Citation Nr: 20072845 Decision Date: 11/12/20 Archive Date: 11/12/20 DOCKET NO. 15-15 445 DATE: November 12, 2020 REMANDED Entitlement to service connection for bilateral hearing loss is remanded. Entitlement to an initial rating in excess of 30 percent prior to November 13, 2017 and in excess of 70 percent thereafter for other specified trauma and stressor related disorder (also claimed as posttraumatic stress disorder, depressive disorder, and anxiety disorder) (hereinafter acquired psychiatric disorder) is remanded. REASONS FOR REMAND The Veteran served on active duty with the United States Army from May 1977 to May 1980. The Veteran had an additional period of service from May 1980 to October 1980 that has been determined to be dishonorable for VA purposes. These matters are before the Board of Veterans’ Appeals (Board) on appeal from November 2016 and October 2017 rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). In July 2018, the Veteran appeared before the undersigned at a hearing for in part his increased rating claim for his acquired psychiatric disorder. A transcript of the hearing is of record. The Veteran’s acquired psychiatric disorder claim was previously before the Board in November 2018 and July 2019 when the Board remanded it for further development. The Veteran’s bilateral hearing loss claim was previously before the Board in July 2019 when the Board remanded it for further development. In a September 2020 rating decision, the Agency of Original Jurisdiction (AOJ) increased the Veteran’s rating for his acquired psychiatric disorder to 70 percent effective November 13, 2017. In the November 2018 and July 2019 decisions, the Board also remanded claims of entitlement to service connection for back condition, left hand condition, left arm condition, and left shoulder condition. In the September 2020 rating decision noted above, the AOJ also awarded service connection for degenerative arthritis of the lumbar spine, left shoulder strain, left elbow strain, and left ring finger strain. As such, the lumbar spine, left shoulder, left elbow, and left ring finger claims are not currently before the Board. In addition, the Board notes that a review of the record illustrates that the AOJ is currently undertaking development of the Veteran’s claims of entitlement to service connection for a cervical spine condition and rash of the legs, back, and feet; entitlement to increased ratings for a left 4th finger disability and right 5th metacarpal disability; and entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU), claims which the Board remanded in June 2020. As such, the claims are not currently before the Board. 1. Entitlement to service connection for bilateral hearing loss is remanded. The Board finds that the claim must be remanded for additional development as there has not been substantial compliance with the mandates of the July 2019 remand order. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that where the remand orders of the Board are not substantially complied with, the Board errs as a matter of law when it fails to ensure compliance). In July 2019, the Board remanded the claim for a VA examination and opinion where the Board specifically requested the VA examiner to “specifically address the validity of the May 1980 audiograms in the Veteran’s service treatment records in which only one audiogram shows bilateral hearing loss for VA purposes.” Following an August 2019 VA examination, the VA examiner opined that it is less likely than not that the Veteran’s bilateral hearing loss was caused by the Veteran’s service. In support of the opinion, the VA examiner stated that “without valid audiogram at or after separation it is impossible to determine if there is a significant shift in hearing thresholds on active duty, evidence of auditory damage.” Although the VA examiner stated “without valid audiogram at or after separation,” the VA examiner did not specifically address the validity of the two audiograms dated May 8, 1980 in the Veteran’s service treatment records. As the August 2019 VA opinion does not substantially comply with the July 2019 remand order, the claim must be remanded for an additional VA opinion. See Stegall, 11 Vet. App. at 271. 2. Entitlement to increased ratings for an acquired psychiatric disorder is remanded. The Veteran most recently underwent a VA examination to assess his service-connected acquired psychiatric disorder in August 2018. The August 2018 VA examination report is silent for auditory hallucinations and any suicidal ideation. A review of the record illustrates that VA treatment records before and after the August 2018 VA examination reflect that the Veteran has reported auditory hallucinations. Furthermore, in an April 2020 written statement, the Veteran’s attorney requested that the Veteran be afforded an additional VA examination to determine the current severity level of the Veteran’s acquired psychiatric disorder in part based on the Veteran having continuous hallucinations. In addition, VA treatment records before and after the August 2018 VA examination reflect that the Veteran has reported suicidal ideation, and in particular, VA treatment records beginning in August 2019 reflect that the Veteran has reported having thoughts of suicidal ideation two to five times per week. Notwithstanding the above, the most recent VA treatment record in the file from September 2020 reflects that the Veteran denied any suicidal ideation and denied having any problems with auditory hallucinations. Therefore, given the inconsistencies between the VA treatment records and the August 2018 VA examination and the potential worsening of the Veteran’s acquired psychiatric disorder based on the reports of auditory hallucinations and increased suicidal ideation since the August 2018 VA examination, a new VA examination is needed to determine the current severity of the Veteran’s acquired psychiatric disorder. The matters are REMANDED for the following actions: 1. Obtain and associate with the Veteran’s electronic record VA treatment records from September 2020 to the present. Contact the Veteran and afford him the opportunity to identify or submit any pertinent evidence in support of his claims, to include records of any private treatment. Based on his response, attempt to procure copies of all records which have not been obtained from identified treatment sources. If any of the records requested are unavailable, clearly document the claims file to that effect and notify the Veteran of any inability to obtain these records, in accordance with 38 C.F.R. § 3.159(e). 2. After completing the development requested in item 1, obtain a medical opinion from an appropriate medical professional for the Veteran’s bilateral hearing loss claim. The electronic claims file must be made available to the medical professional for review in connection with the request for an opinion. If the medical professional determines that an in-person examination (including via telehealth interview) is needed in order to answer the questions posed, then such should be scheduled. After reviewing the claims file, the medical professional should address the following: Is it at least as likely as not (50 percent or greater probability) that the Veteran’s current bilateral hearing loss is related or attributable to his military service, to include noise exposure from his military occupational specialty of infantryman? In answering the above question, the medical professional is to note that the Board has conceded that the Veteran has a current bilateral hearing loss disability for VA purposes based on the June 2017 VA audiogram that shows bilateral hearing loss for VA purposes. The medical professional is requested to specifically address the validity of the two audiograms in the Veteran’s service treatment records dated May 8, 1980 in which only one audiogram shows bilateral hearing loss for VA purposes. In addressing this, the medical professional should provide rationale as to why/why not the May 1980 audiograms are valid/invalid. The medical professional must provide a complete rationale for any opinion expressed. If the medical professional cannot provide any requested opinion without resorting to speculation, he or she should expressly indicate this and provide a supporting rationale as to why an opinion cannot be made without resorting to speculation. 3. After completing the development requested in item 1, schedule the Veteran for an appropriate VA examination (or telehealth interview, if an in-person examination is not feasible) to evaluate the severity of the Veteran’s acquired psychiatric disorder. The entire claims file should be made available to the examiner in conjunction   with this request. All testing deemed necessary to rate psychiatric disorders under the criteria of the rating schedule must be conducted and the results reported in detail. M. SORISIO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board N. Breitbach, 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.