion comes from its reasoning. Therefore, a medical opinion containing only data and conclusions is not entitled to any weight. In fact, a review of the claims file does not substitute for a lack of a reasoned analysis. See Nieves-Rodriguez, 22 Vet. App. at 304; see also Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A] medical opinion ... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions."). 1. Left Ear Hearing Loss Testing of the left ear during a December 1974 pre-induction examination found hearing thresholds of 5, 5, 5, and 5, at 500, 1000, 2000, and 4000 Hertz, respectively. Testing of the left ear during a March 1977 separation examination found hearing thresholds of 0, 0, 0, and 10, at 500, 1000, 2000, and 4000 Hertz, respectively; and the Veteran denied any ear trouble. In March 1977 the Veteran separated from active duty service. In February 2007 he filed his claim for service connection for hearing loss. On VA audiology consult in February 2007 the Veteran reported that he had been exposed to noise from generators, headsets, Pershing missiles, and small weapons fire during service. He complained of constant bilateral tinnitus. Hearing thresholds at the tested frequencies of 500, 1000, 2000, 3000, and 4000 Hertz were 10, 5, 10, 25, and 20, respectively, for the left ear; and the speech recognition score for the left ear was 92 at 55 decibels/no masking. Diagnosis was hearing sensitivity within normal limits. On VA audiology examination in January 2013 hearing thresholds at the tested frequencies of 500, 1000, 2000, 3000, and 4000 Hertz were 5, 10, 15, 25, and 20, respectively, for the left ear; and the speech recognition score for the left ear was 96 percent. Diagnosis was normal left ear hearing. Hearing loss for the purpose of VA disability compensation is considered a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. Service connection may only be granted if claimed hearing loss is of sufficient severity to be considered a disability for VA purposes. Whether the Veteran meets the criteria for service connection for a hearing disability loss is based on mechanical application of results of audiometric examination to the definition provided by the law. The Veteran's lay statements regarding hearing acuity are credible evidence that the Veteran perceives a subjective hearing loss, but the Veteran's lay statements are not competent evidence which establishes that the Veteran's hearing acuity meets the definition of hearing loss disability set by law. See, e.g, Lendenman v. Principi, 3 Vet. App. 345 (1992). Analysis The Veteran's left ear hearing acuity on entry and at separation was well below VA criteria for a finding of disability. Indeed, according to service treatment records, the Veteran's left ear hearing actually improved during service. In any event, left ear hearing acuity was well within normal limits during service. Recent testing in 2013 also found left ear hearing within normal limits. Although the left ear speech recognition score in February 2007 was reported as 92 percent, the 2007 examiner did not state whether the Veteran's speech recognition score might have been impacted by his tinnitus, which the Veteran complained of during that examination. This is significant since left ear hearing thresholds in 2007 were well within normal limits. Indeed, left ear hearing acuity has, without exception, been well within normal limits throughout the appeal period (including during service); and the current (2013) finding of 96 percent is also well above the 94 percent standard. 38 C.F.R. § 4.2. Accordingly, based on the whole recorded history, and reconciling the various reports in this case into a consistent picture, the Board finds that the isolated speech recognition score of 92 percent in February 2007 is not demonstrative of permanent loss as contemplated by 38 C.F.R. § 3.385. See Evans v. West, 12 Vet. App. 22, 30 (1998) (providing that it is the responsibility of the Board to weigh the evidence and determine where to give credit and where to withhold the same). The weight of the evidence is consequently against the Veteran's claim for service connection. See Owens v. Brown, 7 Vet. App. 429 (1995) (it is the Board's fundamental responsibility to evaluate the probative value of all medical and lay evidence). As the weight of the evidence is against the Veteran's claim, service connection for left ear hearing loss must be denied, and the benefit of-the-doubt standard of proof does not apply. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990) (noting that when all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied.). 2. Tinnitus As regards the claim for tinnitus, the Veteran says he was exposed to excessive noise from generators, headsets, Pershing missiles, and small weapons fire during service; and his DD-214 confirms that he served as a Pershing Communications Specialist during service. Based on the evidence of record, including military records, the Board finds the Veteran's assertion of hazardous noise exposure during service to be consistent with the circumstances of his service. See Fast Letter 10-35. The question then is whether there is a current tinnitus disorder. As tinnitus is a diagnosis based on purely subjective complaints, the Board may accept the Veteran's statements in this regard. During his 2007 audiology consult and 2013 audiology examination the Veteran complained of recurrent ringing in his ears, which the 2007 and 2013 audiologists did not dispute. As there is no reason to doubt the veracity of the Veteran's allegation, particularly in view of his excessive noise exposure during service, the Board finds that the record contains competent and credible lay evidence of a current tinnitus disorder. See Charles v. Principi, 16 Vet. App. 370, 374 (2002) (noting that ringing in the ears is capable of lay observation). The issue then is whether the Veteran's tinnitus is related to service. During his 2013 audiology examination the Veteran stated that his tinnitus symptoms first began during service. Significantly, he has never alleged, and there is no record, of any complaints of tinnitus prior to service. In Barr v. Nicholson, 21 Vet. App. 303, 305 (2007), the Court held that when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. In such cases, the Board is within its province to weigh the lay evidence and to make a credibility determination as to whether that evidence supports a finding of service incurrence and continued symptoms since service sufficient to establish service connection. Id. In this case the Board finds the Veteran's assertion of excessive noise exposure and tinnitus during and since service, which is uncontradicted by any other evidence of record, and which is consistent with the circumstances of his service, to be not only credible, but persuasive. Although the May 2013 examiner opined that the Veteran's tinnitus was not related to service because it was not documented in service treatment records, the Board accords this opinion little weight since the examiner disregarded the Veteran's uncontroverted lay account of symptoms in service. See Dalton v. Nicholson, 21 Vet. App. 23 (2007) (holding that an examination was inadequate where the examiner did not comment on the Veteran's report of in-service injury but relied on the service medical records to provide a negative opinion). Upon consideration of the record, and resolving all doubt in the Veteran's favor, the Board finds that the Veteran's competent and credible account of his experiences and symptoms supports a finding that his tinnitus began in service and has continued since. Service connection for tinnitus is therefore warranted. 38 C.F.R. §§ 3.102, 3.303. 3. Acquired Psychiatric Disorder The Veteran also seeks service connection for a psychiatric disorder, which he propounds may be related to his service-connected thumb and wrist disabilities. On review of the evidence of record, the Board is inclined to agree. In May 2005 the Veteran filed a claim for service connection for "a psychiatric condition secondary to [his] service-connected disabilities pursuant to 38 C.F.R. § 3.310." In May 2006 the RO issued VCAA notice in the matter. In a rating decision in October 2006 the RO denied the claim. In November 2006 the Veteran submitted evidence and argument in the matter, including a statement prepared in November 2006 by a VA psychiatrist, who advised that the Veteran has been followed in the VA outpatient psychiatric clinic since March of 2004, and that he had been personally involved in the Veteran's care since August of 2006. The psychiatrist further advised that the Veteran was suffering from mild recurrent major depressive disorder. He then stated that after reviewing the Veteran's record, while it was not clear that his depression was caused by this thumb and wrist injury, "what is clear is that his chronic pain is contributing to his current depressive symptoms." The psychiatrist explained that the Veteran's pain was a factor in his depression in two ways: through the psychosocial difficulty associated with his inability to function in ways that he would otherwise have been able to; and through the direct effect that pain has on depressive symptoms. He added that this generally involves a worsening of the severity of mood symptoms, the length of episodic mood symptoms, and the frequency of exacerbations; and can include a higher risk of both suicide attempts and suicide completions in persons with the combination of chronic pain and depression. Contrary to 38 C.F.R. § 3.156(b), the RO did not reconsider the Veteran's claim for an acquired psychiatric disorder secondary to service-connected disabilities after presentation of this evidence. In May 2007 the RO sent the Veteran a letter advising that him that it was working on his application for service connection for depression. In July 2007 the Veteran resubmitted the November 2006 statement/opinion from his treating psychiatrist regarding the Veteran's depression disorder and its relation to his service-connected right thumb and wrist disabilities. The Veteran also filed another claim, this time for anxiety disorder and obsessive compulsive disorder. In a rating decision in January 2008 the RO denied the issues of service connection for anxiety and obsessive compulsive disorder; which the Veteran appealed. In a decision in June 2011 the Board recharacterized the claims for service connection for anxiety and for obsessive-compulsive disorder as a single claim for an acquired psychiatric disorder, which the Veteran had indeed filed in 2005, and which the RO, contrary to the provisions of 38 C.F.R. § 3.156(b), did not reconsider after the November 2006 evidence from the Veteran's treating psychiatrist. See 38 C.F.R. § 3.156(b) (providing that new and material evidence received prior to the expiration of the appeal period will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period). Consequently, the Board finds that the Veteran's appeal for an acquired psychiatric disorder, which he perfected after issuance of the January 2008 rating decision, relates back to, and has been continuously prosecuted since, his May 2005 pending claim for service connection. On VA PTSD examination in January 2013 the examiner, a clinical psychologist, noted that the Veteran has been treated by VA for mental health complaints since at least 1997, including inpatient care for depression in 2003. Diagnosis by this examiner was major depressive disorder, recurrent, mild, which the examiner stated was at least as likely as not aggravated by the Veteran's chronic pain issues from his service-connected wrist and thumb and his nonservice-connected back and shoulders. The examiner then stated that he was unable to determine a baseline for the Veteran's depression due to a lack of specificity in records. He added that he agreed with the VA psychiatrist's assessment that the Veteran's pain had contributed to, but not caused, the Veteran's depression, and reiterated that he was unable to give a baseline percentage of increase in severity of the Veteran's psychiatric disorder. Service connection may be granted on a secondary basis for a disability which is proximately due to or the result of a service-connected disability. When service connection is established for a secondary condition, the secondary condition shall be considered part of the original condition. 38 C.F.R. § 3.310(a). In September 2006, 38 C.F.R. § 3.310 was amended to place a burden on the claimant to establish a pre- aggravation baseline level of disability for the non-service- connected disability before an award of service connection may be made. Allen v. Brown, 7 Vet. App. 439 (1995). In this case the Veteran's May 2005 claim for an acquired psychiatric disorder was pending before the regulatory change in 2006, so the Board will consider the version of 38 C.F.R. § 3.310 in effect before the change; a version which favors the Veteran since there was no requirement for a pre-aggravation baseline level of disability for the non-service-connected disability. Accordingly, the only matter to be resolved is whether the evidence shows that the Veteran's depression is related to a service-connected disability(s). According to the Veteran's VA treating psychiatrist and the 2013 VA examiner/psychologist, the Veteran's depression is aggravated by his service-connected thumb and right wrist disabilities, as well as by his nonservice-connected back and shoulder disorders. Although the extent of impairment attributable to the service-connected disabilities was not quantified, the Board finds that it is sufficient that a VA psychiatrist and a VA psychologist both agree that the service-connected disabilities are at least in part responsible for the Veteran's depression; and there is no evidence to the contrary. See Mittleider v. West, 11 Vet. App. 181 (1998) (providing that if an examiner is unable to medically distinguish the extent of impairment attributable to the service-connected disability, the benefit-of-the-doubt doctrine directs that all such impairment be attributed to the service-connected disability). The Board accordingly finds that the Veteran's depression is aggravated by his service-connected right thumb and wrist disabilities. As for the extent of aggravation, the Board finds the treating psychiatrist's assertion that the Veteran's pain has caused a worsening in severity of his depressed mood symptom, along with the 2013 psychologist's remarks regarding the baseline level of severity, to be tacit evidence of aggravation beyond the normal progression of the disorder. Accordingly, and resolving all doubt in the Veteran's favor, the Board finds that the criteria for service connection on a secondary basis for an acquired psychiatric disorder, to include anxiety, obsessive compulsive disorder, and depression, are met. ORDER Service connection for left ear hearing loss is denied. Service connection for tinnitus is granted. Service connection for an acquired psychiatric disorder, to include depression, anxiety, and obsessive compulsive disorder, is granted. REMAND In addition to the foregoing, the Veteran seeks service connection for chronic pain syndrome, and in June 2011 the Board remanded the matter for an opinion as to whether the Veteran has a chronic pain syndrome disorder; and, if so, whether the disorder was caused or aggravated by the Veteran's service-connected right wrist and/or right thumb disability(s). In January 2013 the Veteran was accorded a VA hand/thumb/fingers examination. Review of the ensuing report reveals that the examiner was told to "provide only diagnoses that pertain to wrist conditions." Consequently, the only diagnosis proffered and discussed was degenerative joint disease, right wrist, which the examiner stated was at least as likely as not related to service. Unfortunately, this is not responsive to the Board's 2012 remand directive, since the Veteran was already service-connected for right wrist degenerative joint disease and the Board was quite aware of that fact. Instead, the Board had requested the examiner to state whether the Veteran has a separate and distinct chronic pain syndrome disorder. This was not done. Remand for compliance with the Board's June 2011 remand directives is therefore warranted. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (providing that remand by the Board confers upon the veteran, as a matter of law, the right to compliance with the Board's remand order). As regards the propriety of the assigned rating for the Veteran's service-connected right wrist degenerative joint disease disability, in a rating decision in November 2005 the RO granted service connection for right wrist degenerative changes with a rating of 10 percent effective February 5, 2004. In November 2005 the Veteran filed a notice of disagreement with the assigned rating, and included the report of x-rays of the right wrist taken by VA on November 18, 2005, which revealed "a progression in the post-traumatic degenerative osteoarthritis changes involving the right wrist when compared with the x-rays of the right wrist that were taken on 3/25/04." In a September 2006 rating decision the RO increased the rating for the Veteran's right wrist degenerative disability to 20 percent effective November 18, 2005. In January 2009 the Board remanded the issues of an initial rating in excess of 10 percent for degenerative changes of the right (major) wrist prior to November 18, 2005; and an initial rating in excess of 20 percent for degenerative changes of the right (major) wrist since November 18, 2005, for further development and re-adjudication. In a Supplemental Statement of the Case dated in July 2010 the AMC re-adjudicated the issue of an initial rating in excess of 10 percent for degenerative changes of the right (major) wrist prior to November 18, 2005; but not the issue of an initial rating in excess of 20 percent for degenerative changes of the right (major) wrist since November 18, 2005. In a decision in June 2011 the Board issued a decision on the propriety of the assigned rating for the Veteran's right wrist degenerative joint disease disability prior to November 18, 2005. In so doing the Board determined that a rating higher than 10 percent for degenerative joint disease (manifest as loss of dorsiflexion) of the right wrist under Diagnostic Code 5215 prior to November 18, 2005 was not warranted, but that a separate rating of 10 percent for loss of palmar flexion of the right wrist under Diagnostic Code 5215 was warranted. The Board then, citing Stegall, remanded the issue of an initial disability rating higher than 20 percent since November 18, 2005, for right wrist degenerative joint disease for compliance with its January 2009 remand directives; namely, provision to the Veteran of an examination, and then readjudication. Stegall, 11 Vet. App. 268, 271 (providing that remand by the Board confers upon the veteran, as a matter of law, the right to compliance with the Board's remand order). In a rating decision in September 2012 the AMC effectuated the Board's June 2011 grant of a separate rating for loss of palmar flexion of the right wrist under Diagnostic Code 5215 with an effective date of February 5, 2004; with the effect that the Veteran is now 10 percent service-connected for degenerative changes of the right wrist from February 5, 2004; 10 percent service-connected for right wrist limited plantar flexion from February 5, 2004; and 20 percent service-connected for right wrist degenerative joint disease from November 18, 2005. The issue of an initial disability rating higher than 20 percent for right wrist degenerative joint disease since November 18, 2005, was not addressed in the September 2012 rating decision. On January 11, 2013, the Veteran was accorded a VA hand/thumb/fingers examination; and on January 24, 2013, a Supplemental Statement of the Case was issued, but the issue of an initial disability rating higher than 20 percent for right wrist degenerative joint disease since November 18, 2005, was still not discussed/readjudicated. In correspondence dated January 30, 2013, the Veteran advised that he had received the latest Supplemental Statement of the Case, and requested a 30 day waiver of review by the agency of original jurisdiction of any evidence that he might locate. Unfortunately, the issue of an initial disability rating higher than 20 percent for right wrist degenerative joint disease since November 18, 2005, was not listed or addressed in the January 2013 Supplemental Statement of the Case; so the Veteran's January 2013 correspondence does not constitute a knowing and informed waiver of evidence regarding that issue. Remand for compliance with the Board's January 2009 remand directive remains warranted. Stegall, 11 Vet. App. 268. Finally, as the Veteran's claim for entitlement to TDIU is contingent on his appeal for service connection for a chronic pain syndrome disorder and his appeal for a rating higher than 20 percent for right wrist degenerative joint disease beginning November 18, 2005, these issues are inextricably intertwined. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (holding that two issues are "inextricably intertwined" when they are so closely tied together that a final Board decision cannot be rendered unless both issues have been considered). The claim for TDIU is consequently remanded pending resolution of these appeals. On remand the claims file should be updated to include VA treatment records dating from January 2013. See Bell v. Derwinski, 2 Vet. App. 611 (1992) (providing that VA has constructive notice of VA generated documents that could reasonably be expected to be part of the record, and that such documents are thus constructively part of the record before the Secretary and the Board, even where they are not actually before the adjudicating body). Accordingly, the case is REMANDED for the following action: 1. Associate, with the claims file, all VA medical records pertaining to the Veteran dated after January 2013, from the Eastern Kansas HSC, Leavenworth VAMC. Any other pertinent records identified by the Veteran during the course of the remand should also be obtained and associated with the claims file, following the receipt of any necessary authorizations from the Veteran. If no records are found and it is determined that further attempts to obtain the records would be futile, notify the Veteran and his representative of the negative results in accordance with 38 C.F.R. § 3.159(e), and allow the Veteran an opportunity to submit the sought-after records. 2. Afford the Veteran a VA examination to determine whether the Veteran has a chronic pain syndrome disorder. The claims file and a copy of this remand should be made available to the examiner. The examiner should obtain history from the Veteran, review the entire claims file, and should indicate, in the examination report, that such review was performed. Any tests or studies deemed necessary for an accurate assessment should be conducted, and the results should be associated with the claims file and discussed in the examination report. The examiner is then requested to answer the following questions: (i). Does the Veteran have a chronic pain syndrome disorder, separate and apart from his service-connected disabilities? (ii). If the Veteran has a chronic pain syndrome disorder, is it at least as likely as not (50 percent or greater probability) that the disorder is due to or the result of service-connected right wrist and thumb disabilities. (iii). If it is determined that a chronic pain syndrome disorder, if found, is not directly due to the Veteran's service-connected right wrist and/or right thumb disability(s), is it at least as likely as not (50 percent or greater probability) that the pain syndrome disorder is aggravated, that is, permanently increased in severity, by the service-connected disabilities? In answering the questions, the examiner must comment on the Veteran's lay statements as to the onset and history of his pain. If the examiner cannot provide the above answers without resorting to speculation, the examiner should so state, and explain why that is so (e.g., lack of sufficient information/evidence; limits of medical knowledge; etc.). 3. After completion of all of the above, re-adjudicate the issues of entitlement to service connection for a chronic pain syndrome disorder; entitlement to an initial disability rating in excess of 20 percent for degenerative changes of the right (major) wrist since November 18, 2005, and entitlement to TDIU. If any benefit is not granted in full, furnish the Veteran and his representative a Supplemental Statement of the Case and provide an appropriate period of time for response. Then, return the case to the Board for appellate review. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ C. CRAWFORD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs