Citation Nr: 1756858 Decision Date: 12/08/17 Archive Date: 12/15/17 DOCKET NO. 14-13 939 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Hartford, Connecticut 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, claimed as adjustment disorder with anxiety. REPRESENTATION Appellant represented by: Cinthia Johnson, Attorney WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD D. M. Donahue Boushehri, Counsel INTRODUCTION The Veteran served on active duty from September 2000 to June 2003, and February 2007 to November 2007. These matters come before the Board of Veterans' Appeals (Board) on appeal from an October 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Hartford, Connecticut. These issues were previously before the Board in February 2016 for a Board hearing. The Veteran testified before the undersigned Veterans Law Judge during a videoconference hearing in July 2016. A transcript is included in the electronic claims file. As reflected by the title page, the Board is expanding the scope of the Veteran's adjustment disorder claim to encompass any acquired psychiatric disorder raised by the record. Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND Initially, the Board notes that during his July 2016 Board hearing, the Veteran testified to getting psychiatric treatment back to 2008; however, VA treatment records are only dated to July 2010. As it is clear there are outstanding treatment records which may be relevant to the Veteran's claims, the Board finds a remand is necessary. The Veteran underwent a VA audio examination in August 2012. At that time, the examiner found the Veteran's current hearing loss and tinnitus are less likely than not due to noise exposure in service as his in-service audiograms were within normal limits. The Board finds that this opinion is inadequate because the opinion failed to take into account any lay statements from the Veteran regarding any symptoms the Veteran experienced following service. See Dalton v. Nicholson, 21 Vet. App. 23 (2007); see also Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). Therefore, an addendum opinion is necessary. The Veteran also underwent a VA mental health examination in July 2012. The examiner reported a diagnosis of adjustment disorder with anxiety. The examiner stated that this diagnosis is a function of his inability to adjust to a non-regimented civilian work environment and has been a problem since his discharge from the military. In a September 2012 addendum, the examiner determined the Veteran' diagnosis of an adjustment disorder was less likely than not caused by or the result of the Veteran's military experience as he did not experience significant mental health symptoms during the course of his service. The Veteran's mental health problems surfaced after he was discharged and exacerbated when he lost his job. The Board finds these opinions inadequate. Although both VA examiners indicated the Veteran's acquired psychiatric disorder was not incurred in service, neither VA examiner gave an opinion whether it was at least as likely as not his acquired psychiatric disorder was caused by his active service. Therefore, the Board finds another VA examination is necessary. Accordingly, the case is REMANDED for the following action: 1. The AOJ should obtain all outstanding, pertinent records of evaluation and/or treatment. This specifically includes any VA treatment dated prior to July 2010. The AOJ must follow the procedures set forth in 38 C.F.R. § 3.159 (c) in regard to requesting records from Federal facilities. All records and/or responses received should be associated with the claims file. 2. Upon completion of the directive above, the AOJ should refer the electronic claims file to the August 2012 VA examiner for an addendum opinion pertaining to the Veteran's diagnosed hearing loss and tinnitus. If that examiner deems it necessary or is otherwise unavailable, schedule the Veteran for an appropriate VA examination to assist in determining the nature and etiology of his diagnosed hearing loss and tinnitus. All appropriate tests, studies, and consultations should be accomplished and all clinical findings should be reported in detail. The claims file must be made available to and reviewed by the examiner, and the examination report should include discussion of the Veteran's documented medical history and assertions. The examiner is asked to answer the following questions: a) Is it at least as likely as not (50 percent probability or greater) that the Veteran's hearing loss had its onset in service or is otherwise medically related to any period of active service? b) Is it at least as likely as not (50 percent probability or greater) that the Veteran's tinnitus had its onset in service or is otherwise medically related to any period of active service? A report of the examination should be prepared and associated with the Veteran's claims file. A complete rationale must be provided for all opinions rendered that includes consideration of the Veteran's lay statements. If the examiner cannot provide the requested opinions without resorting to speculation, he/she should expressly indicate this and provide a supporting rationale as to why an opinion cannot be made without resorting to speculation. 3. Upon completion of directive #1, the AOJ should schedule the Veteran for a VA examination with an appropriate medical professional for an opinion pertaining to the diagnosed acquired psychiatric disorder. The entire claims file, to include a copy of this remand, must be made available to the designated examiner. All indicated tests and studies should be accomplished, and all clinical findings should be reported in detail. The examiner is asked to answer whether it at least as likely as not (50 percent probability or greater) that any diagnosed acquired psychiatric disorder had its onset in service or is otherwise caused by any period of active service. A report of the examination should be prepared and associated with the Veteran's claims file. A complete rationale must be provided for all opinions rendered. If the examiner cannot provide the requested opinions without resorting to speculation, he/she should expressly indicate this and provide a supporting rationale as to why an opinion cannot be made without resorting to speculation. 4. After completing the above directives and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, readjudicate the claims on appeal. If any claim remains denied, the Veteran and his attorney should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. 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 2014). _________________________________________________ Nathaniel J. Doan Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), 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) (2016).