Citation Nr: 1334246 Decision Date: 10/29/13 Archive Date: 11/06/13 DOCKET NO. 10-23 077 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for a variously diagnosed psychiatric disability other than posttraumatic stress disorder (PTSD)). 2. Entitlement to service connection for bilateral hearing loss. REPRESENTATION Veteran represented by: Vietnam Veterans of America ATTORNEY FOR THE BOARD Megan C. Kral, Associate Counsel INTRODUCTION The appellant is a Veteran who served on active duty from June 1968 to February 1971. This matter is before the Board of Veterans' Appeals (Board) on appeal from a July 2009 rating decision of the Waco, Texas Department of Veterans Affairs (VA) Regional Office (RO). The Veteran had also initiated an appeal of a denial of service connection for a back disability. However, a November 2012 rating decision granted such claim; consequently, that matter is not before the Board. The issue of service connection for a psychiatric disability is characterized to reflect that service connection has been established for PTSD (rated 70 percent), and that service connection for that disability is not for consideration. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action on his part is required. REMAND The Veterans Claims Assistance Act of 2000 (VCAA), 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002) and the regulations implementing it apply in the instant case. While the notice provisions of the VCAA appear to be satisfied, the Board is of the opinion that further development of the record is required to comply with VA's duty to assist the Veteran in the development of the facts pertinent to his claim. See 38 C.F.R. § 3.159 (2013). Regarding psychiatric disability, the Board notes that the diagnoses claimed (anxiety and depression) are rated under the same criteria as PTSD, and that in assigning the current 70 percent rating for such disability the RO has not excluded consideration of any psychiatric symptoms as due to co-existing, and nonservice connected, psychiatric disability. Nonetheless, the Veteran is entitled to establish service connection for other psychiatric diagnoses, if he so desires (and rating decisions continue to reflect that service connection for depression/anxiety remains denied). The Veteran attributes his anxiety and depression to his active duty service. However, there is evidence that a psychiatric disability pre-existed his active duty service. On March 1968 pre-induction examination it was noted that the Veteran suffered from mild recurrent depression; in medical history provided at the time Veteran indicated he had attempted suicide in 1964, suffered depression, and had occasional problems with nervousness. An October 1997 private psychological evaluation attributed the Veteran's depression to his childhood. The Veteran has been afforded numerous VA psychological evaluations. However, the Board finds them inadequate for rating purposes. Specifically, the September 2010 and January 2011 examinations were requested with respect to the claim of service connection for PTSD. Both examiners diagnosed anxiety and major depressive disorder and discussed the Veteran's abusive childhood, neither offered an opinion as to the etiology of the anxiety. A November 2012 VA examination was sought to assess the specific entities of anxiety and depression. Without reviewing the record, the examiner opined, that the Veteran's major depressive disorder was less likely than not incurred in or caused by his in-service stressor events, but likely to have started prior to his military service. The examiner did not opine as to whether the major depressive disorder was aggravated in service, but noted that the Veteran believed that his major depressive disorder was aggravated in service. When asked to provide an addendum opinion after reviewing the claims file, the November 2012 examiner indicated that it could not be determined whether major depressive disorder pre-existed service, whether depression occurred in service, or whether depression was a symptom of PTSD symptoms. Given the inconsistent opinions provided by the examiner, the Board finds them inadequate for rating purposes and finds that another examination to resolve the question is necessary. See Barr v. Nicholson, 21 Vet. App. 303 (2007) (when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). Regarding hearing loss, while the Veteran's March 1968 pre-induction examination audiometry shows an elevated puretone threshold of 30 decibels at 4000 hertz. His service treatment records are silent for a hearing loss disability; his service separation examination did not include audiometry. A bilateral hearing loss disability was found on July 2009 VA examination. The July 2009 examiner concluded that the Veteran had a preexisting hearing loss disability (and did not provide explanation or further opinion regarding the etiology of the hearing loss. The Board notes that a single puretone threshold of 30 decibels at 4000 hertz does not establish a hearing loss disability under 38 C.F.R. § 3.385, that such finding was unilateral, and that under 38 U.S.C.A. § 1111, the Veteran is entitled to a presumption of on entry in service as to a hearing loss disability. The examiner noted that any opinions provided would be pure speculation (but did not explain why, as required under governing caselaw). Accordingly, the examination is inadequate for rating purposes, and another (adequate) examination is necessary. See Barr v. Nicholson, 21 Vet. App. 303 (2007). The record also reflects that the Veteran receives ongoing VA treatment. Updated records of VA treatment for the disabilities at issue are likely to contain pertinent information, are constructively of record, and must be secured. The case is REMANDED for the following: 1. The RO should secure and associate with the record the complete record of all VA treatment the Veteran has received for psychiatric disability or for hearing loss since October 2010. 2. The RO should then arrange for a psychiatric examination of the Veteran by a VA psychologist or psychiatrist other than the examiner who conducted the November 2012 examination to determine the nature and likely etiology of any psychiatric disability entity he may have other than PTSD. The entire record must be reviewed by the examiner in conjunction with the examination, and any tests or studies deemed appropriate should be completed. Based on examination of the Veteran and review of the record, the provider should prepare an opinion that responds to the following: a. Please identify (by medical diagnosis) each psychiatric disability other than PTSD currently shown (and the symptoms and impairment attributable to such disability). b. For each psychiatric diagnosis other than PTSD found, please indicate when such was initially manifested (as shown by the record), i.e., (i) prior to service, (ii) during service, or (iii) postservice. Please identify the symptoms which establish the presence of the diagnosis at the time. c. As to any psychiatric disability other than PTSD diagnosed that was first manifested prior to service, please indicate whether such was aggravated by service (increased in severity therein). Please identify the factual data that support the response. d. For each psychiatric disability entity other than PTSD diagnosed, please identify the most likely etiology, specifically, is it at least as likely as not (a 50% or better probability) that such is related to the Veteran's service/disease, injury, or event therein. 3. The RO should also arrange for audiological evaluation of the Veteran (with audiometric studies) to determine the likely etiology for his hearing loss disability. The record (to include this remand) must be reviewed by the examiner in conjunction with the examination. Based on examination of the Veteran and review of the record, the examiner should provide an opinion that responds to the following: What is the likely etiology for the Veteran's current hearing loss disability? Specifically, is it at least as likely as not (a 50 % or better probability)that the disability is related to a disease, injury, or event during the Veteran's service? The examiner must explain the rationale for all opinions, citing to supporting factual data. 4. The RO should then review the record and readjudicate the matters on appeal. If either remains denied, the RO should issue an appropriate supplemental statement of the case, and afford the Veteran and his representative the opportunity to respond. The case should then be returned to the Board, if in order, for further 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 for additional development or other appropriate action must be handled in an expeditious manner. _________________________________________________ GEORGE R. SENYK 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) (2013).