Citation Nr: 1801358 Decision Date: 01/09/18 Archive Date: 01/19/18 DOCKET NO. 12-17 033 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office in Nashville, Tennessee THE ISSUES 1. Entitlement to service connection for post-traumatic stress disorder (PTSD). 2. Entitlement to service connection for an acquired psychiatric disorder other than PTSD, to include mood disorder and unspecified schizophrenia. 2. Entitlement to service connection for bilateral hearing loss. 3. Entitlement to service connection for a low back disorder. 4. Entitlement to service connection for partial blindness, left eye. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Suzie Gaston, Counsel INTRODUCTION The Veteran served on active duty from July 1967 to July 1971. This matter comes before the Board of Veterans' Appeals (hereinafter Board) on appeal from rating decisions by the Nashville, Tennessee, Regional Office (RO). By a rating action in February 2010, the RO denied the Veteran's attempt to reopen his claim of entitlement to service connection for emotional instability, nervous condition and insomnia (claimed as mental disorder). Subsequently, in April 2012, the RO denied the Veteran's attempt to reopen the claim of entitlement to service connection for partial blindness. That rating action also confirmed the previous denial of service connection for bilateral hearing loss and service connection for degenerative disc disease (claimed as low back pain); the RO also denied service connection for PTSD. The Veteran perfected a timely appeal to those decisions. In an April 2015 decision, the Board determined that new and material evidence had been submitted and reopened the claims of service connection for bilateral hearing loss, service connection for an acquired psychiatric disorder, to include PTSD, and service connection for partial blindness. The Board then remanded the case to the RO for further evidentiary development and a de novo review of the evidence. Following the requested development, a supplemental statement of the case (SSOC) was issued in July 2017. The Board finds that there was substantial compliance with its remand; thus, it may proceed with a decision at this time. See Stegall v. West, 11 Vet. App. 268 (1998). The Board notes that when a claimant makes a claim, he is seeking service connection for symptoms regardless of how those symptoms are diagnosed or labeled. As such, the Board has recharacterized the issue of entitlement to service connection for a nervous condition, insomnia and PTSD as entitlement to service connection for an acquired psychiatric disorder. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). The issues of entitlement to service connection for a low back disorder, service connection for bilateral hearing loss, and service connection for an acquired psychiatric disorder, including unspecified schizophrenia and mood disorder, are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. The Veteran does has not had PTSD from any time contemporaneous to when he filed his claim to the present. 2. The Veteran's left eye disorder did not have onset during active service and was not caused by active service. CONCLUSIONS OF LAW 1. The criteria for service connection for PTSD have not been met. 38 U.S.C. §§ 1110, 1131, 1154, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304(f), 4.125 (2017). 2. The criteria for service connection for a left eye disorder, including partial blindness, have not been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Laws and Regulations. Service connection may be granted for a disability "resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty." 38 U.S.C. § 1131. To establish a right to compensation for a present disability, a Veteran must show "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service." Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Holton v. Shinseki, 557 F.3d 1362 (2009). In addition, the law provides that, where a veteran served ninety days or more of qualifying service and a an organic disease of the nervous system, to include sensorineural hearing loss, becomes manifest to a degree of 10 percent or more within one year from the date of termination of such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. While the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. Id. To establish entitlement to service connection for PTSD, the record must contain the following: (1) medical evidence diagnosing PTSD; (2) credible supporting evidence that the claimed in-service stressor actually occurred; and (3) medical evidence of a link between current symptomatology and the claimed in-service stressor. 38 C.F.R. § 3.304 (f). A diagnosis of PTSD must be established in accordance with 38 C.F.R. § 4.125 (a), which mandates that, for VA purposes, all mental disorder diagnoses must conform to the American Psychiatric Association 's Diagnostic and Statistical Manual for Mental Disorders. 38 C.F.R. § 3.304 (f). The Board recognizes that the Veterans Benefits Administration is now required to apply concepts and principles set forth in DSM-5; however, the Secretary of VA has specifically indicated that DSM-IV is still to be applied by the Board for claims pending before it. 79 Fed. Reg. 45094 (Aug. 4, 2014). The Veteran can provide competent reports of factual matters of which he has first-hand knowledge, such as experiencing pain in service, reporting to sick call, being placed on limited duty, and undergoing physical therapy. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a lay person is competent to identify the medical condition (noting that sometimes the lay person will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer), (2) the lay person is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. See Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). Similarly, laypersons are competent to diagnose and provide nexus opinions to some extent, notably where the diagnosis or opinion is not of a complex nature. Id, see also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. II. Factual background & Analysis-S/C-PTSD. The Veteran maintains that he developed PTSD as a result of his experiences in Vietnam. The Veteran reported one incident that occurred in December 1968. He went up with the crew as a crew chief because another crew chief had to go home for an emergency. Their helicopter was shot and the door gunner was hit by pieces of the ship. They had to put it down in the middle of a field while they called for someone to come and get them. They were being fire up by someone and he had to tackle an infantryman who froze in his tracks. Another incident, the Veteran reported occurred on January 1, 1970. He stated that it became a habit to be shot at night on the base when they were asleep by mostly rockets. They would wait until the base of asleep they had to learn how to roll over onto the floor until they stopped usually to reload. They had to get to a bunker somewhere hopefully close to their hootch or they would end up like one new guy who got part of his arm and leg blown and then amputated. After careful review of the evidentiary record, the Board concludes that the Veteran is not entitled to service connection for PTSD. The record indicates that the Veteran was stationed in Vietnam from March 1968 to October 1969 and from February 1970 to July 1971. His military occupational specialty (MOS) was as helicopter repairman/aircraft mechanic; he was awarded the VSM, the Aircraft crewman badge, and the VCM with device. The STRs do not reflect any diagnosis of PTSD. The Veteran was afforded a VA examination for PTSD in September 2011. The examiner stated that the Veteran's symptoms do not meet the diagnostic criteria for PTSD under DSM-IV criteria; he also stated that the Veteran does not have a mental disorder that conforms to DSM-IV criteria. In May 2017, JSRRC indicated that they had reviewed the history submitted by the 3rd Squadron, 4th Cavalry of the Calendar year 1968. The history documented that during the period from November 1st through the 24th, 1968, two UH-1D helicopters were shot down and destroyed immediately, another one gained some altitude but was forced down by ground fire and a fifth went in to extract the troopers and was shot down and destroyed killing three US personnel and wounding twelve. They also documented that during December 1968, troop D received fire for 10 minutes resulting in no casualties. Based on the history provided by JSRRC, it was determined that the Veteran met the stress of "Fear of hostile military or terrorist activity." Another VA examination for evaluation of PTSD was conducted in June 2017. At that time, it was noted that the Veteran denied history of psychiatric hospitalization and outpatient mental health treatment. The examiner noted that records indicate that he has a long history of mental health treatment, with diagnoses including psychotic disorder NOS, depression, anxiety and a notation of schizotypal personality traits. Following a mental status examination, the Veteran was diagnosed with unspecified schizophrenia spectrum and other psychiatric disorder. The examiner stated that the Veteran does not meet the criteria for PTSD under DSM-V criteria. In light of the above, the Board finds that the claim for service connection for PTSD fails. Here, while the Veteran has been found to have a stressor which could qualify within the DSM-5, he does not meet the other criteria necessary for such a diagnosis. Significantly, the Board finds that the September 2011 and June 2017 examiner opinions hold greater probative weight than the VA clinic record assessments which tend to support a PTSD diagnosis. While holding some probative value, the clinic record assessments which specifically provide a PTSD diagnosis do not contain any rationale as to how the DSM-V criteria have been met. In contrast, the VA and DBQ examination reports contain extensive analysis concerning the factual basis underlying their rationale with citation to specific facts supporting their conclusions. None of the VA psychiatric treatment records that diagnosed the Veteran with PTSD had such extensive interviews and testing. In so holding, the Board has considered the Veteran's lay contentions. As discussed above, the VA examiner opinions, to a certain extent, discredited the Veteran's descriptions concerning the claimed onset, nature and etiology of his psychiatric symptoms. Thus, the Board finds that the September 2011 and June 2017 examiner's opinions are based on an accurate factual predicate - the stressor event was conceded but the Veteran is shown to be an unreliable historian. With regard to the actual diagnosis of PTSD, lay persons are not categorically incompetent to speak on matters of medical diagnosis or etiology. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). The Board must consider the type of condition specifically claimed and whether it is readily amenable to lay diagnosis or probative comment on etiology. See Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007). In this regard, the Federal Circuit recently held that "PTSD is not the type of medical condition that lay evidence . . . is competent and sufficient to identify." Young v. McDonald, 766 F.3d 1348, 1352-53 (Fed. Cir. 2014). Regardless, the Board acknowledges the Veteran is competent to report psychiatric symptoms both during and after service. See 38 C.F.R. § 3.159 (a) (2); Jandreau, 492 F.3d at 1377 (discussing that Veteran is competent to report a contemporaneous medical diagnosis); Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (discussing general competency of a Veteran to report psychiatric symptoms). That notwithstanding, in the instant case, the Board has found the Veteran's lay statements are less probative or persuasive than the post-service medical evidence finding that the Veteran does not meet the DSM-IV or DSM V criteria for PTSD. Moreover, although the Veteran is competent to describe his psychiatric symptoms, by regulation, PTSD is a condition that can only be diagnosed by a medical professional, according to 38 C.F.R. § 3.304 (f). In summary, although there is credible evidence corroborating the existence of reported stressors, the attack on the helicopters and resulting casualties, the most probative evidence of record establishes that there is no current diagnosis of PTSD attributable to this verified in-service stressor. Accordingly, the preponderance of the evidence is against the Veteran's service connection claim for PTSD. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). III. Factual background & Analysis-S/C-Partial blindness, left eye. With regard to the claim of entitlement to service connection for a left eye disorder, including partial blindness, the Veteran maintains that this is the result of the inservice helicopter crash. As an initial matter, the Board notes that congenital or developmental defects, such as refractive error of the eyes, are not diseases or injuries within the meaning of applicable legislation and, thus, are not disabilities for which service connection may be granted. 38 C.F.R. § 3.303 (c); see also 38 C.F.R. § 4.9; Beno v. Principi, 3 Vet. App. 439 (1992). Refractive errors are defined to include astigmatism, myopia, hyperopia, and presbyopia. See M21-1, Part III, Subpart iv, 4.B.10.d. As such, service connection is not available for and loss of vision attributable to refractive errors. Currently, the Veteran has diagnoses of traumatic optic neuropathy, OS, simple hyperopia OD, compound hyperopic astigmatism OS with presbyopia OU, dry eye syndrome OU, posterior blespharitis OU, and cataracts not affecting vision OU. With regard to the in-service injury requirement, the Veteran has stated that he sustained a left eye injury during a helicopter crash. However, his STRs do not reflect any eye complaints. At his separation examination in April 1971, the Veteran reported a history of eye trouble and chronic astigmatism; clinical evaluation of the eyes was reported as normal, and visual acuity was 20/20. Submitted in support of the Veteran's claim was a medical statement dated in September 1982, Dr. T. V. Scott reported that an ophthalmological evaluation revealed two healed laceration and visual loss following a traumatic accident in 1972. Best correctable vision was 20/20 in the right eye and 20/50 in the left eye. The impression was optic atrophy, O. S., secondary to traumatic retrobulbar damage, and refractive error. In a medical certificate, dated May 17, 1983, a VA examiner noted that the Veteran suffered from "partial blindness" in the left eye since 1971. It was noted that the Veteran attributes the onset of his disability to a helicopter crash. VA progress notes dated from May 2014 to June 2015 reflect a past ocular history of traumatic optic atrophy OS with OAG due to a telephone pole. During a clinical visit in May 2014, the Veteran complained of blurred near vision. It was noted that the Veteran had a past history of traumatic optic atrophy of the left eye with OAG, due to a telephone pole injury in 1974. The pertinent diagnoses were traumatic optic atrophy left eye with cupping, hypertopia and presbyopia OU, mild cataracts OU, and posterior vitreous detachment OU. An optometry note dated in April 2015 related that the Veteran was seen for routine eye examination. He again reported suffering an injury from telephone pole in the left eye in 1974. The assessment was traumatic optic neuropathy, OS, simple hyperopia OD, compound hyperopic astigmatism OS with presbyopia OU, dry eye syndrome OU, posterior blespharitis OU, cataracts not affecting vision OU , posterior vitreous detachment OU, and epiretinal membrane OS. As noted above, refractive error is not a disease or injury within the meaning of applicable legislation for disability compensation purposes and may not be service connected. See 38 C.F.R. § 3.303 (c). In addition, the Board concludes that service connection is not warranted for disability of the left eye, including partial blindness of the left eye. Significantly, the Veteran's post-service medical records do not reflect any documentation of a left eye disorder until 1982, more than 11years after the Veteran's separation from active service in 1971. The lapse in time between service and the first diagnosis cannot be a sole determinant in denying a claim, but it can be a factor weighed in making such a determination. See Maxson v. West, 12 Vet. App. 453, 459 (1999), aff'd sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000); see also Forshey v. Principi, 284 F.3d 1335, 1358 (Fed. Cir. 2002) (en banc). Moreover, although the post-service treatment records include a diagnosis of traumatic optic neuropathy, OS, left eye cataract, and epiretinal membrane OS none of these records suggests any causal relationship between the left eye conditions and the Veteran's military service. Rather, the records indicate that the Veteran sustained the injury to his left eye due to a telephone pole injury in 1974, after his discharge from service. The Board has considered the arguments advanced by the Veteran that his left eye condition is related to his service. However, the Board has found the Veteran's lay statements regarding the onset of his left eye injury to be not credible. Significantly, in the September 1982 medical statement, Dr. T. V. Scott reported that an ophthalmological evaluation revealed two healed laceration and visual loss following a traumatic accident which the Veteran reported occurred in 1972. When seen in 1983, the Veteran reported that the accident occurred in service in 1971. However, several VA treatment notes reflect that the Veteran reported that the telephone incident occurred in 1974. Consequently, the Veteran's opinion that he has an eye disorder that had onset during or was caused by service is not competent evidence. Although lay persons are competent to provide opinions on some medical issues, the diagnosis and etiology of a left eye condition, including partial blindness, is complex and falls outside the realm of common knowledge of a lay person. See Kahana v. Shinseki, 24 Vet. App. 428 (2011); Jandreau, 492 F.3d at 1377. Therefore, the Veteran is not considered competent (meaning medically qualified) to address the etiology of his claimed left eye disorder. As the preponderance of the evidence is against the claim for left eye disorder, including partial blindness, the benefit of the doubt rule is not applicable. See 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). ORDER Service connection for PTSD is denied. Service connection for partial blindness of the left eye is denied. REMAND After examining the record, the Board concludes that further assistance to the Veteran is required in order to comply with the duty to assist as mandated by 38 U.S.C. § 5103A. VA has a duty to ensure any medical examination or opinion it provides is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (overruled on other grounds, Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013)). " An opinion is adequate where it is based upon consideration of the Veteran's prior medical history and examinations and also describes the disability, if any, in sufficient detail so that the Board's evaluation of the claimed disability will be a fully informed one." Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007) (internal citations and quotations omitted). A. S/C-Acquired psychiatric disorder, including unspecified schizophrenia. The Veteran maintains that he developed a psychiatric disorder as a result of his experiences in Vietnam. In an appellant's post-remand brief, dated in October 2017, the Veteran's representative argued that the medical opinion provided by the examiner following the June 2017 examination is ambiguous and failed to resolve the questions addressed in the Board's April 2015 remand. In this regard, the Board notes that the STRs indicate that the Veteran was seen and evaluated for complaints of nervousness in March 1970; the impression was anxiety. At his separation examination, in April 1971, the Veteran was diagnosed with emotional instability, chronic moderate EPTS; it was noted that it had been recommended in October 1970 to be discharged for unsuitability by a psychiatrist. Post service treatment records indicate that the Veteran was admitted to a VA hospital in May 1983 and was diagnosed with adjustment disorder. Subsequent treatment records, VA as well as private treatment reports, show that the Veteran received clinical attention and treatment for various psychiatric conditions. Significantly, VA progress notes dated from May 2014 to June 2015 reflect ongoing clinical evaluation and treatment for a psychiatric disorder, variously diagnosed as depression, mood disorder, a history of major depressive disorder (MDD) and schizotypal personality disorder. However, none of these examiners attributed the Veteran's condition to military service. The Board observes that the June 2017 DBQ examination report reflect a diagnosis of unspecified schizophrenia spectrum. The examiner stated that it is difficult to determine if the unspecified schizophrenia spectrum and other psychiatric is the result of an inservice stressor related event. Therefore, it is less likely than not that the Veteran's diagnosed mental disorder is a result of an inservice stressor related event. The examiner explained that records document a history of psychotic and paranoid symptoms; however, it is difficult to determine when they started. The examiner noted that other records only document depression, while other document no mental health concerns at all, and the noted that the Veteran has extreme variability in his self-report over the years in regards to his mental health symptoms. As such, his credibility as an accurate historian, coupled with his current delusional thought process is questionable. He stated, therefore, that it seemed unlikely that the current condition is related to an inservice stressor, but he could not say that with 100 percent certainty. The examiner concluded that it is less likely than not that the Veteran's diagnosed mental disorder is a result of an inservice stressor related event. Given the uncertainties (stating that it is difficult to determine when his psychiatric conditions started) noted above as to the etiology of the Veteran's acquired psychiatric disability, the Board agrees with the Veteran's representative that the medical evidence of record is insufficient to make a decision on the psychiatric claim. Therefore, the Board finds that a remand is necessary in order to obtain an adequate opinion regarding the nature and etiology of the Veteran's claimed acquired psychiatric disorder. B. S/C-Bilateral hearing loss. Pursuant to the Board's April 2015 remand, the record reflects that an audiological evaluation was scheduled on June 2, 2017, but the Veteran failed to report for the examination. In email correspondence with the AMC on June 7, 2017, the Veteran contacted the VA and acknowledged that he had missed two scheduled examinations; he indicated that he wished to reschedule the examinations and provided the individual with the address of the relative with whom he was currently residing. Subsequently, in a note from Veterans Evaluation Services (VES), dated June 22, 2017, the VA was notified that the Veteran did not attend an audiological evaluation which was scheduled for June 22, 2017. The July 2017 Supplemental Statement of the Case indicated that the Veteran had failed to appear for his examinations. In his appellant's post-remand brief, dated in October 2017, the Veteran's representative maintained that the Veteran did not knowingly fail to report for a compensation examination in connection with his appeal for service connection for a bilateral hearing loss. The representative maintained that the Veteran remained willing and able to report for any necessary examination to support his claim. Upon review of the file, the Board finds that there is no indication in the claims file that the Veteran was properly notified of the audiological examinations. There is no indication that an examination notice was sent to the Veteran at his address of record. Given the fact that the Veteran did show up for June 2017 contract psychiatric and spine examinations and that no other mail sent to the Veteran's address of record has been returned as undeliverable; it is possible that that the Veteran was not provided with adequate notice regarding the audiological examinations. Given the uncertainty regarding whether the Veteran was ever notified of his scheduled examinations, a remand is warranted to afford the Veteran another opportunity to report for VA audiological examinations. C. S/C-Low back disorder. As noted above, in April 2015, the Board remanded the case to the RO for additional evidentiary development. Specifically, the April 2015 remand directives instructed the RO to provide the Veteran with a VA examination and obtain an opinion regarding the etiology of his current low back disability. Significantly, the VA examiner was asked to do the following: (a) Identify all diagnosable back disabilities; (b) For any diagnosed back disability, state whether the evidence clearly and unmistakably establishes that the Veteran's back disability preexisted service; (c) If any diagnosed back disability clearly and unmistakably (obvious, manifest, and undebatable) existed prior to service, is the disorder a congenital defect or a disease; and (d). I f the examiner determines that any back disability is a congenital defect, the examiner is asked to indicate whether it is at least as likely as not (a probability of 50 percent or greater) that there was a superimposed disease or injury in service that resulted in additional disability; ( e) If the examiner determines that the Veteran's pre-existing back disability is not a congenital defect but rather a congenital disease or disability, was it clearly and unmistakably not aggravated by service. In compliance with the Board's remand, the Veteran was afforded a VA examination of the back in June 2017. However, in the instructions to the examiner, the RO erroneously asked the examiner to state whether "the Veteran's medical records support that the claimed back condition, which clearly and unmistakably existed prior to service, was aggravated beyond its natural progression by an inservice illness, event, or injury. Following examination of the Veteran and a review of the claims file, the examiner concluded that the back condition, which clearly and unmistakably existed prior to service, was clearly and unmistakably not aggravated beyond its natural progression by an inservice injury, event or illness. The rationale provided by the examiner was that the Veteran's back condition was less likely than not aggravated beyond its natural progression by an inservice event as the back condition was not preexisting. This statement is contradictory to the opinion provided by the examiner. Upon review of the examination report and the addendum, the Board finds that, the examiner did not address all the questions posed by the Board. Specifically, the examiner failed to address the question of whether the back condition existed prior to service; and, if so, whether it was aggravated by service. The Board notes that once VA undertakes the effort to provide an examination when developing a service connection claim, the examination must be an adequate one. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). As the examiner failed to address some of the fundamental questions posed by the Board in its Remand, the Board finds this examination to be inadequate and noncompliant with the remand. Therefore, a remand is required to obtain an additional VA medical opinion. Stegall v. West, 11 Vet. App. 268, 271 (1998). The Board has not ignored the argument provided by the Veteran's representative in October 2017 as to the adequacy of the examination, or the grounds that the representative based the argument on. As the Board is remanding the claim for another examination, it would be premature to specifically address the argument at present. To ensure that VA has met its duty to assist the claimant in developing the facts pertinent to his claim and to ensure full compliance with due process requirements, the case is REMANDED to the agency of original jurisdiction (AOJ) for the following actions: 1. Ensure the Veteran is scheduled for a VA psychiatric examination, by an examiner who has not previously examined him, to determine the etiology of any psychiatric disorder, other than PTSD, to include the diagnoses of mood disorder and unspecified schizophrenia. The examiner must review the claims file in conjunction with the examination. The examiner must include a complete rationale to support any opinion provided. The examiner must accomplish the following: For each currently diagnosed acquired psychiatric disorder other than PTSD-to include mood disorder and unspecified schizophrenia, the examiner must provide an opinion as to whether it is at least as likely as not (i.e., a 50 percent or greater probability) that any such disorder had its onset during service, or was caused by the Veteran's military service. The examiner must provide a rationale to support any and all conclusions reached. 2. Thereafter, ensure that the Veteran scheduled for a VA audiological examination to assess the nature and etiology of his bilateral hearing loss. The claims file and a copy of this remand must be reviewed by the examiner. The examiner is asked to address whether it is at least as likely as not (50 percent or greater degree of probability) that the Veteran's hearing loss is causally related to military service, to include in-service noise exposure. In providing the requested opinion, the examiner should address the Veteran's in-service audiograms, to include the medical significance of any documented shift in hearing acuity, and the Veteran's lay statements. In doing so, the examiner should presume the Veteran is competent to report matters within his own personal knowledge, including exposure to loud noise and diminished hearing. The examiner should note that the absence of in-service evidence of a hearing disability during service is not always fatal to a service connection claim. Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). The examiner should not rely solely on the absence of hearing loss in service as a basis for any opinion. Evidence of a current hearing loss disability and a medically sound basis for attributing that disability to service may serve as a basis for a grant of service connection for hearing loss where there is credible evidence of acoustic trauma due to significant noise exposure in service, post-service audiometric findings meeting the regulatory requirements for hearing loss disability for VA purposes, and a medically sound basis upon which to attribute the post-service findings to the injury in service. Hensley v. Brown, 5 Vet. App. 155, 159 (1993). The examiner must provide complete rationales for all conclusions reached. 3. The AOJ should refer the Veteran's claims file to a suitably qualified examiner, other than the one that provided the opinion in June 2017, for a medical opinion as to the nature and etiology of his currently diagnosed low back disorder. A physical examination is only needed if deemed necessary by the examiner. The Veteran's claims file, to include this remand, must be reviewed by the examiner. Then, the examiner must address the following: a. Identify all diagnosable back disabilities. b. For any diagnosed back disability, state whether the evidence establishes that the Veteran's back disability preexisted service. The examiner must provide a rationale for any determination made. If the examiner determines that the back disability preexisted service, the examiner must explain how confident he or she is in this determination (how sure he or she is of the opinion). The Board is not asking for a statement in terms of "as likely as not" as this is not the correct legal standard for this determination. If the opinion is stated in "as likely as not" language, the opinion will be deemed in adequate and the case returned for another opinion. c. If any diagnosed back disability existed prior to service, is the disorder a congenital defect or a disease. [Note: a defect is generally not considered capable of improving or deteriorating while a disease generally refers to a condition that is considered capable of improving or deteriorating]. d. If the examiner determines that any back disability is a congenital defect, the examiner is asked to indicate whether it is at least as likely as not (a probability of 50 percent or greater) that there was a superimposed disease or injury in service that resulted in additional disability. e. If the examiner determines that the Veteran's pre-existing back disability is not a congenital defect but rather a congenital disease, was it not worsened beyond its natural progression during active service. The Board is aware that it is asking for an opinion in the negative (i.e. was it not worsened beyond its natural progression) and this is intended. If the examiner determines that it was not worsened beyond its natural progression during service, then the examiner must explain the confidence he or she has in this opinion (how sure the examiner is of the opinion). The Board is not asking for a statement in terms of "as likely as not" as this is not the correct legal standard for this determination. If the opinion is stated in "as likely as not" language, the opinion will be deemed in adequate and the case returned for another opinion. f. If the examiner determines the Veteran's back disability did not pre-exist service, state whether it is at least as likely as not (50 percent or greater degree of probability) that any back began in service, was caused by service, or is otherwise related to military service. In rendering the requested opinions, the examiner should address Dr. Watterson's August 2011 opinion, that it was possible that the degenerative arthritis of the Veteran's spine was a sequelae of his reported in-service back injury, and the February 2012 VA examiner's statement that the Veteran's significant family history of arthritis was one factor that suggested that the Veteran's back pain and DDD had multiple causes. 4. To help avoid future remand, the AOJ must ensure that all requested actions have been accomplished in compliance with this remand. If any action is not undertaken, or is taken in a deficient manner, appropriate corrective action should be taken. See Stegall v. West, 11 Vet. App. 268 (1998). 5. Thereafter, re adjudicate the Veteran's claims that are the subject of this Remand. If any determination remains unfavorable to the Veteran, he and his representative should be furnished an SSOC, which includes a summary of additional evidence submitted, and any additional applicable laws and regulations. The SSOC must provide the reasons and bases for the decision reached. Thereafter, the Veteran and his representative should be given the opportunity to respond before returning the case to the Board. The Veteran has the right to submit additional evidence and argument on the matter 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 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). ____________________________________________ JAMES G. REINHART Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs