Citation Nr: 1757061 Decision Date: 12/11/17 Archive Date: 12/20/17 DOCKET NO. 16-02 222 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to service connection for an acquired psychiatric disorder, to include as secondary to service-connected bilateral hearing loss and/or tinnitus. REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD T. Harper, Associate Counsel INTRODUCTION The Veteran served on active duty from December 1961 to February 1968 in the United States Army. This matter comes on appeal before the Board of Veterans' Appeals (Board) from a September 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. The Veteran waived a hearing before the Board in his January 2016 substantive appeal, via a VA Form 9. With regard to the service connection claim for an acquired psychiatric disorder, the Veteran requested service connection for depression; however, other psychiatric disorders have been raised by the record. In Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009), the United States Court of Appeals for Veterans Claims (Court) held that the scope of a mental health disability claim includes any mental disorder that may reasonably be encompassed by the claimant's description of the claim, reported symptoms, and other information of record. The Veteran's VA treatment records reflect treatment for anxiety and agoraphobia in addition to depression. In consideration of this holding and the other symptoms of record, the Board has recharacterized the claim as reflected on the title page above. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012). The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND The claim must be remanded for further development. The Veteran, in an August 2012 statement, notified the RO that he previously sought mental health treatment at the McAllen VA Medical Center. It does not appear that these potentially relevant records have been requested. These records should be obtained and associated with the claims file. Additionally the Veteran was afforded a VA psychiatric examination in August 2012. This psychiatric examination is inadequate for adjudication purposes. First, the Veteran has identified other VA treatment records relevant to the claim which were not available for review by the examiner at the time of examination. Second, it appears the examiner dismissed statements made by the Veteran in treatment records and in the claims file because the Veteran did not make those same statements to the examiner during the examination. The examiner should consider all of the Veteran's lay contentions, regardless of the source, when providing an etiology opinion. Third, the examiner did not address the question of whether the Veteran's service-connected bilateral hearing loss aggravates the Veteran's acquired psychiatric disorder. Next, the examiner did not discuss whether the acquired psychiatric disorder is proximately due to or aggravated by the tinnitus at all, despite the Veteran's contentions. A review of the record indicates that the examiner likely did not discuss the tinnitus because service connection for tinnitus was not yet granted at the time of the VA psychiatric examination; however, service connection for tinnitus has since been granted as of a September 2012 rating decision. Thus, the examiner should consider whether the acquired psychiatric disorder is proximately due to or aggravated by the tinnitus. Finally, the examiner's opinion on service connection was based on the characterization of the Veteran's bilateral hearing loss as "mild." A September 2012 rating decision increased the disability rating for the bilateral hearing loss from 10 percent to 40 percent. The increase in severity of the Veteran's bilateral hearing loss suggests that the hearing loss is greater than mild. When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Thus, a new VA examination should be afforded to the Veteran. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. Obtain any outstanding VA treatment records and associate them with the claims file. Specifically request the Veteran's VA mental health treatment records from the VAMC in McAllen, Texas and associate them with the claims file. 2. Then, schedule the Veteran for a VA examination to determine the nature and etiology of any currently diagnosed acquired psychiatric disability, to include as secondary to the service-connected bilateral hearing loss and/or tinnitus. The claims file, and a copy of this remand, should be made available to the examiner, who must acknowledge receipt and review of these materials in any report generated as a result of this remand. After reviewing the claims file, conducting an examination, and obtaining any necessary studies, the examiner is asked to respond to the following: (a) Identify all acquired psychiatric disorders currently shown, to include depression, anxiety, and agoraphobia. (b) Provide an opinion as to whether an acquired psychiatric disorder was proximately caused by the Veteran's service-connected bilateral hearing loss or tinnitus or the combined effect of the two conditions. (c) Provide an opinion as to whether an acquired psychiatric disorder was aggravated by the Veteran's service-connected bilateral hearing loss or tinnitus or the combined effect of the two conditions. (d) Provide an opinion as to whether each currently shown acquired psychiatric disorder had its onset during active service or is otherwise related to it. **In forming the requested opinions, the examiner is asked to consider all evidence of record, specifically to include the Veteran's lay contentions. It is also noted that service connection for tinnitus is in effect, and the Veteran's hearing loss is currently evaluated as 40 percent disabling.** The examiner should provide an explanation for all conclusions reached. All of the Veteran's contentions contained in the claims file, whether or not expressed during the examination, should be considered by the examiner. 3. Then readjudicate the appeal. If the benefits sought on appeal remain denied, the Veteran and his representative should be furnished with a supplemental statement of the case and be given the opportunity to respond. Thereafter, the case should then be returned to the Board for further appellate consideration, if otherwise in order. 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. §§ 5109B, 7112 (2012). _________________________________________________ S. B. MAYS 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).