Citation Nr: 19154167 Decision Date: 07/16/19 Archive Date: 07/12/19 DOCKET NO. 15-46 005 DATE: July 16, 2019 REMANDED Entitlement to service connection for a lumbar spine disability is remanded. Entitlement to service connection for memory loss, including as secondary to an acquired psychiatric disability, is remanded. Entitlement to service connection for an acquired psychiatric disability, including specified depressive disorder, posttraumatic stress disorder (PTSD), anxiety, and mood disorder, including as secondary to service-connected disabilities, is remanded. Entitlement to an initial compensable rating for right ear hearing loss is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. REASONS FOR REMAND The Veteran had active duty service from May 1980 to April 1983. These matters come before the Board of Veterans’ Appeals (Board) on appeal from an August 2014 rating decision, which, in pertinent part, granted service connection for right ear hearing loss and assigned a noncompensable disability rating and denied service connection for lumbar spine degenerative joint disease (lumbar spine disability), specified depressive disorder (claimed as PTSD, depression, and anxiety), and memory loss. The Veteran testified before the undersigned Veterans Law Judge (VLJ) in May 2019. A copy of the transcript has been reviewed and associated with the claims file. The Board notes that the scope of the Veteran’s mental health disability claims includes any mental health disability that may reasonably be encompassed by his description of the claim, reported symptoms, and other information of record. See Clemons v. Shinseki, 23 Vet. App. 1, 4-6 (2009). In the present case, the evidence shows multiple mental health diagnoses, to include posttraumatic stress disorder (PTSD), depressive disorder, anxiety, and mood disorder. Accordingly, the Board has recharacterized the issue on appeal as service connection for an acquired psychiatric disorder. In Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court of Appeals for Veterans Claims (Court) held that a claim for a TDIU due to a service-connected disability is part and parcel of an increased rating claim for that disability when raised by the record. In the present case, an August 2014 examination indicated that his hearing loss impacted his ability to work. Accordingly, the issue of entitlement to a TDIU is before the Board. See Roberson v. Principi, 251 F.3d 1378, 1384 (2001) (“[O]nce a veteran submits evidence of a medical disability and makes a claim for the highest rating possible, and additionally submits evidence of unemployability, the VA must consider... TDIU.”). 1. Entitlement to service connection for a lumbar spine disability is remanded. At the outset, the Board notes that it is unclear whether the Veteran had additional active service dates. In this regard, his military personnel records reveal that he was reassigned to the reserves in August 1983, reassigned in the reserves in April 1984, and discharged from the ready reserves in April 1986. Furthermore, drill attendance data was attached to his personnel records. Accordingly, the Board finds that the RO should obtain any additional active service date(s) and associated personnel records on remand. With regard to the issue of entitlement to service connection for a lumbar spine disability, the Board finds that a new VA examination is warranted. In this regard, the Veteran was assessed with degenerative arthritis of the spine. The examiner concluded that his lumbar spine disability was not related to service, in part, due to the lack of ongoing complaints, evaluations, or treatments following a November 1980 back strain. However, the Veteran subsequently testified at the hearing in May 2019 and indicated that he continued having back pain following service but used over-the-counter remedies to alleviate his pain, including asprin, Flexeril cream, and a weight-belt. Accordingly, the Board finds that a new VA examination is warranted in order for the examiner to take into account his subsequent lay testimony of continued lower back pain following service. 2. Entitlement to service connection for memory loss, including as secondary to an acquired psychiatric disability is remanded; 3. Entitlement to service connection for an acquired psychiatric disability, including specified depressive disorder, posttraumatic stress disorder (PTSD), anxiety, and mood disorder, including as secondary to service-connected disabilities is remanded. Throughout the rating period on appeal, the Veteran has been assessed with PTSD, depression, anxiety, and a mood disorder. He asserts that his psychiatric disability was incurred in service due to his time in Korea, including hearing live fire and propaganda. He also asserts that his subsequent job loss exacerbated his underlying mental health issues that occurred from his experiences in Korea. The Board also notes that an April 2019 VA treatment record indicated that he suffered from anxiety due, in part, to his medical problems. Lastly, the Veteran indicated that he suffers from memory loss due to his psychiatric disabilities. The Board notes that the Veteran was reassigned in the reserves in April 1984 due to unsatisfactory participation. Furthermore, an August 2011 VA treatment record indicated that he suffered from methamphetamine dependence from 1984 to 2009. A VA examination was performed in August 2014, at which time the examiner indicated that his depressive disorder and methamphetamine disorder was not related to service given that they started emerging in 1987, which was at least 4 years after discharge from service. The examiner concluded that he did not have a diagnosis of PTSD. After a review of the evidence, the Board finds that a new VA examination is warranted. In this regard, the examiner did not discuss his additional diagnoses of anxiety and mood disorder. Furthermore, the examiner failed to acknowledge and discuss the fact that the Veteran had an unsatisfactory performance rating in 1984 and his August 2011 VA treatment record indicated that he suffered from methamphetamine dependence from 1984 to 2009. Moreover, an April 2019 VA treatment record indicated that he has anxiety due to his medical problems. Lastly, his VA treatment records reveal that he has memory impairment. Accordingly, the Board finds that a new VA examination is warranted in order to assess the nature and etiology of all psychiatric disabilities and memory loss. 4. Entitlement to an initial compensable rating for right ear hearing loss is remanded. A VA examination was performed in August 2014 to assess the severity of the Veteran’s right ear hearing loss. However, during the May 2019 hearing he stated that he is completely deaf at certain times and he suffers from headaches due to his hearing loss. Given that the last VA examination was performed over five years ago and there is an indication that his hearing loss may have increased and he suffers from residual headaches due to his hearing loss, the Board finds that a new VA examination is warranted in order to determine the current severity of his right ear hearing loss. 5. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. Entitlement to a TDIU is an element of all increased rating claims. See Rice v. Shinseki, 22 Vet. App. 447, 453 (2009). Entitlement to a TDIU is raised where a veteran: (1) submits evidence of a medical disability; (2) makes a claim for the highest rating possible; and (3) submits evidence of unemployability. Roberson v. Principi, 251 F. 3d 1378 (Fed. Cir. 2001). From the record, it appears that the Veteran is no longer working and a VA examination in April 2014 indicated that his hearing loss impacted his ability to work. Accordingly, the Board finds that a TDIU claim has been raised by the record in this case. A review of the record shows that the Veteran has not been provided the specific notice required in response to a claim for a TDIU, to include a request to submit a VA Form 21-8940, and the originating agency has not adjudicated the TDIU issue. Therefore, the Board finds that further action is required of the originating agency before the Board decides the TDIU issue. Lastly, the Board notes that a Statement of the Case (SOC) was issued in December 2015. Subsequently, additional relevant VA treatment records have been associated with the claims file from January 2016 to June 2019. However, the AOJ did not prepare an SSOC considering this newly generated evidence. Furthermore, the Veteran has not waived initial AOJ consideration of this additional evidence. Accordingly, a remand is required for the issuance of an appropriate SSOC that considers the most recent VA treatment records and any other relevant evidence received since the last SSOC. See 38 C.F.R. § 20.1304 (c). The matters are REMANDED for the following actions: 1. Obtain and associate with the claims file the Veteran’s updated VA treatment records from June 2019 to the present. 2. Obtain and associate with the claims file the VistA images associated with his VA treatment from 2009 to the present. 3. Take all necessary steps to verify the Veteran’s period(s) of active duty for training (ACDUTRA), inactive duty training (IDT), or active duty for special work for the period(s) from 1983 through 1986. Reserve retirement point sheets are not adequate for this purpose; rather, the specific dates of the Veteran’s ACDUTRA, IDT, or active duty for special work service are required. If this information or documentation is unavailable this fact should be documented and a formal finding of unavailability should be made with notice to the Veteran and his representative and they should be given an opportunity to respond. 4. After completion of #1, #2, and #3, schedule the Veteran for a VA examination to determine the nature and etiology of his lumbar spine disabilities. The claims file, including this remand, should be reviewed by the examiner to become familiar with the Veteran’s pertinent medical history and such review should be noted in the examination report. The examiner should identify and discuss any lumbar spine disability identified during examination and/or the pendency of this claim, including degenerative arthritis of the spine, spondylosis/scoliosis, and strain of the back, and respond to the following: Is it at least as likely as not (probability of at least 50 percent) that the Veteran’s lumbar spine disability had its onset in and/or is otherwise related to his period(s) of active service? If there is evidence of symptoms for any condition between two periods of active service, the examiner should state whether it is clear and unmistakable that chronic disability preexisted the subsequent period of service and, if so, whether it is clear and unmistakable that such preexisting disorder was not aggravated during such subsequent service. If service connection is found for a lumbar spine disability, the examiner should discuss whether the disability impacts his ability to work. The examiner must provide a comprehensive rationale for each opinion provided. Specifically, the examiner must discuss the hearing testimony and lay statements contained throughout the file. The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports are to be considered in formulating any opinion. If any opinion cannot be given without resorting to speculation, the examiner should explain why and state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), the record (additional facts are required), or the examiner does not have the knowledge or training. As appropriate, the AOJ should conduct additional development or supplement the record. 5. After completion of #1, #2, and #3, schedule the Veteran for a VA examination to determine the nature and etiology of his psychiatric disabilities. The claims folder, including a copy of this remand, must be made available to the examiner and such review should be noted in the examination report. The examiner should identify and discuss all psychiatric disabilities found on examination and identified during the pendency of this claim, including PTSD, anxiety, depressive disorder, mood disorder, and memory loss, and respond to the following: A. Is it at least as likely as not (probability of at least 50 percent) that the Veteran’s psychiatric disability or disabilities had their onset in and/or are otherwise etiologically related to his period(s) of active service, including the events in Korea? If there is evidence of symptoms for any condition between two periods of active service, the examiner should state whether it is clear and unmistakable that chronic disability preexisted the subsequent period of service and, if so, whether it is clear and unmistakable that such preexisting disorder was not aggravated during such subsequent service. If PTSD is found by the examiner, he or she should identify the stressor(s) the diagnosis is based upon. B. If direct service connection is not found, is it at least as likely as not (probability of at least 50 percent) that the Veteran’s psychiatric disability or disabilities were caused by his service-connected disabilities, including right ear hearing loss and/or tinnitus? If not, is it at least as likely as not (probability of at least 50 percent) that the Veteran’s psychiatric disability or disabilities were aggravated (worsened beyond their natural progression) as a result of his service-connected disabilities, including right ear hearing loss and tinnitus? If aggravation is found, is there medical evidence created prior to the aggravation or between the aggravation and psychiatric disability that shows a baseline of his psychiatric disability prior to aggravation? If so, please identify. C. With regard to memory loss, if service connection is found for an acquired psychiatric disability, and service-connection is not directly found for memory loss, is it at least as likely as not (probability of at least 50 percent) that the Veteran’s memory loss was caused by his psychiatric disability or disabilities? If not, is it at least as likely as not (probability of at least 50 percent) that the Veteran’s memory loss was aggravated (worsened beyond its natural progression) as a result of his psychiatric disability or disabilities? If aggravation is found, is there medical evidence created prior to the aggravation or between the aggravation and memory loss that shows a baseline of his memory loss prior to aggravation? If so, please identify D. If service connection is found for memory loss and/or an acquired psychiatric disability, please describe the impact of said disabilities on the Veteran’s ability to work. The examiner must provide a comprehensive rationale for each opinion provided. Specifically, the examiner must discuss the hearing testimony and lay statements contained throughout the file. The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports are to be considered in formulating any opinion. Finally, the examiner should note, if a separate memory loss disability is diagnosed, whether that disability involves symptoms distinct from the Veteran’s mental health disabilities. Put another way, would the Veteran still have memory symptoms even if his only diagnoses were the mental health disabilities? If any opinion cannot be given without resorting to speculation, the examiner should explain why and state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), the record (additional facts are required), or the examiner does not have the knowledge or training. As appropriate, the AOJ should conduct additional development or supplement the record. 6. After completion of #1, #2, and #3, schedule the Veteran for a VA examination to determine the current severity of his service connected right ear hearing loss. The claims file, including this remand, must be reviewed by the examiner and such review should be noted in the examination report. All indicated tests and studies should be accomplished and the findings then reported in detail. The examiner must fully describe any functional effects associated with the Veteran’s bilateral hearing loss and the impact of his hearing disability upon his vocational pursuits, including his ability to work. The examiner should discuss any residuals associated with his right ear hearing loss, including any headaches. The examiner must provide a comprehensive rationale for each opinion provided. Specifically, the examiner must discuss the hearing testimony and lay statements contained throughout the file. The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports are to be considered in formulating any opinion. If any opinion cannot be given without resorting to speculation, the examiner should explain why and state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), the record (additional facts are required), or the examiner does not have the knowledge or training. As appropriate, the AOJ should conduct additional development or supplement the record. 7. Provide the Veteran with notice of how to substantiate a claim for entitlement to TDIU. Additionally, provide him with VA Form 21-8940 in connection with the inferred claim for entitlement to a TDIU, and request that he supply the requisite information. (Continued on the next page)   8. Thereafter, readjudicate the issues on appeal, to include consideration of the additional VA examination reports and treatment records. If the benefits sought on appeal are not granted in full, issue the Veteran and his representative a Supplemental Statement of the Case (SSOC) and provide the Veteran an opportunity to respond. Eric S. Leboff Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD S. (Hurley) Merrick, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.