Citation Nr: 20007811 Decision Date: 01/30/20 Archive Date: 01/29/20 DOCKET NO. 15-00 877 DATE: January 30, 2020 REMANDED Entitlement to service connection for an acquired psychiatric disorder (claimed as posttraumatic stress disorder (PTSD)) is remanded. Entitlement to service connection for hearing loss is remanded. Entitlement to service connection for tinnitus is remanded. REASONS FOR REMAND The Veteran served on active duty from May 1988 to August 1991. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a June 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In June 2018, the Veteran testified before the undersigned Veterans Law Judge. A transcript of the hearing is of record. In a September 2018 decision, the Board denied entitlement to service connection for an acquired psychiatric disorder and tinnitus. The Veteran appealed the decision to the United States Court of Appeals for Veterans Claims (Court). In May 2019, the Court granted a Joint Motion for Partial Remand (JMR) of the Veteran and the Secretary of Veterans Affairs (the Parties) to partially vacate and remand the September 2018 decision, specifically the Veteran’s claim for service connection for an acquired psychiatric disorder and tinnitus. Additionally, the Court ordered the remand of the issue of hearing loss for the issuance of a Statement of the Case (SOC) on that matter. These issues are once again before the Board. 1. Entitlement to service connection for PTSD is remanded. As noted above, in May 2019, the Court granted the Parties’ JMR and remanded the Board’s September 2018 decision denying the Veteran’s claims for service connection for an acquired psychiatric disability and tinnitus. The basis for the Court’s remand, as set out in the May 2019 Joint Motion, was that the December 2011 VA examination relied upon by the Board in its decision was inadequate. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2017). Significantly, the examiner relied on the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM-IV). Because the Veteran’s certification of appeal was dated in May 2015, the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (DSM-V) applies. As such, the Board did not ensure that the duty to assist was satisfied. Accordingly, it was determined that it was an error for the Board to rely on the December 2011 examination report in reaching its decision. The Court vacated the Board decision and remanded the matter for a new medical examination and readjudication. When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate; if it is not, “it is incumbent upon the rating board to return the report as inadequate for evaluation purposes.” 38 C.F.R. § 4.2; Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (a medical opinion “must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions”); see also Hicks v. Brown, 8 Vet. App. 417, 422 (1995) (inadequate medical evaluation frustrates judicial review). Under the circumstances, and in light of the Court’s finding that the December 2011 VA examination was inadequate, the Board finds that VA must provide a new VA examination as to the claim of entitlement to service for an acquired psychiatric disorder, claimed as PTSD. 2. Entitlement to service connection for hearing loss is remanded. 3. Entitlement to service connection for tinnitus is remanded. The Veteran contends that his hearing loss and tinnitus were caused by noise exposure during his active duty military service. In October 2014, the RO issued a statement of the case (SOC) adjudicating service connection for an acquired psychiatric disorder and tinnitus. However, as discussed above, no SOC was issued for the issue of entitlement to service connection for hearing loss. The Court has held that, when an appellant files a timely NOD as to a particular issue and no SOC is furnished, the Board should remand, rather than refer, the claim for issuance of a SOC. See Manlincon v. West, 12 Vet. App. 238 (1999); see also 38 C.F.R. § 19.9 (c). Under these circumstances, a SOC concerning the issue of entitlement to service connection for hearing loss should be issued. The JMR noted that the issue of service connection for tinnitus is inexplicably intertwined with the issue of service connection for hearing loss. Specifically, because the December 2011 VA examiner opined that the Veteran’s tinnitus was secondary to his hearing loss. As such, the claim for service connection for tinnitus should be remanded along with the claim for hearing loss. Additionally, in a December 2019 correspondence, the Veteran’s representative argued that the December 2011 VA examination regarding tinnitus and hearing loss was inadequate. Particularly, that the VA examiner did not address the Veteran’s compliant of right ear pain in service as noted in his STRs in a December 1988 entry. Also, arguing that the examiner’s rationale was based solely on normal audiological tests upon separation from service was erroneous. The Court has held that a negative nexus opinion may not be based solely on “normal” discharge examination, see Hensley v. Brown, 5 Vet. App. 155, 159 (1993). Based on the foregoing, the Board finds that a new examination regarding hearing loss and tinnitus is also necessary on remand. The matters are REMANDED for the following action: 1. Obtain and associate with the claims file any outstanding VA treatment records. 2. Ensure that the Veteran is scheduled for an appropriate VA examination to determine the nature, status, and etiology of his psychiatric disabilities. The examination should be conducted by a VA examiner who has not previously examined the Veteran. The claims file must be made available to and reviewed by the examiner in conjunction with the examination. The examiner should consider the Veteran’s lay statements regarding onset of symptomatology and any continuity of symptomatology since onset and/or since discharge from service. The examiner must also consider all of the Veteran’s lay statements concerning his claimed stressors related to his PTSD symptoms. The examiner should consider any other pertinent evidence of record, as appropriate. All findings by the examiner should be reported in detail, and all opinions must be accompanied by a clear and complete rationale. The examiner must provide the following: (a.) Identify all diagnosable DSM-V psychiatric conditions in the Veteran. (b.) If the Veteran’s psychiatric disability is stressor or trauma-related, specify the incident(s) or stressor(s) with which that diagnosis is being made and whether such stressor(s) occurred during the Veteran’s active service. (c.) If the Veteran’s psychiatric disability is stressor-related, identify whether any of the Veteran’s claimed in-service stressors are related to fear of hostile military or terrorist activity. (d.) With each psychiatric disability found in the Veteran, provide a medical opinion as to whether it is as least as likely as not (a 50 percent probability or greater) that the psychiatric disability was incurred in, aggravated by, caused by, or otherwise related to his active service. 3. The Veteran should be afforded a VA examination to determine the nature and etiology of his currently diagnosed bilateral hearing loss and bilateral tinnitus. All necessary studies and tests necessary to make this determination must be conducted. The examiner must review the entire electronic claims file in conjunction with the examination. After a review of the examination and audiogram findings, the entire evidence of record, and with consideration of the Veteran’s statements, his military occupational specialty, as well as his STRs, the examiner must provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that the diagnosed bilateral hearing loss and/or tinnitus is related to the Veteran’s period of military service, or to any incident therein, to include documented in-service right ear pain. A complete rationale for all opinions must be provided. If the examiner cannot provide a requested opinion without resorting to speculation, it must be so stated, and the examiner must provide the reasons why an opinion would require speculation. The examiner must indicate whether there was any further need for information or testing necessary to make a determination. Additionally, the examiner must indicate whether any opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular examiner. 4. After completing the above, readjudicate the claims. If any benefit sought is not granted in full, furnish to the Veteran and his representative a supplemental statement of the case (SSOC) and provide the requisite period of time to respond. The case should thereafter be returned to the Board for further appellate review, if otherwise in order. JAMES G. REINHART Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Katie Poe, 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.