Citation Nr: 21064901 Decision Date: 10/21/21 Archive Date: 10/21/21 DOCKET NO. 17-54 632 DATE: October 21, 2021 REMANDED Entitlement to service connection for bilateral hearing loss is remanded. Entitlement to service connection for an acquired psychiatric disorder, to include anxiety, unspecified depressive disorder, and alcohol use disorder, and claimed as adjustment disorder with bipolar disease, is remanded. A total disability rating based on individual unemployability (TDIU) is remanded. Entitlement to Dependents Educational Assistance (DEA) benefits under Chapter 35, Title 38, of the United States Code is remanded. REASONS FOR REMAND The Veteran served on active duty from July 1979 to December 1979. These matters come to the Board of Veterans' Appeals (Board) on appeal from an April 2017 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In May 2019, the Board denied the Veteran's claims of entitlement to service connection for an acquired psychiatric disorder, bilateral hearing loss, and tinnitus, and entitlement to a TDIU and DEA benefits. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). In December 2019, the Veteran and VA's Office of General Counsel filed a Joint Motion for Partial Remand (JMPR) requesting that the Court vacate the Board's decision as it pertains to those issues and remand the case for readjudication. In January 2020, the Court granted the JMPR and returned the case to the Board for further development and readjudication in compliance with the directives specified. In June 2020 and January 2021, the Board remanded the case for further evidentiary development. As the requested development has not been completed, however, further action to ensure compliance with the remand directive is required. Stegall v. West, 11 Vet. App. 268 (1998). In an August 2021 rating decision, the RO granted service connection for tinnitus with an evaluation of 10 percent, effective January 27, 2017. As the Veteran has not appealed his rating or effective date, the Board finds that this grant of service connection constitutes a full award of the benefits sought on appeal with respect to that issue. See Grantham v. Brown, 114 F.3d 1156, 1158-59 (Fed. Cir. 1997) (holding that where an appealed claim for service connection is granted during the pendency of the appeal, a second notice of disagreement must thereafter be timely filed to initiate appellate review of the claim concerning "downstream" issues, such as the compensation level assigned for the disability and the effective date). A remand by the Board confers on the claimant, as a matter of law, the right to compliance with the remand orders. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Failure of the Board to ensure compliance with remand instructions constitutes error and warrants the vacating of a subsequent Board decision. Id. The Board remanded this appeal in January 2021 so that the Agency of Original Jurisdiction (AOJ) could obtain a VA examination and VA medical opinion, and then readjudicate the Veteran's claims for service connection for bilateral hearing loss and an acquired psychiatric disorder. In July 2021, the AOJ issued a supplemental statement of the case (SSOC) continuing to deny the claims. Bilateral Hearing Loss In the January 2021 remand, the Board noted that the September 2017 VA examination report did not reference or mention the Veteran's service treatment records 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 observes 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 appeared 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 found that a remand was warranted for a new VA examination and opinion. Pursuant to the January 2021 remand, the Veteran was afforded another VA audiological examination in April 2021. The VA examiner at that time determined that the Veteran's puretone thresholds could not be tested and that test results were not valid for rating purposes. She explained that testing indicated extremely poor speech recognition testing and puretone threshold averages agreement despite re-instruction and rechecking of thresholds. She further reported that variability of response was noted in bone conduction thresholds with as much as a 20 dB hearing level discrepancy in thresholds at one frequency. She noted that the Veteran was able to repeat Maryland CNC words with 92 percent accuracy when presented at 55 dB hearing level in the right ear, and 92 percent accuracy when presented at 55 dB hearing loss in the left ear. She referenced that the Veteran was communicating easily at a normal conversational level during the interview when unable to directly see her face due to COVID-19 masking requirements. She also noted that the interview was performed at 55 dB hearing level through headphones with face masks with no difficulty. She stated that contralateral acoustic reflex thresholds were present at low levels, bilaterally, and that non-organic hearing loss or symptom magnification is suspected. The examiner concluded that she was unable to determine the presence and or severity of hearing loss due to inconsistent responses despite re-instruction and determined that she could not provide a medical opinion regarding the etiology of the Veteran's hearing loss without resorting to mere speculation. 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 to assess whether a current diagnosis of hearing loss exists and, if so, to comment as to its nature and etiology. Acquired Psychiatric Disorder Pursuant to the Board's January 2021 remand, the Veteran was afforded a VA mental disorders examination in March 2021. The VA examiner diagnosed the Veteran with antisocial personality disorder and explained the Veteran's history of arrests for traffic violations, domestic violence charges and serious felonies, as well as a history of drug abuse and impulsive behaviors. She opined that the Veteran met the diagnostic criteria for antisocial personality disorder and that it was less likely than not that his symptoms were related to service. However, in rendering a negative nexus opinion the VA examiner did not address the diagnoses of anxiety, unspecified depressive disorder, and alcohol use disorder in remission in the record or the Veteran's statements as to the in-service symptoms experienced following the gas chamber training exercise. Accordingly, the Board finds that a remand is warranted for a new VA examination and opinion. TDIU and DEA Benefits Given that the claims entitlement to a TDIU and basic eligibility to DEA benefits may be affected by the outcome of the service connection claims for bilateral hearing loss and an acquired psychiatric disorder, 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 actions: 1. Schedule the Veteran for a VA hearing loss examination with a suitably qualified VA medical professional, other than the VA examiners who conducted the prior VA examinations of record. The VA examiner should provide an opinion as to whether the Veteran's hearing loss at least as likely as not (50 percent or greater possibility) had its onset during, or is otherwise related to, military service. Consideration should be given to the December 1979 Statement of Medical Condition in which the Veteran reported "noise problems." If the audiometric test results again are determined to be invalid, the examiner should clearly explain the extent to which, if any, the Veteran's lack of cooperation contributed to the examiner's being unable to obtain valid results. A complete rationale or explanation should be provided for any opinion reached. 2. Schedule the Veteran for a VA mental disorders examination with a suitably qualified VA medical professional, other than the VA examiners who conducted the prior VA examinations of record. 3. The examiner should first identify whether the Veteran has a diagnosis for a psychiatric disorder according to the DSM criteria, which may include unspecified depressive disorder, claustrophobia, bipolar disorder, and/or anxiety. The examiner should note that the psychiatric disorder need not be present at the time of the file review; rather it is sufficient if it previously existed during the pendency of the claim and then it resolved prior to the file review. The examiner should record the full history of the identified disorders, including the Veteran's competent account of his symptoms. If any specific disorder is ruled out, a complete explanation must be provided. That explanation should include a discussion of all the pertinent evidence of record, to include lay evidence. So, for example, if the clinician were to find that delusional disorder is not a current disability, then the explanation should include a discussion of the VA medical records, prior VA examinations, as well as the Veteran's lay statements regarding his condition. If the clinician determines that any prior diagnosis cannot be validated, she or he should explain why. (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) service treatment records suggesting a preexisting psychiatric disorder. A complete rationale or explanation should be provided for any opinion reached. 4. After completing the requested actions, and any additional action deemed warranted, the AOJ should readjudicate the claims. If the benefits sought on appeal remain denied, the Veteran and his representative should be furnished a SSOC and given the opportunity to respond thereto. The case should then be returned to the Board for further appellate consideration, if in order. S.C. Krembs Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Bilstein, 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.