Citation Nr: 18146545 Decision Date: 11/01/18 Archive Date: 10/31/18 DOCKET NO. 16-33 696 DATE: November 1, 2018 REMANDED Entitlement to service connection for a bilateral hearing loss disabiity is remanded. Entitlement to service connection for an acquired psychiatric disorder, to include major depressive disorder and paranoid schizophrenia, is remanded. REASONS FOR REMAND The Veteran served on active duty from January 1980 to January 1983. This matter is before the Board of Veterans’ Appeals (Board) on appeal from an October 2014 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. With respect to the Veteran’s original claim for service connection for a major depressive disorder, the United States Court of Appeals for Veterans Claims (Court) has held that claims for service connection for a particular mental disorder encompass claims for service connection for all psychiatric disabilities. See Clemons v. Shinseki, 23 Vet. App. 1 (2009) (the scope of a mental health disability claim includes any mental disability that may reasonably be encompassed by the claimant’s description of the claim, reported symptoms, and the other information of record). As the Veteran has several psychiatric diagnoses in his treatment records, the Board has expanded the Veteran’s original claim for service connection for major depressive disorder to a claim of service connection for an acquired psychiatric disorder, to include major depressive disorder and paranoid schizophrenia. The Veteran’s VA medical records indicate he is in receipt of Social Security disability compensation, but no other record of that Social Security Administration (SSA) disability determination or any associated medical records are present in the claims file. VA’s duty to assist encompasses obtaining medical records that supported an SSA award of disability benefits as they may contain information relevant to VA claims. Golz v. Shinseki, 590 F.3d 1317 (Fed. Cir. 2010); Murincsak v. Derwinski, 2 Vet. App. 363 (1992). Those records should be requested and associated with the Veteran’s claims file. 1. Entitlement to service connection for bilateral hearing loss is remanded. In McLendon v. Nicholson, 20 Vet. App. 79 (2006), the United States Court of Appeals for Veterans Claims (Court) held that an examination is required when (1) there is evidence of a current disability, (2) evidence establishing an “in-service event, injury or disease,” or a disease manifested in accordance with presumptive service connection regulations occurred which would support incurrence or aggravation, (3) an indication that the current disability may be related to the in-service event, and (4) insufficient evidence to decide the case. Here, VA provided an examination with an audiologist in October 2014, but the examination was deemed invalid by the examiner and not valid for evaluation and rating purposes. See 38 C.F.R. §§ 3.385, 4.85. The examiner’s specific rationale for the invalid examination determination was that a positive Stenger’s result occurred for pure tone testing and that the Veteran’s audiometric thresholds were not consistent with his ability to converse at normal levels prior to the examination. The examiner also noted that the Veteran’s audiometric results were not consistent with his immittance results. VA must provide an examination that is adequate for rating purposes. Barr v. Nicholson, 21 Vet. App. 303 (2007). While the Board notes this examiner provided an opinion regarding service connection, a determination as to whether the Veteran has a current disability is not possible without a valid audiological examination. There are no valid audiological examinations of record to evaluate the Veteran’s claim for service connection for bilateral hearing loss. In that regard, the Board finds the October 2014 VA examination findings raise some concern as to the quality of the Veteran's participation during the testing. The report suggests an inability on his part to provide accurate results, which would require a search for a remedy/resolution to the problem causing the inability. On the other hand, although there is no clear indication that the Veteran intentionally refused to cooperate, or otherwise attempted to manipulate the test results, he is cautioned concerning his own responsibility to cooperate with VA in these matters. Wood v. Derwinski, 1 Vet. App. 190, 193 (1991) (the duty to assist is not a one-way street). The Board believes that the Veteran's duty to cooperate with VA includes reporting for, and cooperating during, his VA examination. See Morris v. Derwinski, 1 Vet. App. 260, 264 (1991) (individuals applying for benefits have a responsibility to cooperate with the agency in the gathering of the evidence necessary to establish allowance of benefits). As such, a remand is required to obtain the requisite VA examination and opinion. 2. Entitlement to an acquired psychiatric disorder, to include major depressive disorder and paranoid schizophrenia is remanded. The Veteran originally made a claim for service connection for major depressive disorder, and the Board notes that the Veteran has also been diagnosed with paranoid schizophrenia and mood disorder with question of psychotic features. The Board also notes that VA clinicians have recorded episodic cocaine, heroin, and cannabis abuse. While the Veteran has received VA medical care, to include psychiatric care, since 2009, he has never received a formal VA examination with opinion for service connection for any acquired psychiatric disorder. As such, the claim must be remanded to obtain the requisite VA examination and opinion. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). To establish entitlement to service-connected compensation benefits, 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-the so-called “nexus” requirement.” Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may also be granted for a psychosis, when it is manifested to a compensable degree within one year of separation from service. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. According to 38 C.F.R. § 3.384, utilizing DSM-5 nomenclature, a “psychosis” includes the following specific disorders: brief psychotic disorder, delusional disorder, psychotic disorder due to another medical condition, other specified schizophrenia spectrum and other psychotic disorder, schizoaffective disorder, schizophrenia, schizophreniform disorder, shared psychotic disorder, and substance-induced psychotic disorder. Schizophrenia has been diagnosed in the Veteran at multiple times, and is a chronic disease listed under 38 C.F.R. § 3.309(a); therefore, the presumptive service connection provisions based on “chronic” in-service symptoms and “continuous” post-service symptoms under 38 C.F.R. § 3.303(b) potentially apply. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The Veteran also has a complex history of substance abuse intertwined with the treatment of his psychiatric disorders. The United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that compensation cannot be awarded pursuant to 38 U.S.C. §§ 1110, 1131 and 38 C.F.R. § 105(a) either for a primary substance abuse disability incurred during service or for any secondary disability that resulted from primary substance abuse during service. Allen v. Principi, 237 F.3d 1368, 1376 (Fed. Cir. 2001). However, service connection may be granted for an alcohol or drug abuse disability acquired secondary to, or as a symptom of, a service-connected disability. The Federal Circuit further stated that such compensation may be awarded only “where there is clear medical evidence establishing that alcohol or drug abuse is caused by a veteran’s primary service-connected disability, and where the alcohol or drug abuse disability is not due to willful wrongdoing.” Id. at 1381. Direct service connection may be granted only when a disability was incurred or aggravated in line of duty, and not the result of the Veteran’s own willful misconduct or, for claims filed after October 31, 1990, the result of his abuse of alcohol or drugs. 38 U.S.C. § 105; 38 C.F.R. § 3.301(a). Willful misconduct is defined as an act involving conscious wrongdoing or known prohibited action. It involves deliberate or intentional wrongdoing with knowledge or wanton and reckless disregard of its probable consequences, to include the abuse of alcohol or drugs. 38 C.F.R. § 3.301(a). For the purposes of this paragraph, alcohol abuse means the use of alcoholic beverages over time, or such excessive use at any one time, sufficient to cause disability to or death of the user; drug abuse means the use of illegal drugs (including prescription drugs that are illegally or illicitly obtained), the intentional use of prescription or non-prescription drugs for a purpose other than the medically intended use, or the use of substances other than alcohol to enjoy their intoxicating effects. 38 C.F.R. § 3.301(d). See also 38 U.S.C. § 105; 38 C.F.R. § 3.1(m). The matters are REMANDED for the following action: 1. Make appropriate efforts to obtain and associate with the claims file any updated VA medical records of the Veteran not previously obtained. Make appropriate efforts to contact Social Security to obtain and associate with the claims files any records relating to the Veteran’s Social Security disability determination. Contact the Veteran and request that he identify any pertinent private treatment records not already identified and obtained and, with the appropriate authorization, attempt to obtain those records and associate them with the claims file. 2. Schedule the Veteran for a VA examination pursuant to 38 C.F.R. §§ 3.385 and 4.85 to determine the nature and etiology of the Veteran’s hearing loss. The Veteran should be informed, prior to the exam, that failure to cooperate with the examiner may negatively impact his claim for benefits. The file must be made available to the audiologist for review of the case. The claims file must be made available to and reviewed by the examiner. A note that it was reviewed should be included in the report. Audiological testing, should be performed and the examiner should provide a detailed description of the steps taken to obtain a complete and reliable hearing test result. If valid audiometric results cannot be obtained, the examiner should indicate (with clear explanation) whether such is due to some circumstance(s) unique to the Veteran that render(s) him incapable of providing valid responses (in which case it should be determined whether there are any possible accommodations that would address the problem) or whether it is due to his malingering/failure to cooperate. After reviewing the claims file and examining the Veteran, the examiner should answer the following question: Whether it is at least as likely as not (probability of 50 percent or greater) that the Veteran’s claimed hearing loss disability had its onset in service or is otherwise related any to any in-service disease, event, or injury. A detailed rationale supporting the examiner’s opinion should be provided. 3. After the Social Security disability records have been procured and associated with the claims file, schedule the Veteran for a VA examination with a VA (or VA contracted) psychiatrist or psychologist to determine the nature and etiology of the Veteran’s acquired psychiatric disorder(s). After reviewing the claims file and examining the Veteran, the examiner should answer the following question: Whether it is at least as likely as not (probability of 50 percent or greater) that the Veteran’s claimed acquired psychiatric disorder had its onset in service or is otherwise related any to any in-service disease, event, or injury. In forming the opinion regarding service connection, the examiner is requested to distinguish between substance abuse that is due to the Veteran’s own willful misconduct from that which is or may be due to the Veteran’s diagnosed psychiatric disorder(s). A detailed rationale supporting the examiner’s opinion should be provided. In forming the opinion the examiner must consider all lay statements of record. If the examiner feels that the requested opinions cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required or the examiner does not have the needed knowledge or training). Jones v Shinseki, 23 Vet. App. 382 (2010). The examiner is reminded that the term “as likely as not” does not mean “within the realm of medical possibility,” but rather that the evidence of record is so evenly divided that, in the examiner’s expert opinion, it is as medically sound to find in favor of the proposition as against it. 4. Thereafter, readjudicate the issues on appeal as noted above. If the determination remains unfavorable to the Veteran, he and his representative should be furnished a supplemental statement of the case (SSOC) which addresses all evidence associated with the claims file since the last statement of the case. The Veteran and his representative should be afforded the applicable time period to respond. 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). (CONTINUED ON NEXT PAGE) 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). Michael Pappas Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Setter, Associate Counsel