Citation Nr: 1328592 Decision Date: 09/09/13 Archive Date: 09/17/13 DOCKET NO. 09-24 784 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to service connection for hearing loss. 2. Entitlement to service connection for tinnitus. 3. Entitlement to service connection for an acquired psychiatric disorder. 4. Entitlement to an initial rating in excess of 20 percent disabling for degenerative disc disease, cervical spine. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD C. Eckart, Counsel INTRODUCTION The Veteran had almost continuous active service from March 1957 to January 1961. This appeal to the Board of Veterans' Appeals, hereinafter the Board, arose from a September 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas, that, in pertinent part, granted service connection for a cervical spine disorder and denied the Veteran's claims for entitlement to service connection for hearing loss, tinnitus and a psychiatric disorder. The Veteran testified at a hearing before a Decision Review Officer (DRO) in December 2011 and at a videoconference hearing before the undersigned Veterans Law Judge (VLJ) at the RO in June 2013. Transcripts of these hearings were prepared and have been included in the claims folder for review. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND A November 2006 VA examination fails to provide an adequate rationale for the opinion that the Veteran's diagnosed depressive disorder not otherwise specified (NOS) is not related to the passive aggressive reaction that was diagnosed in service in October 1960. The examiner has suggested that the Veteran had a psychiatric disorder that pre-existed service, but failed to adequately discuss aggravation. The examiner also suggests that the Veteran' current depressive disorder may be related to physical problems, but does not specify whether this would include his service connected cervical spine disorder. The Veteran suggests that psychiatric symptoms are attributable to the in-service cervical spine injury. Transcript DRO hearing page 7-9. Thus examination must also address whether a psychiatric disorder is secondary to his service connected cervical spine disorder. Regarding the hearing loss and tinnitus claims, the VA examiner who conducted the November 2006 VA audiology examination cites to studies finding that an individual would not likely suffer significant hearing loss during initial training. The examiner did not adequately cite to the study or provide an easily searchable link. Additionally the examiner provided no opinion or rationale as to the claimed head trauma from parachuting as a possible cause for the hearing loss and tinnitus. It is also noted that the Veteran received a head injury when struck in the head by a police officer when he returned to base intoxicated. While a line of duty determination for this incident was initiated, it appears not to have been completed after the RO conceded injury from a parachute incident. As the Veteran has alleged in-service head trauma has resulted in his hearing loss and tinnitus, and has provided lay testimony suggesting that such symptoms began shortly after such injury (See Transcript Board hearing at 8), an addendum to the November 2006 VA examination report is necessary to address this theory of entitlement. Regarding the increased rating claim for the cervical spine disorder, the Veteran's June 2013 hearing testimony now suggests that he is receiving VA treatment for this disorder, specifically physical therapy, and has also suggested that the VA is treating his other claimed disorders. Transcript Board hearing at 9-12. Records of such treatment for his neck are not associated with the claims file. VA records are considered part of the record on appeal since they are within VA's constructive possession. Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). The Veteran also is alleging neurological manifestations involving the left upper extremity. While the February 2012 VA examination did not find evidence of radiculopathy, given the Veteran's recent testimony of apparently worsening upper extremity symptoms, and a decrease of cervical spine motion, reexamination should be conducted to include orthopedic and neurological evaluation. In addition, the Board notes that the RO has affixed the date of the increased rating claim to be a statement received regarding his cervical spine in March 2010. However he made a similar statement regarding his cervical spine in a July 2009 VA form I-9 that perfected the appeal of other matters on appeal. In adjudicating the increased rating claim, the RO should consider whether the July 2009 date of VA form I-9 is the appropriate date of claim for the increased rating. Accordingly, the case is REMANDED for the following action: 1. Obtain the Veteran's medical records from the VA Houston Texas for treatment for his claimed cervical spine disorder, psychiatric disorder and hearing loss and tinnitus disorders from approximately 2005 to the present. Continue to request the VA records, either until the records are obtained or it is reasonably certain that the records do not exist or that further efforts to obtain the records would be futile. All efforts to obtain VA records should be fully documented, and the VA facility must provide a negative response if records are not available. 2. After the aforementioned development has been completed, return the claims folder to the November 2006 VA audiological examiner. The claims folder and a copy of this remand must be reviewed by the examiner. The examiner is asked to clarify her prior opinion that the Veteran does not have hearing loss or tinnitus as a result of service, (to include as due to acoustic trauma from the MOS of serving within an artillery unit beyond initial training, or alternatively due to head trauma in service from a parachuting accident as well as the in-service head laceration treated after an altercation with police) and provide a detailed rationale for her conclusions. In providing the opinion(s), the examiner should also address the medical evidence as well as the Veteran's lay assertions regarding the time of onset of hearing loss symptoms and duration and frequency of inservice acoustic trauma. (If the examiner is no longer available, or concludes that an examination is required to provide the required opinions, another examination should be scheduled.). The reports of any study or studies relied upon by the examiner must be adequately identified, to include those studies relied upon by the examiner in the original examination from November 2006. If the November 2006 examiner is unavailable, an opinion should be obtained from another qualified examiner; if deemed necessary, another examination should be scheduled. 3. Following completion of the above, schedule the Veteran for a VA psychiatric examination to determine the nature and extent of any current psychiatric disabilities, and to obtain a medical opinion as to whether any such disorders are related to service. The claims file must be provided to and be reviewed by the examiner in conjunction with the examination. The examination report should include a detailed account of all psychiatric pathology found to be present. The examiner should consider the service treatment records reflecting treatment for psychiatric complaints with a diagnosis of passive aggressive reaction that was diagnosed in service in October 1960. Any tests or studies deemed necessary should be conducted, and the results should be reported in detail. Following review of the claims file and examination of the Veteran, the examiner should clearly identify all psychiatric disorders found. With respect to each diagnosed psychiatric disability (other than personality disorders), the examiner should opine as to whether it is at least as likely as not (50 percent probability or greater) that the current psychiatric disability arose during service or is otherwise related to any incident of service. If the examiner finds that any psychiatric disability (other than personality disorders) clearly and unmistakably pre-existed service, the examiner should opine as to whether it clearly and unmistakably was not aggravated by service. Finally if a psychiatric disorder is not shown to have been caused or aggravated by service, the examiner should opine as to whether it is at least as likely as not (50 percent probability or greater) that it is being caused or aggravated by his service connected cervical spine disorder. If aggravated, specify the baseline of psychiatric disability prior to aggravation, and the permanent, measurable increase in psychiatric disability resulting from the aggravation. 4. After associating all outstanding records with the claims folder, schedule the Veteran for a VA examination to determine the nature, extent, frequency and severity of any orthopedic and neurologic impairment related to the Veteran's neck disability. The claims folder should be made available to and reviewed by the examiner. (a) The examiner should identify all orthopedic pathology found to be present. The examiner should conduct all indicated tests and studies, to include range of motion studies expressed in degrees and in relation to normal range of motion, and should describe any pain, weakened movement, excess fatigability, and incoordination present. To the extent possible, the examiner should express any functional loss in terms of additional degrees of limited motion of the Veteran's back. (b) In addition, if possible, the examiner should state whether the back disability has been productive of any incapacitating episodes, which are defined as periods of acute signs and symptoms that require bed rest prescribed by a physician or treatment by a physician, and if so, the frequency and duration of those episodes. (c) Further, the examiner should also discuss the nature and severity of any neurological impairment such as radiculopathy or neuropathy. In doing so, the examiner must identify the specific neurological tests conducted in making this determination. The examiner should report whether the service-connected spinal disability results in neuritis, neuralgia, or partial or complete paralysis of any nerve that has been shown to be affected by this disability, including but not limited to any right leg neurological symptoms and muscle atrophy shown. Any additional complications besides the neurological complications should be noted and the frequency and severity of such problems should be addressed in conjunction with the appropriate criteria, including but not limited to bladder symptoms. Any opinion offered should include an explanation of supporting comprehensive rationale based on sound medical principles and facts. 5. Thereafter, the AOJ should readjudicate the Veteran's claims. Adjudication of the increased rating claim for the cervical spine disability should include consideration of this claim from the July 2009 VA form I-9 that appears to contain an informal claim for an increased rating. If any benefit sought on appeal remains denied, the Veteran should be provided a supplemental statement of the case, which reflects consideration of all additional evidence received and all applicable regulations. An appropriate period of time should be allowed for response. No action is required of the veteran until he is notified by the RO; however, the Veteran is advised that failure to report for any scheduled examination may result in the denial of his claim. 38 C.F.R. § 3.655 (2012). The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim 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). _________________________________________________ THOMAS J. DANNAHER Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2012).