Citation Nr: 21001282 Decision Date: 01/07/21 Archive Date: 01/07/21 DOCKET NO. 17-54 632 DATE: January 7, 2021 REMANDED Service connection for hearing loss is remanded. Service connection for tinnitus is remanded. Service connection for an acquired psychiatric disorder is remanded. A total disability rating based on individual unemployability (TDIU) is remanded. Entitlement to Dependents Educational Assistance (DEA) benefits under Chapter 35 of Title 38, U.S.C. is remanded. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1979 to December 1979. The case is on appeal from an April 2017 rating decision. The case was most recently before the Board in June 2020. At that time, the Board remanded the remaining issues on appeal for further development and adjudication pursuant to a January 2020 Order from United States Court of Appeals for Veteran’s Claims (Court), on the basis of a December 2019 Joint Motion for Partial Remand (JMPR). REASONS FOR REMAND 1. Service connection for hearing loss. 2. Service connection for tinnitus. For the reasons set forth below, the Board finds that another remand is warranted. Service treatment records (STRs) reflect that the Veteran’s July 1979 entrance audiology examination revealed a normal hearing for VA purposes. See also October 6, 1978 Screening Physical Examination (noting “no loss of hearing” in either ear). Thus, the Veteran was sound at entrance. Service personnel records (SPRs) reflect that by the time of the Veteran’s discharge, a military occupational specialty (MOS) had not been assigned as the Veteran was still on basic training. Accordingly, it is not clear whether the Veteran’s duties or training during his active duty period exposed him to a low, moderate, or high level of noise. The Board notes that it is not clear whether the Veteran was afforded a separation audiological examination or not. However, in a December 18, 1979 Statement of Medical Condition, the Veteran acknowledged he underwent a separation medical examination prior to his separation and indicated that his medical condition has changed since his last examination, to include due to “noise problems.” The Veteran was afforded an initial VA examination in connection with these claims in September 2017. As noted by the December 2019 JMPR, the Veteran’s hearing could not be tested as his “responses were not sufficiently reliable to diagnose the presence of and/or severity, type and configuration of hearing loss; hearing sensitivity remains undetermined at [that] time.” The report further indicates that “the use of a word recognition score is not appropriate for this Veteran because of language difficulties, cognitive problems, inconsistent word recognitions scores etc., that make the combined use of pure tone average and word recognition score inappropriate.” The September 2017 VA examiner indicated that given that an opinion regarding the relationship of hearing loss and noise injury cannot be offered without resort to speculation, the veteran will need to be reevaluated for the adjudication process to proceed. In light of the foregoing, and in accordance with the December 2019 JMPR, the Board remanded the claims for further development. Pursuant to the Board’s June 2020 remand, the Veteran was afforded another VA audiology examination in September 2020. The VA examiner noted that she could not test the Veteran’s hearing as he did not respond reliably, and his responses were too variable to be valid. She further noted that he did not respond to pure tones consistently, that his responses to speech presentation were partial and not consistent, but that the Veteran did, however, respond to the examiner’s questions at levels below his response’s tones. The examiner concluded that due to incomplete or missing entry and/or exit audiograms in the Veteran’s STRs, she was unable to verify a threshold shift in the Veteran’s medical records that was greater than normal measurement variability at any frequency between 500 and 6000 Hz for both ears. As for the tinnitus claim, the VA examiner noted that as the presence or absence of hearing loss could not be determined given the Veteran’s responses being variable and not reliable, and because there was not sufficient documentation in the records to support a nexus between his current tinnitus and military service, his claimed tinnitus is less likely than not caused by or a result of military noise exposure. First, the Board notes that the September 2017 VA examination report did not reference or mention the Veteran’s STRs in the opinion. As for the September 2020 VA examination, while the examiner indicated that she was unable to verify a threshold shift in the Veteran’s medical records, as the records were either missing or incomplete, the Board notes that the Veteran’s December 18, 1979 statement, with respect to his “noise problem,” which at that time he considered “a change in his medical condition,” was not discussed nor appears to have been considered in her opinion. Upon consideration of the foregoing, in addition to the fact that the VA examiner did not necessarily imply that the Veteran was not being cooperative during the examination, the Board finds that a remand is warranted for a new VA examination and opinion. The Board points out that VA’s duty to assist in the development of a claim is not a one-way street and if a veteran wishes help, he or she should provide information or materials relevant to their claim to VA so that VA may assist in development of the claim. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). Additionally, absent a showing of good cause, a Veteran’s refusal to participate or cooperate during a VA examination is akin to a failure to report for VA examination for purposes of VA regulations under 38 C.F.R. § 3.655. See VAOPGCPREC 4-91 (Feb. 13, 1991). Failure to cooperate during VA examinations “subject[s claimants] to the risk of an adverse adjudication based on an incomplete and undeveloped record.” See Kowalski v. Nicholson, 19 Vet. App. 171, 181 (2005). With that in mind, the Board finds that a remand is warranted for a new VA examination and opinion to assess whether a current diagnosis of hearing loss and tinnitus exist and, if so, to comment as to the nature and etiology such disabilities. 3. Service connection for an acquired psychiatric disorder. Pursuant to the Board’s June 2020 remand, the Veteran was afforded an initial VA examination in connection with his claim for an acquired psychiatric disorder. The examination report contains a diagnosis of unspecified depressive disorder and alcohol use disorder in remission. The VA examiner indicated that by the time of his enlistment, the Veteran had been already experiencing symptoms of depression and excessive worry, along with nervous trouble of any sort, as shown by a December 22, 1978 Report of Medical History. The Veteran stated, however, that his problems began when he got out of service. He reported that he was required to participate in a gas chamber exercise during basic training and that he still thinks about it to this day. The Veteran further stated that he felt fear and shock going “in there.” He also noted that the flashback would come and trouble him as he would feel boxed in or confined in a limited area. The Veteran reported that he would feel impulsive anger sometimes. The VA examiner made reference to a psychological report dated in June 2017, in which the VA provider diagnosed the Veteran with claustrophobia secondary to exposure to a stressful military event. The examiner then noted that “his exposure to any restriction of respiration seemingly resurrects anxiety symptoms consistent with his experiences within the gas chamber. However, these events are rare and transient. In light of the foregoing, the examiner opined that the claimed condition was less likely than not incurred in or caused by the claimed in-service, event. In support of his opinion, the examiner noted that the Veteran’s records revealed that he experienced depression and anxiety prior to military service and that while the Veteran’s exposure to any restriction of respiration seemingly resurrects anxiety symptoms consistent with his experiences within the gas chamber, the preponderance of his intolerance to authority, acting-out behaviors and self-abusive behaviors, are more likely a result of trauma encountered within his developmental history. VA treatment records show that the Veteran partially attributes his psychiatric symptoms to a gas chamber incident while in the military (see June 28, 2019 progress notes); and that he had several experiences in the military where he was afraid the he could be killed (see July 30, 2019 progress notes). The Board notes that although the September 2020 VA examiner provided a negative nexus opinion on a direct basis, the opinion is supported by a rather conflictive rationale. To that effect, the VA examiner attributed the Veteran’s current unspecified depressive disorder to “the trauma encountered within his developmental history.” The term “developmental history” seems to suggest a life long development, which would not only include the Veteran’s post-service experiences, but also those that occurred prior to and during service. In that regard, the examiner acknowledged in the report that the Veteran’s depression and excessive worry, along with nervous trouble of any sort, seem to have preexisted service. This reasonably raises a new theory of service connection on the basis of service aggravation. However, an opinion as to whether the Veteran’s claimed psychiatric disability clearly an unmistakably pre-existed service, and if so, whether an increase in his disability is attributed to his military service, is a question that still remains unanswered. In light of the above, the Board finds that a remand is warranted for another VA psychiatric examination and opinion to assess these aspects of the claim, to include consideration of service connection on the basis of service aggravation. 4. A TDIU. 5. Basic eligibility to DEA benefits. As noted by the June 2020 Board remand, the parties in the December 2019 JMPR agreed that the Veteran’s claims for a TDIU and basic eligibility to DEA benefits were inextricably intertwined with the service connection claims. The Board is again remanding the issues of entitlement to service connection for bilateral hearing loss, tinnitus, and an acquired psychiatric disorder for further development and adjudication. Given that the claims for entitlement to a TDIU and basic eligibility to DEA benefits may be affected by the outcome of the service connection claims remanded herein, it would be premature to adjudicate the TDIU and basic eligibility to DEA benefits claims until the service connection claims have been considered. Therefore, the issues are inextricably intertwined, and the TDIU and basic eligibility to DEA benefits claims must also be remanded. See Harris v. Derwinski, 1 Vet. App. 180, 183(1991). The matters are REMANDED for the following action: 1. Obtain any updated VA treatment records dated since May 2020. 2. Thereafter, schedule the Veteran for a VA examination in connection with the hearing loss and tinnitus claims. The VA examiner should provide an opinion as to whether the Veteran’s hearing loss and/or tinnitus at least as likely as not (50 percent or greater possibility) had their onset during, or are otherwise related to, military service. Consideration should be given to the December 1979 Statement of Medical Condition in which the Veteran reported “noise problems.” 3. Then, schedule the Veteran for a VA psychiatric examination (or telehealth interview, records review, etc., if an in-person examination is not feasible) by an appropriate medical professional in connection with the acquired psychiatric disorder claim. The examiner should first identify whether the Veteran has a diagnosis for a psychiatric disorder according to the DSM-5 criteria, which may include unspecified depressive disorder, claustrophobia, bipolar disorder and/or anxiety. If a disorder is not diagnosed, it should be explained why this is so. (i) The VA examiner should then provide an opinion as to whether it is at least as likely as not (50 percent or greater probability), that any identified psychiatric disorder had its onset during, or is otherwise related to, the Veteran’s military service. (ii) If no to (i), the VA examiner should provide an opinion as to whether it is clear and unmistakable (i.e., undebatable from a medical standpoint) that the Veteran had a psychiatric disorder prior to service. (iii) If so, the examiner should then provide an opinion as to whether is it clear and unmistakable (i.e., undebatable from a medical standpoint) that the Veteran’s preexisting psychiatric disorder was not aggravated by service, particularly including the gas chamber event described by the Veteran. Aggravation is an increase in severity beyond a temporary flare-up or natural progress of the disease. Consideration should be given to: (1) the Veteran’s statements as to the in-service symptoms experienced following the gas chamber training exercise; and (2) STRs suggesting a preexisting psychiatric disorder. A complete rationale or explanation should be provided for any opinion reached. 4. After the above development has been completed, readjudicate the issues on appeal, including the inextricably intertwined issues of entitlement to a TDIU and entitlement to basic eligibility to DEA benefits. If the benefits sought are not granted in full, issue a Supplemental Statement of the Case (SSOC) and provide an opportunity to respond. If necessary, return the case to the Board for further appellate review. E. BLOWERS Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board William Pagan, 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.