Citation Nr: 21003266 Decision Date: 01/21/21 Archive Date: 01/21/21 DOCKET NO. 15-34 183 DATE: January 21, 2021 REMANDED Entitlement to service connection for bilateral hearing loss is remanded. Entitlement to service connection for tinnitus is remanded. Entitlement to service connection for an acquired psychiatric condition, to include posttraumatic stress disorder (PTSD) and dysthymic disorder, is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Air Force from July 1966 to July 1970, and in the United States Army from November 1990 to June 1991, which includes service in the Republic of Vietnam (RVN) during the Vietnam Era and service in Saudi Arabia during the Gulf War Era. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a May 2013 rating decision issued by a Department of Veterans Affairs (VA) regional office. This matter was previously remanded by the Board in December 2018. In December 2018, the Veteran testified via video conference before the undersigned Veterans Law Judge (VLJ). A copy of the hearing transcript has been associated with the claims file. See December 2018 Board Hearing Transcript. As an initial matter, the Board notes that the Veteran initially filed a claim of entitlement to service connection for PTSD. See January 2011 VA Form 21-526. However, it is well settled that when a Veteran makes a claim, they are seeking service connection for symptoms regardless of how those symptoms are diagnosed or labeled. Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). Here, the Veteran has been diagnosed with dysthymic disorder. See March 2013 VA Initial PTSD Disability Benefits Questionnaire (DBQ). Therefore, the Board has recharacterized the Veteran’s claim as one of entitlement to service connection for an acquired psychiatric disorder, to include PTSD and dysthymic disorder. 1. Entitlement to service connection for bilateral hearing loss is remanded. 2. Entitlement to service connection for tinnitus is remanded. 3. Entitlement to service connection for an acquired psychiatric condition, to include PTSD and dysthymic disorder, is remanded. The Board regrets the delay associated with this remand, particularly as this matter is the subject of a prior remand. However, based on a review of the evidence of record, the Board finds that another remand is necessary as the Agency of Original Jurisdiction (AOJ) has not substantially complied with the December 2018 remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Specifically, in December 2018, the Board instructed the AOJ to schedule the Veteran for VA examinations regarding the nature and etiology of his claimed conditions. The AOJ returned this matter to the Board without conducting the requested examinations or obtaining the requested opinions, finding that the Veteran had failed to report to examinations scheduled in May 2020. See May 2020 Supplemental Statement of Claim. However, there is no indication in the claims file that the Veteran was informed of the location, date, and time of the VA examination. See Hyson v. Brown, 5 Vet. App. 262, 265 (1993) (VA has the burden to demonstrate that notice was sent to the claimant’s last address of record); see also 38 C.F.R. § 3.1(q) (“Notice means written notice sent to a claimant or payee at his or her latest address of record.”). Therefore, in an effort to ensure compliance with VA’s duty to assist, the Board finds that a remand is warranted to provide the Veteran with proper notice and an opportunity to appear for a VA examination. See Stegall v. West, supra. The Veteran is cautioned that failure to report for a scheduled examination or failure to cooperate with any requested development may result in the denial of his claim. 38 C.F.R. § 3.655. Accordingly, the matters are REMANDED for the following action: 1. With the Veteran’s assistance as appropriate, obtain and associate with the electronic claims file any outstanding VA treatment records from April 2020 to current. 2. The Board recognizes the potential practical difficulties in scheduling an examination in light of the COVID-19 epidemic and requests flexibility and understanding in affording the Veteran any warranted examination. 3. After completing the above, and any additional development warranted by the record, schedule the Veteran for an examination with an appropriate clinician regarding the nature and etiology of the Veteran’s bilateral hearing loss and tinnitus. The entire claims file must be provided to the, and reviewed by, the examiner, and any indicated tests, studies, or evaluations should be conducted. The examiner is asked to: (a.) Obtain the Veteran’s detailed lay in-service and post-service history, including onset of symptomatology, employment, and noise exposure. (b.) Opine as to whether it is at least as likely as not (i.e. a 50 percent or greater probability) that the Veteran’s bilateral hearing loss is related to his military service, to include conceded noise exposure. (c.) Opine as to whether it is at least as likely as not (i.e. a 50 percent or greater probability) that the Veteran’s tinnitus is related to his military service, to include conceded noise exposure. (d.) In rendering the requested opinions, the examiner is instructed to consider and address: i. The Veteran’s self-reported lay history; and ii. Conceded noise exposure. Any opinion expressed by the examiner must “contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008). If medical literature is relied upon in rendering a determination, the examiner should identify and specifically cite each reference material utilized. If the examiner is unable to offer an opinion without resort to speculation, a thorough explanation as to why an opinion cannot be rendered should be provided. THE EXAMINER IS REMINDED THAT NOTING THAT HEARING LOSS DID NOT MANIFEST IN SERVICE AS THE SOLE BASIS FOR FORMING A NEGATIVE NEXUS OPINION, WITHOUT ADDITIONAL EXPLANATION, WILL NOT BE ADEQUATE. THE EXAMINER IS ALSO REMINDED THAT, IF AN OPINION IS BASED ON THE INSTITUTE OF MEDICINE’S 2006 REPORT, TITLED “NOISE AND MILITARY SERVICE: IMPLICATIONS FOR HEARING LOSS AND TINNITUS,” THE APPARENTLY CONTRADICTORY FINDINGS THEREIN MUST BE ADDRESSED. SEE MCCRAY V. WILKIE, 31 VET. APP. 243 (2019). 4. After completing the development in Section One, and any additional development warranted by the record, schedule the Veteran for a VA examination with an appropriate clinician to determine the nature and etiology of any current acquired psychiatric disorder, including PTSD and dysthymic disorder. The entire claims file must be provided to, and reviewed by, the examiner, and any indicated tests, studies, or evaluations should be performed. The examiner is asked to: (a.) Obtain the Veteran’s detailed lay history, including onset and progression of symptomatology. (b.) If the Veteran is diagnosed with PTSD, opine as to whether it is at least as likely as not (a 50 percent or greater probability) related to an in-service stressor. The examiner should specify: i. what stressor was sufficient to produce PTSD; ii. whether the remaining diagnostic criteria to support the diagnosis of PTSD have been satisfied; and iii. whether there is a link between the current symptomatology and one or more of the in-service stressors. (c.) For each diagnosed acquired psychiatric disorder other than PTSD, opine as to whether it is at least as likely as not (i.e. a 50 percent or greater probability) that such acquired psychiatric disorder had its onset during, or is otherwise related to, the Veteran’s active duty service. The examiner is advised that the Veteran is competent to report the Veteran’s symptoms and history, and such report must be specifically acknowledged and considered in formulating any opinion. If the examiner rejects any such reports, they must provide a reason for doing so. The term “at least as likely as not” does not mean within the realm of medical possibility. Rather, it means that the weight of the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of the conclusion as it is to find against the conclusion. Any opinion expressed by the examiner should be accompanied by a complete rationale. If medical literature is relied upon in rendering a determination, the examiner should identify and specifically cite each reference material utilized. If the examiner is unable to offer an opinion without resort to speculation, a thorough explanation as to why an opinion cannot be rendered should be provided. 5. THE AOJ MUST REVIEW THE CLAIMS FILE AND ENSURE THAT THE FOREGOING DEVELOPMENT ACTION HAS BEEN COMPLETED IN FULL. IF ANY DEVELOPMENT ACTION IS INCOMPLETE, THE APPROPRIATE CORRECTIVE ACTION MUST BE IMPLEMENTED. IF ANY REPORT OR OPINION DOES NOT INCLUDE ADEQUATE RESPONSES TO THE SPECIFIC OPINIONS REQUESTED, IT MUST BE RETURNED TO THE PROVIDING EXAMINER FOR CORRECTIVE ACTION. YVETTE R. WHITE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. T. Martin III, 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.