Citation Nr: 1802408 Decision Date: 01/11/18 Archive Date: 01/23/18 DOCKET NO. 12-05 368 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for an acquired psychiatric disorder, to include PTSD and depressive disorder. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD A. Yaffe, Associate Counsel INTRODUCTION The Veteran had active service from April 1973 to April 1976. These matters are before the Board of Veterans' Appeals (Board) on appeal of November 2011 and May 2014 rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO), in Columbia, South Carolina. In November 2012, the Veteran testified on the issue of service connection for bilateral hearing loss before a Veterans Law Judge (VLJ). In March 2014, the Board remanded the claim for bilateral hearing loss for further development, to include affording the Veteran a VA audiological examination. Because the VLJ who conducted the 2012 hearing is no longer employed by the Board, the Veteran was provided the opportunity to have an additional hearing. In October 2017, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. Transcripts of both hearings are associated with the claims file. In November 2017, the Veteran submitted additional evidence along with a waiver of initial RO consideration. Regarding the characterization of the claim for an acquired psychiatric disorder, although the Veteran initially submitted a claim of service connection for PTSD alone, his medical record indicates diagnoses for other psychiatric disorders, to include depressive disorders and mood disorder. The Board, therefore, has re-characterized the PTSD claim to include entitlement to service connection for an acquired psychiatric disorder in order to contemplate the Veteran's psychiatric symptoms, however diagnosed. See Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009) (holding that the scope of a claim is determined by the claimant's description of the claim, the symptoms described, and the information submitted or developed in support of the claim). 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 In light of the Veteran's October 2017 testimony and review of the record, the Board finds that a remand is necessary in this case in order to afford the Veteran with new VA examinations on both issues on appeal. With regards to the Veteran's hearing loss claim, the Board notes that thus far VA examiners determined that the Veteran does not currently have hearing loss for VA purpose in the right ear, and found no link between the current left ear hearing loss and service. However, private records show hearing loss in both ears, and the Veteran testified that his right ear hearing has gotten worse since his last VA examination in May 2014. Furthermore, the Board finds inadequate the May 2014 opinion regarding the etiology of the left ear hearing loss, as it was impermissibly based on the lack of hearing loss during service. With regards to the Veteran's claim for a psychiatric disorder, the Board notes that while his initial claim was for PTSD, he was scheduled for examination for mental disorder, excluding PTSD. In addition, the May 2014 examiner's rationale was inadequate, as it was only noted that the current depressive symptoms did not appear likely to be associated with symptoms noted during service. There was no discussion of any in-service symptoms or the Veteran's lay assertions. On remand, the examiner should be given an opportunity to provide an etiology opinion as to all diagnosed psychiatric disorders and address the November 2017 VA psychiatric addendum recently submitted by 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 and associate with the claims file any outstanding VA medical evidence. 2. Then, afford the Veteran additional opportunity to provide any further information or evidence, to include buddy statements, to help corroborate his claimed psychiatric in-service stressors. 3. Regardless of whether additional information or evidence is added to the Veteran's claims file, provide him for a VA examination to determine the etiology of any current acquired psychiatric disorders, to include PTSD and depressive disorder. Any necessary tests or studies must be conducted and all clinical findings should be reported in detail and correlated to a specific diagnosis. The claims file and a copy of this remand will be made available to the examiner, who will acknowledge receipt and review of these materials. Although a complete review of the record is imperative, your attention is called to the following: (i) A later dated January 2014 authored by the Veteran's spouse indicating that his psychiatric symptoms occurred upon his return from Panama. VBMS correspondence 02/03/2014; and (ii) The Veteran's October 2017 hearing testimony. (iii) Addendum medical opinion dated 11/29/2017 authored by the Veteran's treating psychiatrist at the VA, which states that the Veteran meets the criterion for PTSD as well as depression due to learning of the death of a fellow soldier and the death of his mother during service. VBMS entry 11/29/2017 addendum at p.5. After a thorough review of the case and examination of the Veteran, the examiner should: **For the purpose of this opinion, the examiner is asked to assume that the Veteran's assertions in regards to the claimed in-service stressor are found to be credible. (a) Identify all currently diagnosed psychiatric disorders, including PTSD. (b) Provide an opinion as to whether it is more likely than not (50 percent or greater) that any current psychiatric disorder is related to claimed stressor- witnessing the death of a service-member after a 5 ton truck overturned and killed him. **In doing so, specifically address the VA psychiatric addendum dated 11/29//17. The examiner should provide a complete rationale for the opinion, whether favorable or unfavorable, and cite to specific evidence of the record, as necessary. Please note: lack of contemporaneous medical records does not serve as an "absolute bar" to the service connection claim and cannot be used as a rationale in explaining why the current disability is not related to service. If the examiner cannot offer an opinion without resort to speculation, he or she should explain why and state what additional evidence, if any, would be required to offer an opinion. 4. Provide the Veteran with an additional VA audiology examination in connection with the service connection claim for bilateral hearing. Any necessary tests or studies must be conducted and all clinical findings should be reported in detail and correlated to a specific diagnosis. The claims file and a copy of this remand will be made available to the examiner, who will acknowledge receipt and review of these materials. Although a complete review of the record is imperative, your attention is called to the following: (i) The Veteran's credible lay testimony during his November 2012 and October 2017 hearings indicating that he had hearing loss since service that gradually became worse; and (ii) A June 2010 medical opinion authored by the Veteran's private audiologist, indicating that he has bilateral hearing loss that was at least 50 percent caused by his military service. VBMS Medical Treatment Record-Non-Government Facility 12/12/2012. After a thorough review of the case and examination of the Veteran, the examiner should: (a) Indicate whether the Veteran has bilateral hearing loss for VA purposes. Reconcile with the private audiology records. (b) Provide an opinion as to whether it is more likely than not (50 percent or greater) that his currently diagnosed hearing loss was due to his in-service noise exposure. **For the purpose of this opinion, the examiner is asked to assume that exposure to hazardous noise in-service is conceded. The examiner should provide a complete rationale for the opinion, whether favorable or unfavorable, and cite to specific evidence of the record, as necessary. Please note: lack of contemporaneous medical records does not serve as an "absolute bar" to the service connection claim and cannot be used as a rationale in explaining why the current disability is not related to service. If the examiner cannot offer an opinion without resort to speculation, he or she should explain why and state what additional evidence, if any, would be required to offer an opinion. 5. Thereafter, readjudicate the claims on appeal. If any benefits sought remain denied, provide the Veteran and his representative with an SSOC, and give him an opportunity to submit written or other argument in response before the claims file is returned to the Board for further appellate consideration. 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).