Citation Nr: 1754062 Decision Date: 11/28/17 Archive Date: 12/07/17 DOCKET NO. 11-17 205 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUES 1. Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD). 2. Entitlement to an initial increased disability rating for bilateral hearing loss, currently rated as 10 percent disabling. 3. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD J. Smith-Jennings, Associate Counsel INTRODUCTION The Veteran served on active duty from October 1966 to September 1968. These matters come to the Board of Veterans' Appeals (Board) on appeal from a June 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Oakland, California. The Veteran testified at a hearing before the undersigned Veterans Law Judge (VLJ) via video conference in September 2017. A transcript of the hearing is of record. The issue of entitlement to a TDIU was reasonably raised during the September 2017 Board hearing as a component of the initial rating claim on appeal. See Rice v. Shinseki, 22 Vet. App. 447 (2009). The Board is expanding the Veteran's pending claim to one of entitlement to service connection for an acquired psychiatric disorder to include PTSD. See Clemons v. Shinseki, 23 Vet. App. 1 (2009) (when a claimant makes a claim, he is seeking service connection for symptoms regardless of how those symptoms are diagnosed or labeled). The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND Unfortunately, a remand is required in this case. While the Board regrets the delay, it is necessary to ensure that there is a complete record upon which to decide the Veteran's claims. The Veteran asserts that he developed PTSD as a result of his experiences during service. He reports a number of in-service stressors. These stressors include: (1) hearing small weapons fire and bomb explosions; (2) experiencing close encounters while driving around the Korean Demilitarized Zone at night; and (3) receiving letters from family regarding his wife's infidelity while he was away on active duty. The Veteran also asserts that the currently assigned rating does not accurately reflect the severity of his bilateral hearing loss disability. Addressing the Veteran's claim for service connection for PTSD, the Board acknowledges that the evidence of record includes a November 2016 VA examination report in which the examiner diagnosed the Veteran with PTSD and unspecified depressive disorder and opined that the claimed condition was at least as likely as not incurred in or caused by the claimed in-service injury, event, or illness. However, the examiner did not provide a rationale for her opinion. Therefore, the Board finds the February 2015 VA opinion inadequate in this regard and an additional opinion is needed prior to adjudication of the claim. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate) see also Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (most of the probative value of a medical opinion comes from its reasoning, and neither an examination report nor a medical opinion are entitled to any weight if it contains only data and conclusions). The evidence of record otherwise includes a March 2017 VA examination report in which the examiner opined that the Veteran's claimed condition was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. However, the examiner did not adequately address the aforementioned positive VA examiner opinion of record in reaching his conclusion. Furthermore, the March 2017 examiner based his opinion in part on a lack of evidence of continuity of symptomatology since service. However, the Veteran's September 2017 testimony seems to suggest that he has continually experienced depression since service due to his wife's infidelity. Turning to the Veteran's claim for an increased disability rating for bilateral hearing loss, generally, VA is required to assist the Veteran in obtaining evidence necessary to support his claim and afford an examination to assess the current nature, extent, and severity of a service-connected disability when there is evidence that the Veteran's level of disability worsened since the last examination. See 38 U.S.C. § 5103A (2012); Palczewski v. Nicholson, 21 Vet. App. 174, 181 (2007); Snuffer v. Gober, 10 Vet. App. 400, 403 (1997). The last VA examination to assess the severity of the Veteran's bilateral hearing loss was conducted in November 2016. The Veteran indicated during the September 2017 hearing that his bilateral hearing loss has since gotten worse. Therefore, the Board finds that an additional VA examination must be provided on remand. Lastly, as the decisions on the service connection and increased rating claims remanded herein will impact the decision on the TDIU claim, they are inextricably intertwined. Therefore, the TDIU claim must also be remanded. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (holding that where a claim is inextricably intertwined with another claim, the claims must be adjudicated together in order to enter a final decision on the matter). Accordingly, the case is REMANDED for the following action: 1. Request that the Veteran provide or authorize VA to obtain records of his relevant treatment that have not yet been associated with the claims file, and associate with the claims file any outstanding VA treatment records. 2. Schedule the Veteran for a VA psychiatric examination to determine the nature, etiology, and date of onset of any psychiatric disorders that were diagnosed during the appeal period, to include PTSD, anxiety, and unspecified depressive disorder. The claims file should be made available to the examiner and review of the file should be noted in the requested report. The examiner should record the full history of the identified disorders, including the Veteran's competent account of his symptoms. (a) Please identify all current psychiatric disorders. (b) For each diagnosed psychiatric disorder, is it at least as likely as not (50 percent probability or more) that it had its onset in service or within one year of his separation from service, is related to the Veteran's reported in-service stressors, or is otherwise related to service? (c) In formulating the requested opinions, please specifically acknowledge and discuss the psychiatric diagnoses of record, including PTSD, anxiety, and unspecified depressive disorder. The examiner is specifically asked to address the November 2016 positive VA examiner opinion of record regarding PTSD and the Veteran's reports of continuity of symptomatology since service, particularly insofar as they relate to learning of his wife's infidelity. In determining whether the Veteran meets the criteria for a current psychiatric diagnosis, please consider medical and lay evidence dated both prior to and since the filing of the February 2010 claim for service connection. Please note that although the Veteran may not meet the criteria for a psychiatric diagnosis at the present time, diagnoses made prior to and since the date of claim filing meet the criteria for a "current" diagnosis. Please also note that the Veteran is competent to report symptoms, treatment, and injuries, and that his reports must be taken into account in formulating the requested opinions. If any of the Veteran's previous diagnoses (anxiety, PTSD, unspecified depressive disorder) cannot be validated, a detailed explanation should be provided. All findings and conclusions should be supported with a complete rationale and set forth in a legible report, which should reflect the examiner's consideration and analysis of both the medical and lay evidence of record. If it is not possible to provide an opinion without resort to speculation, the reason that is so should be explained, indicating whether there is additional evidence that could enable an opinion to be provided or whether the inability to provide an opinion is based on the limits of medical knowledge. 3. Schedule the Veteran for a VA audiological examination to assess the severity of his bilateral hearing loss. All necessary tests should be conducted, including pure tone testing and word recognition testing using the Maryland CNC word list. The claims file should be made available to the examiner and review of the file should be noted in the requested report. 4. Send the appropriate Veterans Claims Assistance Act (VCAA) notice advising the Veteran and his representative of the requirements for substantiating a TDIU and ask the Veteran to complete a VA Form 21-8940 (Veteran's Application for Increased Compensation Based on Unemployability) to provide relevant information concerning his work and educational history. 5. Notify the Veteran that he may submit statements from himself and others who have first-hand knowledge as to the impact that his service-connected disabilities have had on his ability to work. 6. Readjudicate the claims on appeal. If the benefits requested on appeal are not granted in full, the Veteran and his representative should be furnished a supplemental statement of the case and provided an opportunity to respond thereto. The case should then be returned to the Board for further appellate consideration, if in order. By this remand, the Board intimates no opinion as to any final outcome warranted. 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). 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. §§ 5109B, 7112 (2012). _________________________________________________ S.C. KREMBS Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (2012), 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) (2017).