Citation Nr: 1618626 Decision Date: 05/10/16 Archive Date: 05/19/16 DOCKET NO. 11-16 574 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE 1. Entitlement to an initial rating in excess of 10 percent for tinnitus. 2. Entitlement to an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), anxiety and depression, to include as secondary to tinnitus. 3. Entitlement to service connection for hepatitis C. 4. Entitlement to service connection for a disability manifested by dizziness, to include as secondary to tinnitus and an acquired psychiatric disorder, to include anxiety, depression and PTSD. 5. Entitlement to a sleep disorder, to include as secondary to tinnitus and an acquired psychiatric disorder, to include anxiety, depression and PTSD. 6. Entitlement to an initial compensable rating for bilateral hearing loss. 7. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Stacey Penn Clark, Attorney at Law ATTORNEY FOR THE BOARD Carole Kammel, Counsel INTRODUCTION The Veteran served on active duty from September 1970 to May 1974. These matters are before the Board of Veterans' Appeals (Board) on appeal from a December 2006 rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California. By that rating action, the RO granted service connection for tinnitus and bilateral hearing loss; initial 10 and noncompensable disability ratings were assigned, effective November 30, 2005--the date VA received the Veteran's initial claim for compensation for these disabilities. The RO also denied service connection for PTSD. The Veteran was informed of the RO's December rating action in late February 2007. In a written statement, received by VA in mid-February 2008, the Veteran's representative at that time, Disabled American Veterans (DAV), indicated that the Veteran disagreed with the February 27, 2007 rating action. In a December 2009 letter to the Veteran, with a copy provided to his representative, the RO asked him to specify the exact matters that were the subject of the DAV's February 2008 letter within 60 days of issuance of its letter. In written statement to the RO, dated in December 2009, the Veteran and his representative indicated, in part, that they disagreed with the RO's denial of entitlement to service connection for PTSD, and entitlement to initial 10 and noncompensable ratings for tinnitus and hearing loss, respectively. (See Veteran's and Veteran's representative's written arguments, received by the RO in late December 2009 and labeled and received into the Veteran's Veterans Benefits Management System (VBMS) at page (pg.) 11 as "Notice of Disagreement")). In June 2011, the RO issued a Statement of the Case (SOC) that addressed these claims. The Veteran timely appealed these matters to the Board. Jurisdiction of the appeal currently resides with the St. Petersburg, Florida RO. This appeal also stems from an August 2008 rating action of the Seattle, Washington RO. By that rating action, the RO, in part, denied service connection for hepatitis C. The Veteran appealed the RO's adverse determination to the Board. The Board notes that by a May 2012 rating action, the Los Angeles, California RO also separately denied issues of entitlement to service connection for depression, claimed as anxiety and mood disorder, to include as secondary to tinnitus. While the RO adjudicated the claims for service connection for PTSD and depression separately, the Board has combined these issues and has addressed them as a single claim for an acquired psychiatric disorder as reflected on the title page. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). In addition, by the above-cited May 2012 rating action, the RO also denied entitlement to TDIU. The Veteran was informed of the RO's decision in May 2012. In July 2012, VA received a statement from the Veteran wherein he maintained that he was unable to work as a result of his mental disorder and dizziness. (See VA Form 21-418, Statement in Support of Claim, received into the Veteran's VBMS electronic record on July 26, 2012 at pg. 6)). The RO issued a SOC that addressed the TDIU issue in ADD. The Veteran timely appealed. With respect to the issues of entitlement to service connection for a disability manifested by dizziness and sleep disorder, by a February 2015 rating action, the St. Petersburg, Florida RO, in part, denied these claims on the basis that new and material evidenced had not been received. The Veteran timely appealed the RO's adverse determinations. In adjudicating these claims, the Board notes that because there was never any prior rating action denying these claims, that they are currently before the Board on a de novo basis, as opposed to requiring the receipt of new and material evidence. Furthermore, as the evidence of record reflects that the Veteran experienced dizziness and insomnia as a result of anxiety, the Board has recharacterized the claim for service connection for a disability manifested by dizziness to include as secondary to an acquired psychiatric disorder, as reflected on the title page. The Board notes that all possible theories of entitlement raised by the record must be considered. See Robinson v. Mansfield, 21 Vet. App. 545, 559 (2008), aff'd Robinson v. Shinseki, 557 F.3d 1355, 1361 (Fed. Cir. 2009). The issues of entitlement to service connection for hepatitis C; disability manifested by dizziness and sleep disorder, each to include as secondary to tinnitus and an acquired psychiatric disorder, to include PTSD, anxiety and depression; entitlement to TDIU; and, entitlement to an initial compensable rating for bilateral hearing loss are addressed in the REMAND portion of the decision below are REMANDED to the Agency of Original Jurisdiction (AOJ). The Board notes that by a May 2015 rating action, the RO, in part, denied service connection for a heart disorder. The Veteran was informed of the RO's decision that month. In March 2016, VA received the Veteran's notice of disagreement (NOD) with the RO's denial of service connection for the above-cited disability, thus, necessitating issuance of a statement of the case addressing this issue. A search of the Board's Veterans Appeals Co-Locator System (VACOLS) reflects that the RO has undertaken action of the issue, but has mischaracterized it as an increased rating claim, as opposed to service connection for a heart disorder. Thus, the RO is hereby advised that the Veteran's March 2016 NOD is with its May 2015 denial of service connection for a heart disorder and, as such, should be correctly addressed in its issuance of an SOC. FINDINGS OF FACT 1. The 10 percent rating currently in effect is the maximum schedular rating for service-connected tinnitus. 2. Resolving all doubt in the Veteran's favor, the Veteran has an acquired psychiatric disorder, currently diagnosed depression and anxiety, that have been caused or aggravated by the service-connected tinnitus. CONCLUSIONS OF LAW 1. An initial rating in excess of 10 percent for tinnitus is not warranted. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.102, 4.7, 4.87, Code 6260 (2015). 2. The criteria for service connection for an acquired psychiatric disorder, namely depression and anxiety, have been met. 38 U.S.C.A. §§ 1110, 1131, 5103(a), 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.159, 3.304(f), 3.310 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Increased Rating Claim-Tinnitus The Veteran is contending that an initial rating in excess of 10 percent for the service-connected tinnitus is warranted. Tinnitus is evaluated under 38 C.F.R. § 4.87, Diagnostic Code 6260, which was revised effective June 13, 2003, to clarify the existing VA practice that only a single 10 percent rating is assigned for tinnitus, whether the sound is perceived as being in one ear, both ears, or in the head. See 38 C.F.R. § 4.87, Diagnostic Code 6260. In Smith v. Nicholson, 19 Vet. App. 63, 78 (2005) the United States Court of Appeals for Veterans Claims (Court) held that the pre-1999 and pre-June 13, 2003 versions of Diagnostic Code 6260 required the assignment of dual ratings for bilateral tinnitus. VA appealed this decision to the United States Court of Appeals for the Federal Circuit (Federal Circuit), and stayed the adjudication of tinnitus rating cases affected by the Court's decision in Smith. In Smith v. Nicholson, 451 F.3d 1344 (Fed. Cir. 2006), the Federal Circuit concluded that the Court erred in not deferring to the VA's interpretation of its own regulations, 38 C.F.R. § 4.25(b) and Diagnostic Code 6260, which limits a Veteran to a single disability rating for tinnitus, regardless whether the tinnitus is unilateral or bilateral. VA then lifted the stay on the adjudication of tinnitus rating cases. The Veteran has already been assigned the maximum rating of 10 percent, under Diagnostic Code 6260, and there is no legal basis upon which to award a higher or separate schedular evaluation for tinnitus. The Board has considered all arguments advanced on behalf of the Veteran and recognizes his feeling that a higher rating is warranted. Even providing full credence to the Veteran's assertions, there is no legal basis upon which to assign a higher or separate schedular evaluation for tinnitus. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). An initial rating in excess of 10 percent for tinnitus is not warranted. In exceptional cases, an extra-schedular rating may be provided. 38 C.F.R. § 3.321. The Court has set out a three-part test, based on the language of 38 C.F.R. § 3.321(b)(1), for determining whether a Veteran is entitled to an extra-schedular rating: (1) the established schedular criteria must be inadequate to describe the severity and symptoms of the claimant's disability; (2) the case must present other indicia of an exceptional or unusual disability picture, such as marked interference with employment or frequent periods of hospitalization; and (3) the award of an extra-schedular disability rating must be in the interest of justice. Thun v. Peake, 22 Vet. App. 111 (2008), aff'd, Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). The record adequately describes the service and symptoms associated with the Veteran's service-connected tinnitus disability, including frequent, if not constant, ringing in his ears, and such are not of an exception or unusual nature. The presently assigned disability evaluation contemplates the manifestations of the Veteran's tinnitus disability; therefore, the Board finds the applicable rating criteria adequate to evaluation the Veteran's disability. Referral for extraschedular consideration is not warranted. Under Johnson v. McDonald, 762 F.3d 1362 (Fed. Cir. 2014), a veteran may be awarded an extraschedular rating based upon the combined effect of multiple conditions in an exceptional circumstance where the evaluation of the individual conditions fails to capture all the service-connected disabilities experienced; however, in this case, neither the Veteran nor the other evidence of record has suggested any such combined effect of multiple service-connected disabilities to create such an exceptional circumstance. The other service-connected disabilities are bilateral hearing loss disability and, pursuant to the Board's analysis below, PTSD, anxiety and depression. For these reasons, the Board finds that the schedular rating criteria are adequate to rate the Veteran's tinnitus, and referral for consideration of extraschedular rating is not required. The schedule is intended to compensate for average impairments in earning capacity resulting from service-connected disability in civil occupations. 38 U.S.C.A. § 1155. " Generally, the degrees of disability specified [in the rating schedule] are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability." 38 C.F.R. § 4.1. In this case, the problems reported by the Veteran are specifically contemplated by the criteria discussed above, including the effects on daily life. In the absence of exceptional factors associated with the Veteran's tinnitus, the Board finds that the criteria for submission for assignment of an extraschedular rating pursuant to 38 C.F.R. § 3.321(b)(1) are not met. See Bagwell v. Brown, 9 Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). The separate issue of entitlement to a TDIU is discussed in the remand below. Service Connection Claim-Acquired Psychiatric Disorder, to include anxiety, depression and PTSD The Veteran seeks service connection for an acquired psychiatric disorder, to include anxiety, depression and PTSD, to include as secondary to tinnitus. After a brief discussion of the laws and regulations pertaining to direct and secondary service connection, the Board will address the merits of the claim. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). In addition to the general requirements for service connection, service connection for PTSD requires: (1) medical evidence diagnosing this disability in accordance with 38 C.F.R. § 4.125(a); (2) medical evidence of a link between current symptomatology and the claimed in-service stressor; and (3) credible supporting evidence that the claimed in-service stressor actually occurred. 38 C.F.R. § 3.304(f) (2015). In Mittleider v. West, 11 Vet. App. 181, 182 (1998), the Court determined that where the record does not separate the effects of a service-connected disability from the effects of a non-service-connected disability, the effects must be attributed to the service-connected disability or a medical determination must be obtained. When it is not possible to separate the effects of the conditions, 38 C.F.R. § 3.102 requires reasonable doubt be resolved in the claimant's favor. See 61 Fed. Reg. 52698 ( Oct. 8, 1996). In other words, all signs and symptoms will be attributed to the service-connected disability. If there is at least an approximate balance of positive and negative evidence regarding any issue material to the claim, the claimant shall be given the benefit of the doubt in resolving each such issue. 38 U.S.C.A. § 5107; Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); 38 C.F.R. §§ 3.102. On the other hand, if the Board determines that the preponderance of the evidence is against the claim, it has necessarily found that the evidence is not in approximate balance, and the benefit of the doubt rule is not applicable. Ortiz, 274 F.3d at 1365. Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. 38 C.F.R. § 3.310, Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). Where a service-connected disability aggravates a nonservice-connected condition, a veteran may be compensated for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation. Allen, 7 Vet. App. at 448. In order to prevail on the issue of entitlement to secondary service connection, there must be: (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) nexus evidence, generally medical, establishing a connection between the service-connected disability and the current disability. Wallin v. West, 11 Vet. App. 509, 512 (1998). The Veteran maintains, in part, this he has psychiatric problems as a result of his service-connected tinnitus. The Board will award service connection for an acquired psychiatric disorder, currently diagnosed as depression and anxiety, as secondary to the service-connected tinnitus. The Board finds that the evidence supports an award of service connection for sleep apnea. A February 2010 VA treatment report reflects that the examining psychiatrist indicated that he had previously evaluated the Veteran in 2009. During the February 2010 evaluation, the Veteran related that he had felt anxious and had difficulty sleeping primarily due to his service-connected tinnitus. The VA psychiatrist entered an impression of depression and anxiety. He concluded that it was as likely as not these disabilities had been aggravated or caused by the Veteran's constant ringing in his ears due to his tinnitus. (See February 2010 VA treatment record, labeled as "Medical Treatment Record-Government Facility," and received into the electronic record on October 3, 2011). This opinion is supportive of the Veteran's claim for service connection for an acquired psychiatric disorder, diagnosed as depression and tinnitus, as being secondary to the service-connected tinnitus. Recognition is given to the fact that the VA psychiatrist opined that the Veteran's anxiety and depression had been caused or aggravated, nor did he provide any rationale. There are other means by which a physician can become aware of critical medical facts, notably by treating the claimant for an extended period of time, such as in the case of VA physician , who indicated that he had treated the Veteran in 2009. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). While not clearly articulated, it stands to reason that the long-history of treating the Veteran, gave the VA psychiatrist knowledge of the Veteran and his mental problems and by that basis alone his opinion is found to be probative There is also no other evidence in the record that weighs against the above-cited VA psychiatrist's opinions for secondary service connection for an acquired psychiatric disorder, currently diagnosed as depression and tinnitus. Regarding PTSD, a military personnel record confirms the Veteran's stressor, namely an aircraft accident at Shaw Air Force Base that resulted in the death of one pilot in October 1971. VA treatment reports reflect that he has been diagnosed with PTSD in the past. (See VA treatment records, dated from Mach to May 2008). Shedden, 381 F.3d at 1167; 38 C.F.R. § 3.304(f)(3). In addition, it appears that the symptoms of an acquired psychiatric disorder, currently diagnosed as depression and anxiety, cannot be separated from any other psychiatric disabilities, such as PTSD. See § 3.310 and Mittleider, 11 Vet. App. at 182. The claim is in equipoise. See 38 U.S.C.A. § 5107 (West 2014); 38 C.F.R. § 3.102 (2015). The reasonable doubt rule is for application and the claim is granted. Service connection for PTSD and an acquired psychiatric disorder, diagnosed as depression and anxiety, as secondary to the service-connected tinnitus is granted. Further, as the claim for service connection for PTSD and an acquired psychiatric disorder, currently diagnosed as depression and anxiety, is being granted, the Board finds that there would be no useful purpose in addressing the theory of direct service connection. VA has a duty to notify and a duty to assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. §§ 3.159, 3.326(a). Regarding the Veteran's claim for an initial rating in excess of 10 percent for tinnitus, as explained above, there is no dispute as to the facts and the law is dispositive of the claim. Thus, the VCAA does not apply to this matter. Mason v. Principi, 16 Vet. App. 129. The United States Court of Appeals for Veterans Claims (Court) has held that the VCAA does not affect matters on appeal when the question is limited to statutory interpretation. See Dela Cruz v. Principi, 15 Vet. App. 143 (2001). The Board finds that such is the situation in the instant case with respect to the claim for an initial rating in excess of 10 percent for tinnitus. In addition, as the Board is granting service connection for an acquired psychiatric disorder, currently diagnosed as anxiety and depression, there is no need to discuss whether the Veteran has received sufficient notice and assistance in his appeal. Even if he has not, this is inconsequential and, at most, harmless error. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Kent v. Nicholson, 20 Vet. App. 1 (2006); see also Bernard v. Brown, 4 Vet. App. 384, 392-94 (1993). ORDER An initial rating in excess of 10 percent for tinnitus is denied. Service connection for both PTSD and an acquired psychiatric disorder, currently diagnosed as anxiety and depression, as secondary to tinnitus is granted. REMAND A remand is required in conjunction with the Veteran's appeal seeking service connection for hepatitis C; disability manifested by dizziness and sleep disorder, each to include as secondary to service-connected tinnitus and PTSD and an acquired psychiatric disorder, currently diagnosed as depression and anxiety; increased compensable rating for a bilateral hearing loss disability; and, entitlement to TDIU. Specifically, to obtain VA examinations to determine the etiology of the Veteran's hepatitis C; disability manifested by dizziness and sleep disorder, diagnosed as obstructive sleep apnea and insomnia, and current severity of the Veteran's bilateral hearing loss disability. A remand is also necessary to have the RO implement the Board's award of service connection for PTSD and an acquired psychiatric disorder, diagnosed as depression and anxiety, and to schedule the Veteran for a VA examination to determine the effect that his service connected tinnitus; bilateral hearing loss disability; and, PTSD and acquired psychiatric disability, diagnosed as depression and anxiety, have on his employment. The Board will discuss each reason for remand separately below. Hepatitis C The Veteran seeks service connection for hepatitis C. He contends that his current hepatitis C had its onset during service and, thus, service connection should be awarded. The Board notes that according to Veterans Benefits Administration (VBA) Fast Letter 04-13 (June 29, 2004), the risk factors for hepatitis C include intravenous (IV) drug use, blood transfusions before 1992, hemodialysis, intranasal cocaine, high-risk sexual activity, accidental exposure while a health care worker, and various kinds of percutaneous exposure such as tattoos, body piercing, acupuncture with non-sterile needles, shared toothbrushes or razor blades. VBA letter 211B (98-110) (November 30, 1998). Veterans also may have been exposed to HCV during the course of their duties as a military corpsman, medical worker, or as a consequence of being a combat Veteran. See VBA Fast Letter 04-13 (June 29, 2004). In addition, service connection may not be granted for disability that is the result of a Veteran's own willful misconduct (e.g., drug abuse) or, for claims filed after October 31, 1990, the result of his abuse of alcohol or drugs. See 38 C.F.R. § 3.301. Willful misconduct means an act involving conscious wrongdoing or known prohibited action. A service department finding that injury, disease or death was not due to misconduct will be binding on VA, unless it is patently inconsistent with the facts and the requirements of laws administered by VA. Willful misconduct involves deliberate or intentional wrongdoing with knowledge of or wanton and reckless disregard of its probable consequences. Willful misconduct will not be determinative unless it is the proximate cause of injury, disease or death. Mere technical violation of police regulations or ordinances will not per se constitute willful misconduct. 38 C.F.R. § 3.1(n)(2015). However, willful misconduct has not been defined by the pertinent regulations to include high-risk sexual activity. VA regulations specifically provide that residuals of venereal disease are not to be considered "willful misconduct." See 38 U.S.C.A. § 105; 38 C.F.R. § 3.301(c)(1). While the Veteran does not currently suffer from a venereal disease, it appears that there is a clear intent on the part of Congress and VA to remove diseases which are the residuals of sexual contact from the definition of willful misconduct. The Veteran's service treatment records include, in pertinent part, a March 1975 service separation examination report containing the examining clinician's notation that the Veteran had had gonorrhea in May 1973 that was adequately treated with medication with no recurrence. (See May 1975 service separation examination report). On an accompanying Report of Medical History, the Veteran indicated that had received treatment for VD-syphilis, gonorrhea, etc. Post-service VA treatment records reflect that the Veteran was diagnosed with Hepatitis C in September 2005. (See VA treatment report, dated in early September 2005). This report also contains a history of the Veteran having received treatment for gonorrhea in September 1975 and a history of having engaged in prostitution and intravenous drug use (IVDU). Thus, in view of the Veteran's assertions of having had contracted hepatitis C during military service, the in-service notation of the Veteran having received treatment for gonorrhea in May 1973, and post-service treatment for hepatitis C, the Board finds he should be afforded a VA examination and nexus opinion that includes consideration of the documentation contained in the electronic record remand. 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79 (2006). Disability Manifested by Dizziness and Sleep Disorder, each to include as secondary to an acquired psychiatric disorder and tinnitus The Veteran seeks service connection for a disability manifested by dizziness and sleep disorder, each to include as secondary to his service-connected tinnitus and acquired psychiatric disorder. As noted in the decision above, service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. 38 C.F.R. § 3.310, Allen, supra. The Veteran's service treatment records reflect, in pertinent part, that he complained of dizziness with physical exertion and insomnia in October 1970. The examining clinician entered an impression of anxiety. The Veteran was prescribed Lithium. (See October 1970 service treatment record). On a March 1975 service separation examination report, the examining clinician noted that the Veteran had had occasional dizziness due to anxiety that had been, adequately treated without medicine. On an accompanying Report of Medical History, the Veteran indicated that he had had dizziness or fainting spells. He denied having had any frequent trouble sleeping. Post-service VA treatment records include a February 23, 2012 report containing the Veteran's reports of having intermittent episodes of dizziness that typically occurred when he stood up or lied down, lasted 30 seconds and were sometimes associated with nausea. During these episodes, the Veteran indicated that he felt faint. The examining clinician concluded that the cause of the Veteran's dizziness was more likely vascular than otologic. The examiner noted that the Veteran's hearing loss pattern and symptom duration were not consistent with Meniere's disease. (See February 23, 2012 VA treatment report, associated with VA treatment records, dated from December 10, 2009 to March 23, 2012, labeled as "CAPRI" and received into the Veteran's Virtual VA electronic record on April 23, 2012). The Board notes that while the VA clinician opined that the Veteran's dizziness was not otologic in nature, she did not provide any reasoning for this blanket conclusion, nor did she provide an opinion as to whether any otologic disability (i.e., hearing loss and tinnitus) had permanently aggravated any dizziness. Thus, the Board finds the February 2012 VA clinician's opinion to be of minimal probative value in evaluating the claim for service connection for a disability manifested by dizziness. Regarding the Veteran's sleep disability, a November 6, 2013 VA sleep medicine consult report reflects that the Veteran complained of having sleeping problems that were secondary to his tinnitus. (See VA treatment report, dated November 6, 2013, labeled as "CAPRI" and received into the Veteran's Virtual VA electronic record on August 31, 2015). A December 2013 sleep study reflects that the Veteran has been diagnosed as having obstructive sleep apnea and insomnia. (See December 2013 VA treatment report, received and uploaded into the Veteran's Veterans Benefits Management System (VBMS) electronic record on March 6, 2015)). A discussion as to the etiology of the Veteran's sleep disorder was not provided. The Board notes that the Veteran has not been afforded a VA examination with respect to his current claims for a disability manifested by dizziness and sleep disorder, each to include as secondary to the service-connected tinnitus and acquired psychiatric disorder, currently diagnosed as depression and anxiety. In view of the Veteran's assertions that he has had dizziness and sleeping problems secondary to his service-connected tinnitus; October 1970 service treatment record reflecting that the Veteran complained of insomnia and dizziness and impression of anxiety and the Board's award of service connection for an acquired psychiatric disorder, currently diagnosed as depression and anxiety, the Board finds that the low threshold standard of McLendon has been met. Id. Thus, the Board finds that the Veteran should be scheduled for a VA examination to determine the etiology of any disability manifested by dizziness and sleep disorder, to include as secondary to the now service-connected PTSD and acquired psychiatric disorder, currently diagnosed as depression and anxiety, and tinnitus. Increased Rating Examination-Bilateral Hearing Loss VA last examined the Veteran to determine the current severity of his service-connected hearing loss disability in February 2008. (See February 2008 VA QTC Audio examination report). The Board notes that the duty to assist does not require that a claim be remanded solely because of the passage of time since an otherwise adequate examination was conducted. VAOPGCPREC 11-95. However, given the fact that VA last examined the Veteran's hearing loss over eight (8) years ago, the RO should arrange for the Veteran to undergo a VA audio examination at an appropriate VA medical facility to determine the severity of this disability. See Green v. Derwinski, 1 Vet. App. 121, 124 (1991) (VA's statutory duty to assist the Veteran includes the duty to conduct a thorough and contemporaneous examination so that the evaluation of the claimed disability will be a fully informed one). See also Snuffer v. Gober, 10 Vet. App. 400 (1997). TDIU Claim He maintains that he is unable to obtain employment because of his depression; bilateral hearing loss; tinnitus; and, vertigo and sleep impairment, claimed as secondary to tinnitus. (See 21-8940, Veteran's Application for Increased Compensation Based on Unemployability, received by VA in November 2014. As previously noted herein, the Veteran is service-connected for tinnitus, evaluated as 10 percent disabling and bilateral hearing loss, evaluated as noncompensably disabling. In addition, the Board has granted the Veteran's service connection claim for PTSD and an acquired psychiatric disorder, currently diagnosed as anxiety and depression. The RO will assign a disability rating and effective date for this disability in the first instance. Clearly, the RO has not had the opportunity to consider the Veteran's TDIU claim in light of the Board's grant of entitlement to service connection for PTSD and an acquired psychiatric disability, currently diagnosed as depression and anxiety. Therefore, the issue of TDIU must be remanded in order for the AOJ to readjudicate the Veteran's TDIU claim based upon consideration of all of his service-connected disabilities. See Bernard v. Brown, 4 Vet. App. 384 (1993). In addition, prior to further appellate review of the claim of entitlement to TDIU, the Board finds that the Veteran should be scheduled for a VA examination to determine the effects of his service-connected disabilities, to include the now service-connected PTSD and acquired psychiatric disorder, currently diagnosed as depression and anxiety, on his employability. Accordingly, the case is REMANDED to the RO for the following action: 1. Schedule the Veteran for an appropriate VA examination to determine the likely etiology of his hepatitis C. The Veteran's electronic record, to include a copy of this Remand, must be made available to and reviewed by the examiner in conjunction with the examination. All indicated evaluations, studies, and tests deemed necessary by the examiner should be accomplished and all findings reported in detail. The examiner must confirm that the electronic record was reviewed in the examination report . In addressing the questions below, the examiner's opinion should be informed by a review of the Veteran's medical history and findings as documented upon any prior examination or treatment. The examiner should obtain from the Veteran a complete and detailed history concerning his risk factors for the development of hepatitis C, both during and after military service. The examiner should offer an opinion as to whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran's hepatitis C developed in service, or is otherwise causally or etiologically related to service, to include any symptomatology, event or incident therein; or, alternatively, is any such relationship to service unlikely (i.e., less than a 50 percent probability). Consideration should be specifically given to all inservice risk factors, such as his treatment for gonorrhea in May 1973, other than the abuse of alcohol or drugs. In providing his or her opinion, the examiner is requested to comment on the Veteran's post-service history of IVDU and prostitution. Note: The term "at least as likely as not" does not mean merely within the realm of medical possibility, but rather that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of causation or aggravation as it is to find against it. The examiner must provide rationale for all opinions given, and the factors upon which each medical opinion is based must be set forth in the report. If the examiner cannot answer any question posed without resorting to unsupported speculation, the examiner should so state, and explain why that is so. 2. Schedule the Veteran for examinations by appropriate examiners in order to ascertain the nature and likely etiology of any currently diagnosed disability manifested by dizziness and sleep disorder, currently diagnosed as obstructive sleep apnea (OSA) and insomnia. The Veteran's electronic record must be provided to the examiners for review of pertinent documents therein. In their respective examination reports, the examiners must indicate that such a review was conducted. Each examiner should elicit from the Veteran and record a complete clinical history referable to their respective disability (i.e., disability manifested by dizziness and sleep disability (OSA and insomnia)). The examiners are requested to respond to the following questions as it relates to their respective disability i.e., disability manifested by dizziness and sleep disability (OSA and insomnia)). (i) Is it at least as likely as not (50 percent or greater likelihood) that any currently diagnosed disability manifested by dizziness or sleep disability, diagnosed as OSA and insomnia, had its onset during active military service or are etiologically related to any incident therein? If the examiners conclude that their respective disability is not of service onset, then they are requested to provide an answer to the following question as it relates to their respective disability: Is it at least as likely as not (50 percent or greater likelihood) that any currently diagnosed disability manifested by dizziness or sleep disorder, diagnosed as OSA and insomnia, has been caused or aggravated by (permanently worsened beyond the natural progress of the disorder) by the service-connected tinnitus and/or PTSD and acquired psychiatric disorder, diagnosed as anxiety and depression? (ii) If it is determined that the Veteran's currently diagnosed disability manifested by dizziness and/or sleep disorder, diagnosed as OSA and insomnia, has/have been aggravated (permanently worsened) by the service-connected tinnitus and/or PTSD and acquired psychiatric disorder, currently diagnosed as anxiety and depression, the respective examiner should identify the baseline level of the specific disability and the degree of disability due to aggravation. In formulating the foregoing opinions, the VA examiners must take into consideration of the following evidence as it relates to their respective disability: (a) the Veteran's contention that his service-connected tinnitus has caused him to experience dizziness and problems sleeping; (b) October 1970 service treatment record reflecting part, that he complained of dizziness with physical exertion and insomnia. The examining clinician entered an impression of anxiety. The Veteran was prescribed Lithium. (See October 1970 service treatment record); (c) March 1975 service separation examination report containing the examining clinician's notation that the Veteran had had occasional dizziness due to anxiety that was adequately treated without medicine; (d) March 1975 Report of Medical History reflecting that the Veteran reported having had dizziness or fainting spells. He denied having had any frequent trouble sleeping; and, (e) February 2012 VA treatment record containing an examiner's assessment that the cause of the Veteran's dizziness was more likely vascular than otologic. 3. Effectuate the Board's grant of service connection for PTSD and acquired psychiatric disorder, to include anxiety and depression. This includes assigning an initial rating and effective date for this disability. 4. Schedule the Veteran for a VA audiological examination to assess the current severity of his bilateral hearing loss. Have the designated examiner review the electronic claims file, including a complete copy of this remand, for the pertinent medical and other history. Appropriate testing, including a controlled speech discrimination test (Maryland CNC) and a puretone audiometry test, should be conducted. In addition to reporting the objective test results, the examiner should fully describe the Veteran's lay accounts of functional effects caused by the hearing disability in the final report of the evaluation, such as those impacting his daily activities and employability. 5. Schedule the Veteran for an appropriate VA examination(s) to determine the effects of his service-connected tinnitus, bilateral hearing loss and the now service-connected PTSD and acquired psychiatric disorder, diagnosed as depression and anxiety, on his employability. The VA examiner(s) must review pertinent documents in the electronic record and such review should be noted in the examination report(s). All necessary tests and studies should be conducted. The appropriate examiner should respond to the following: Is it at least as likely as not (probability of 50 percent or more) that the Veteran's service-connected PTSD and acquired psychiatric disorder (depression and anxiety); tinnitus; and, bilateral hearing loss alone or together has rendered him unable to secure or follow a substantially gainful occupation? The examiner is reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as it is to find against it. 6. Thereafter, if there is evidence of unemployability due to service-connected disability(ies), and the Veteran does not meet the meet the schedular threshold criteria for a TDIU, the claim should be submitted to the Director, Compensation and Pension Service, for extraschedular consideration of a TDIU, pursuant to 38 C.F.R. § 4.16 (2015). 7. Then, the RO should readjudicate the Veteran's claims of entitlement to service connection for hepatitis C and disability manifested by dizziness and sleep disorder, each to include as secondary to tinnitus and PTSD and acquired psychiatric disorder, diagnosed as depression and anxiety; entitlement to an increased compensable rating for a bilateral haring loss disability; and, entitlement to TDIU. Readjudication of the above-cited claims should include consideration of all evidence added to the file since issuance of June 2011 and September 2015 Statements of the Case, and should reflect consideration of whether increased, staged and/or extraschedular ratings are warranted for the service-connected bilateral hearing loss disability. If any benefit sought on appeal remains denied, the Veteran and his attorney should be provided with a supplemental statement of the case (SSOC). An appropriate period of time should be allowed for response. 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 2014). ______________________________________________ JOHH J. CROWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs