Citation Nr: 21065556 Decision Date: 10/26/21 Archive Date: 10/26/21 DOCKET NO. 08-00 122 DATE: October 26, 2021 ORDER Throughout the appeal period, entitlement to an initial 70 percent rating for a psychiatric disorder, is granted, subject to the laws and regulations governing the payment of monetary benefits. Entitlement to an initial 40 percent rating for a low back disability prior to May 18, 2010, is granted, subject to the laws and regulations governing the payment of monetary benefits. Entitlement to total disability rating based on individual unemployability (TDIU) prior to May 18, 2010, is granted, subject to the laws and regulations governing the payment of monetary benefits. REMANDED Service connection for a left ear hearing loss disability is remanded. FINDINGS OF FACT 1. Throughout the appeal period, the preponderance of the evidence weighs in favor of a finding that the Veteran's psychiatric disorder was manifested by social and occupational impairment in most areas. 2. Prior to May 18, 2010, the preponderance of the evidence weighs in favor of a finding that the Veteran's low back disability was manifested by forward flexion to 30 degrees or less; ankylosis was not shown, and his condition did not require a minimum of six weeks physician prescribed bed rest. 3. Prior to May 18, 2010, the preponderance of the evidence weighs in favor of a finding that the Veteran's service-connected disabilities alone precluded him from obtaining or maintaining substantially gainful employment consistent with his education and experience. CONCLUSIONS OF LAW 1. Throughout the appeal period, the criteria for an initial 70 percent rating, but no higher, for psychiatric disorder have been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.130 2. Prior to May 18, 2010, the criteria for an initial 40 percent rating, but no higher, for a lumbar spine disability have been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.71a. 3. Prior to May 18, 2010, the criteria for entitlement to TDIU have been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1972 to June 1975. He passed away in July 2017. The Appellant, his surviving spouse, has been properly substituted by the Agency of Original Jurisdiction (AOJ) for claims pending at the time of the Veteran's death. See January 2021 Substitution Determination. These claims come to the Board of Veterans' Appeals (Board) from December 2008, November 2010, January 2012, and July 2012 rating decisions. They were previously before the Board in May 2016, when they were remanded for additional development. Specifically, the Board directed the AOJ to obtain all outstanding VA medical records were also obtained and associated with the record in January 2021. With respect to the claims for an increased rating for a psychiatric disorder and entitlement to TDIU, the Board noted an October 2015 examination with pertinent findings relating to these issues had not been considered by the AOJ in the first instance and that remand was required for initial consideration by the AOJ. The Board found the claim for an increased rating for a lumbar spine disability was inextricably intertwined with the issues of service connection for right and left lower extremity radiculopathy and remanded the issues to be decided together. Service connection for right and left lower extremity radiculopathy was granted in a July 2021 rating decision. The issues currently before the Board were readjudicated in a May 2021 Supplemental Statement of the Case, with consideration of the October 2015 examination report. Based on the foregoing, the Board finds there has been substantial compliance with its prior remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Although all the evidence of record has been thoroughly reviewed, only the most relevant and salient evidence is discussed below. See Gonzales v. West, 218 F.3d 1378 (Fed. Cir. 2000). The analysis in this decision focuses on what the evidence shows or fails to show with respect to the matters decided herein. The Appellant should not assume that pieces of evidence not explicitly discussed herein have been overlooked. See Allday v. Brown, 7 Vet. App. 517, 527 (1995). Increased Rating Claims Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule). 38 C.F.R. Part 4. The Rating Schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3. 1. Entitlement to an initial rating in excess of 10 percent for a psychiatric disorder In a July 2012 rating decision, the AOJ granted service connection for a psychiatric disorder and assigned a 10 percent rating effective January 25, 2008. The Veteran appealed that rating decision and argues a higher rating is warranted. Legal Criteria Psychiatric disorders are rated pursuant to the criteria under 38 C.F.R. § 4.130, General Rating Formula for Rating Mental Disorders (General Rating Formula). Under the General Rating Formula, a 10 percent rating is warranted when there is occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or symptoms controlled by continuous medication. A 30 percent rating is assigned when there is occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, mild memory loss (such as forgetting names, directions, recent events). A 50 percent rating is warranted when there is occupational and social impairment with reduced reliability and productivity due to such symptoms as flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory, e.g., retention of only highly learned material, forgetting to complete tasks; impaired judgment; impaired abstract thinking; disturbances of motivation and mood; and difficulty in establishing and maintaining effective work and social relationships. A 70 percent rating is assigned where there is objective evidence demonstrating occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately, and effectively; impaired impulse control, such as unprovoked irritability with periods of violence; spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances, including work or a work-like setting; and the inability to establish and maintain effective relationships. The next higher and maximum 100 percent rating is warranted when there is total occupational and social impairment, due to such symptoms as persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living, including maintenance of minimal personal hygiene; disorientation to time and place; memory loss for names of close relatives, own occupation, or own name. Symptoms listed in the General Rating Formula are not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). Accordingly, the evidence considered in determining the level of impairment under 38 C.F.R. § 4.130 is not restricted to the symptoms provided in the diagnostic code, nor is the presence of certain symptoms dispositive of a particular rating. Instead, VA must engage in a holistic analysis in which it assesses the severity, frequency, and duration of the signs and symptoms of the veteran's service-connected psychiatric disability as it pertains to the level of occupational and social impairment. Factual Background and Analysis In a July 2012 rating decision, the AOJ granted service connection for a psychiatric disorder and assigned a 10 percent rating, effective January 25, 2008. The Veteran contends a 70 percent is warranted. See March 2013 Notice of Disagreement. A March 2008 private psychology note reflects he was injured while working at a grocery store in February 2008 when a box hit him in the head. Following that injury, he reported to his psychologist that his symptoms of poor memory, impaired concentration, and sustaining focus were more evident. Similarly, prior symptoms of irritability, low frustration tolerance, and confusion were acknowledged. The psychologist indicated that the Veteran demonstrated a decline in his overall psychological functioning and exhibited appreciable impairments in vocational and social adaptability; cognitive, emotional, and behavioral limitations were manifested and a comprehensive neuropsychological evaluation was recommended. An April 2008 private psychological report reflects the Veteran continued to experience poor short-term memory following the accident where a box struck him on the side of his temple. The psychologist noted that sleep disturbances, lability of moods, low frustration tolerance, irritability, poor capacity for the acquisition and sustaining of focus and concentration, and transient short-term memory deficits had become significantly more disruptive of daily functioning. At an April 2008 VA mental health appointment, the Veteran was adequately groomed with an anxious mood and affect. He was worried about his memory and also spoke of his recurrent thoughts and dreams of an incident in the military and how this affected his concentration and attention. An April 2008 function report completed by the Appellant for the purposes of the Veteran's application for SSA disability benefits reflects the Veteran had significantly impaired sleep (awake approximately every hour). She further reported he often forgot things, did not finish sentences, had difficulty concentrating, and would forget what he was doing in the middle of tasks. At a May 2008 private psychology appointment, the Veteran continued to report poor capacity for the acquisition and sustaining of focus and concentration and short-term memory. The Veteran indicated his recent neurological report was unremarkable and that he was informed that closed-head injuries can often result in "soft neurological" symptoms where cognitive inefficiency can result and require several months to become effectively resolved. At a May 2008 VA mental health appointment, the Veteran reported episodes of forgetfulness earlier that week and acknowledged he had gone through some red lights. He reported continued problems with forgetfulness, irritability, poor sleep, and nightmares. He brought copies of his psychological and neuropsychological testing performed by a community psychologist which indicated testing revealed no evidence of malingering. The Veteran also endorsed depressed mood and at the examination he was anxious with congruent affect/mood. A November 2008 mental health note reflects the Veteran experienced increased anxiety, problems following asleep, and that he was socially isolative. A September 2008 Social Security Administration (SSA) disability function report reflects the Veteran reported difficulty with memory, impaired sleep, and trouble focusing. He reported enjoying social activities such as spending time with family and attending church. At a November 2009 VA mental health appointment, the Veteran reported low energy. There was no evidence of delusional thinking; he was oriented to time, place and person, and was appropriately groomed. Mood was dysthymic and affect was congruent; memory was intact and insight and judgment appeared good. A May 2010 private doctor note indicates the Veteran was frequently irritable but denied any aggressive restrictive behavior. The Veteran also endorsed difficulty with concentration, limited attention span, and trouble staying on task. At a June 2012 VA mental health examination, the examiner noted that the Veteran had back surgery two months prior and was in significant pain; it was noted the Veteran was currently raising his two step-grandchildren, ages four and five, and that he was very involved in his local church. It was noted that the Veteran did not have any history of mental health treatment and was only evaluated (not treated) by a private provider. Regarding symptoms, the examiner noted the Veteran had anxiety which was limited to flying and that the Veteran no longer flew. The examiner found that the Veteran's psychiatric symptoms were not severe enough either to interfere with occupational and social functioning or to require continuous medication. An October 29, 2014, private psychological report indicates the Veteran had recently reinjured his back and the restrictive and reclusive lifestyle resulting from his injury was a major contributing factor to his escalating symptoms of depression. He endorsed symptoms of a depressed mood throughout most of the day nearly every day. Cognitive impairments included his concerns of poorer ability to either acquire or maintain focus and concentration resulting in poor information processing. He often experienced difficulty following social conversations or themes of movie or televisions shows due to internal distraction of his chronic pain syndrome. Sleep impairment, including onset and maintenance, was also acknowledged. Low frustration tolerance, ease of irritability, lability of moods, and destabilization of identity had occurred due to his mental health disorder. The examiner opined that the Veteran's clinical impairments precluded his ability to acquire and sustain gainful employment. A June 2015 private psychological report reflects the Veteran reported that following his April 2012 back surgery the quality of his physical and psychological functioning had markedly deteriorated. He reported symptoms of psychasthenia (phobias, obsessions, compulsions), dysphoria (state of generalized unhappiness), and anhedonia (the inability to feel pleasure). He acknowledged his depressive symptoms were present most of the day, nearly every day. He further acknowledged difficulty with sleep onset and maintenance, and the examiner noted this contributed to his cognitive deficits and emotional lability. Since his back surgery, he reported he became socially withdrawn and isolated and was no longer motivated nor enjoyed the company of others, regardless of prior value of their relationships. Additional symptoms included the difficulty maintaining attention and concentration for extended periods of time resulting in diminished processing of information. At an October 2015 VA mental health examination, the Veteran reported significant back pain daily. He stated he got along with his wife although acknowledged rough times; he indicated they were raising their three grandchildren together. He indicated he used to attend church more often but did not as much due to decreased mobility; he described church as his "second home" where he received most of his social support. He stated he worked in the cleaning services industry until 2009, was awarded SSA disability benefits that same year, and had not worked since. He reported he was unable to work due to his service-connected mental health disorder and back disability in addition to non-service-connected cancer, heart problems, and other medical issues that were overwhelming. Symptoms noted were depressed mood, anxiety, panic attacks more than once a week, chronic sleep impairment, flattened affect, and circumstantial, circumlocutory, or stereotyped speech. On examination, the Veteran was appropriate dressed and groomed with good hygiene; behavior was appropriate and cooperative and he was very polite. Speech was logical, coherent, and spoken in a normal rate and tone; thought processes were appropriate and he did not demonstrate any overt symptoms of psychosis. Mood appeared depressed and he demonstrated flattened affect. The examiner characterized the Veteran's mental health disorder as manifested by occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, and/or mood. Following a review of the record, the Board finds that during the appeal period, the evidence supports a finding that the Veteran's psychiatric disorder is best characterized as manifested by social and occupational impairment in most areas, thus warranting a 70 percent rating. The Board notes that throughout the appeal period the Veteran has reported symptoms of anxiety, memory impairment, difficulty focusing, and disturbed sleep. Information processing was diminished, and the Veteran frequently endorsed low mood and irritability. Further, the Board finds the June 2012 VA examination to be of little probative value, as several treatment records both before (including prior to the period on appeal) and following that examination indicate that the Veteran did in fact take psychiatric medication and that he experienced many psychiatric symptoms not documented in that report. The maximum 100 percent rating is not warranted. Crucially, entitlement to a 100 percent rating not only requires total occupational impairment, but also requires total social impairment, which has not been persuasively shown by the evidence of record in this case. See 38 C.F.R. § 4.130 (emphasis added). During the appeal period, the Veteran remained married to his wife, assisted in raising his grandchildren, and identified church as his primary social support. Thus, total social impairment has not been shown. Consideration has been given to the benefit of the doubt doctrine; however, as the preponderance of the evidence is against a rating in excess of 70 percent, it is not applicable. See 38 U.S.C. § 5107(b); see also Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). 2. Entitlement to a rating in excess of 10 percent for a lumbar spine disability prior to May 18, 2010 Legal Criteria All service-connected spine disabilities are rated pursuant to The General Rating Formula for Diseases and Injuries of the Spine (General Rating Formula), unless the spinal disability is rated under the Formula for Rating Intervertebral Disc Syndrome (IVDS) Based on Incapacitating Episodes (Incapacitating Episodes Rating Formula). 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5243. Under the General Rating Formula, a percent disability rating is warranted when forward flexion is to 30 degrees or less; or, there is evidence of favorable ankylosis of the entire thoracolumbar spine. The next highest 50 percent evaluation is warranted if there is unfavorable ankylosis of the entire thoracolumbar spine. The next highest and maximum 100 percent evaluation is assigned if there is unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, General Rating Formula. Under the Incapacitating Episodes Rating Formula, a 20 percent rating is warranted for incapacitating episodes having a total duration of at least two weeks but less than four weeks during the past twelve months. A 40 percent rating is warranted for incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past twelve months, and a 60 percent rating is warranted for incapacitating episodes having a total duration of at least six weeks during the past twelve months. 38 C.F.R. § 4.71a, Incapacitating Episodes Rating Formula. For purposes of evaluation under this rating formula, an "incapacitating episode" is defined as a period of acute signs and symptoms due to intervertebral disc syndrome that require bed rest as prescribed by a physician and treatment by a physician. Id. at Note (1). Factual Background and Analysis In a November 2010 rating decision, the AOJ granted service connection for a lumbar spine disability rated as 10 percent disabling from January 16, 2007, through May 17, 2010, and as 40 percent disabling thereafter. The Veteran's representative indicated that he only disagreed with the 10 percent rating assigned prior to May 18, 2010, and that they believed the Veteran's spine should be rated as 40 percent disabling. See March 2011 Notice of Disagreement. At a May 2010 VA spine examination, the Veteran reported daily, constant, sharp pain localized in his lumbar region and also reported back spasms. He further reported symptoms of fatigue, decreased motion, stiffness, and weakness. He denied flare-ups, incapacitating episodes, and bowel/bladder incontinence. The Veteran reported he used a cane to walk and that he was unable to walk more than a few yards. On examination, there was evidence of lumbar flattening but no kyphosis, lordosis, scoliosis, or ankylosis. Objectively, there was no evidence of spasm, atrophy, guarding, or weakness, but there was objective evidence of pain with motion on the left side and tenderness bilaterally. Muscle spasm, localized tenderness, or guarding was not severe enough to be responsible for abnormal gait or spinal contour. On examination, flexion was to 20 degrees, extension to 10 degrees, right and left lateral flexion each to 10 degrees, and right and left lateral rotation to 15 degrees. Following repetitive use testing, flexion was limited to 10 degrees. The Veteran described the effects on his usual daily activities as severe with regard to chores, exercise, sports, and recreation, and described the effects of shopping and dressing as mild. The Board has reviewed the evidence of record and finds that prior to May 18, 2010, an initial 40 percent rating for the Veteran's low back disability is warranted. The Veteran's claim was filed in January 2007, yet the first examination performed to assess the severity of his low back was in May 2010, more than three years later. The May 2010 examination warrants a 40 percent rating, but no higher, based on limitation of flexion to 30 degrees or less. A rating in excess of 40 percent is not warranted as the preponderance of the evidence weighs against a finding that the Veteran has unfavorable ankylosis or that his back condition requires a minimum of six weeks physician prescribed bed rest. Accordingly, affording the Veteran the benefit of the doubt, a 40 percent rating prior to May 18, 2010, is granted. 3. Entitlement to TDIU prior to May 18, 2010 Entitlement to TDIU was granted in a January 2012 rating decision, effective May 18, 2010. As the claim for TDIU is part and parcel of the Veteran's increased rating claims on appeal, and because the AOJ did not grant the benefit in full (i.e. entitlement to TDIU for the entire period on appeal), that portion of the claim that remains unresolved is still on appeal. See Harper v. Wilkie, 30 Vet. App. 356, 360-62 (2018). Legal Criteria An award of TDIU requires that the claimant show an inability to undertake substantially gainful employment as a result of a service-connected disability or disabilities. 38 C.F.R. § 4.16(b) ("[A]ll veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled."). An award of TDIU does not require a showing of 100 percent unemployability. See Roberson v. Principi, 251 F.3d 1378, 1385 (Fed. Cir. 2001). Rather, the central inquiry is "whether [a] veteran's service-connected disabilities alone are of sufficient severity to produce unemployability." Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). In determining whether unemployability exists, consideration may be given to a veteran's level of education, special training, and previous work experience, but not to age or to any impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. Unlike the regular disability rating schedule, which is based on the average work-related impairment caused by a disability, "entitlement to TDIU is based on an individual's particular circumstances." Rice, 22 Vet. App. at 452. A total disability rating may be assigned when the schedular rating is less than total, where, if there is only one disability, the disability is rated at 60 percent or more, or where, if there are two or more disabilities, at least one disability is rated 40 percent or more and there is sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). Factual Background and Analysis The Veteran is claiming he is unable to obtain or maintain a substantially gainful occupation consistent with his education and experience due to his service-connected spine and his nonservice-connected heart and kidney disorders. See May 2015 TDIU Application. In May 2009, the SSA found the Veteran disabled since September 2003 due to, in part, his chronic low back disability. A physician who examined the Veteran in connection with his claim indicated the Veteran could not perform repetitive bending or twisting at the waist, overhead work, climbing, or jumping. In a March 2013 statement, the Veteran's representative indicated that "main cause of [the Veteran's] unemployment are service connected lumbar [degenerative disc disease] and bilateral ankle strains and their severe painful orthopedic symptomatology, in conjunction with his service connected psychiatric disability, tinnitus, and right ear hearing loss." Prior to May 18, 2010, the Veteran's service-connected disabilities included: a psychiatric disorder (now rated as 70 percent disabling beginning January 25, 2008); a lumbar spine disability (now rated as 40 percent disabling beginning January 16, 2007); left and right lower extremity radiculopathy (each separately rated as 10 percent disabling beginning January 16, 2007); left and right ankle disabilities (each separately rated as 10 percent disabling beginning January 16, 2007); tinnitus (rated as 10 percent disabling beginning January 16, 2007); and right ear hearing loss (rated as noncompensable). During this time, he meets the schedular requirements for entitlement to TDIU. Accordingly, the question before the Board is whether prior to May 18, 2010, the Veteran's service-connected disabilities alone precluded him from obtaining or maintaining a substantially gainful occupation due solely to his service-connected disabilities. Following a review of the evidence, the Board finds that entitlement to TDIU prior to May 18, 2010, is warranted. The Veteran's entire career was spent working in physically demanding jobs; he primarily worked in janitorial services. His back, bilateral ankles, and bilateral lower extremity radiculopathy would make any physically demanding job difficult during this time. Further, his sleep impairment has resulted in confusion, irritability, and other psychiatric symptoms which would make concentrating on tasks difficult. Therefore, prior to May 18, 2010, entitlement to TDIU is warranted. In making this finding, the Board acknowledges that it appears the Veteran was working sporadically during the appeal period, beginning January 16, 2007, and prior to May 18, 2010. Significantly, a May 2007 VA treatment record indicates the Veteran was working part-time. A March 2008 private psychology note reflects he was injured while working at a grocery store in February 2008. Additionally, an October 2015 VA mental health examination reflects the Veteran reported working in the cleaning services industry up until 2009. The Board's grant of TDIU prior to May 18, 2010, does not set an effective date; the AOJ will set the effective date for the grant of entitlement to TDIU, as this preserves the Appellant's right to appeal in the first instance. In doing so, the AOJ should consider whether the Veteran's work during this time was marginal. (CONTINUED ON NEXT PAGE) REASONS FOR REMAND 1. Service connection for a left ear hearing loss disability In May 2016, the Board remanded this claim to obtain an addendum opinion regarding the etiology of the Veteran's left ear hearing loss. The Board specifically instructed that the opinion be provided by an otolaryngologist and also indicated the provider must specifically address whether the in-service noise exposure resulted in damage to auditory hair cells even though findings may or may not suggest a recovered temporary threshold shift in service; if the provider believes that auditory cell hair damage did result from the in-service noise exposure, he or she must comment on the likelihood that such damaged auditory hair cells would result in greater permanent hearing loss than otherwise would be manifest. The Board also instructed that the provider discuss the Veteran's in-service pure tone threshold shifts in addition to his conceded exposure to acoustic trauma during service. A June 2017 opinion was provided by a staff audiologist, not an otolaryngologist as the Board's prior remand instructed. Further, the audiologist failed to respond to and/or address information regarding auditory hair cells, threshold shifts, and conceded exposure to acoustic trauma. Given that there has not been substantial compliance with the prior remand directives, an additional remand is required. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The Appellant and her representative have the right to submit additional evidence and argument on the matter the Board has remanded. See Kutscherousky v. West, 12 Vet. App. 369 (1999). This matter is REMANDED for the following action: 1. Obtain an addendum opinion regarding the etiology of the Veteran's left ear hearing loss disability. This opinion must be provided by an otolaryngologist. The medical provider must review the examination file, to include all prior audiological examinations, and a copy of this remand. Following a review of the record and with consideration of the Veteran's statements in the claims file, the otolaryngologist should provide the following information: (a) Determine whether it is at least as likely as not (50 percent probability or higher) that the Veteran's left ear hearing loss is etiologically related to his exposure to acoustic trauma during active service. Why or why not? The provider is informed that any opinion based solely on the fact that hearing loss did not manifest during service will be deemed inadequate. The provider is further informed that although the Veteran is deceased, his lay statements of record must be taken into account. (b) Determine whether the Veteran's in-service noise exposure resulted in damage to auditory hair cells even though findings may or may not suggest a recovered temporary threshold shift in service. Why or why not? If the answer is in the affirmative, comment on the likelihood that such damaged auditory hair cells would result in greater permanent hearing loss than otherwise would be manifest. Why or why not? (c) Discuss the significance (or lack thereof) of the Veteran's in-service pure tone threshold shifts. (d) Discuss the significance (or lack thereof) of the Veteran's conceded exposure to acoustic trauma during service. A complete rationale for each opinion is required. If the provider is unable to provide any opinion without resorting to speculation, he or she must explain why this is so. 2. This case has been in remand status for over FIVE years. The AOJ must review the opinions to ensure that (a) it is completed by an otolaryngologist, and (b) that the otolaryngologist responded to all inquiries above and provided a rationale for each response. If any portion of the opinions are deficient, corrective action must be taken immediately. Jennifer White Veterans Law Judge Board of Veterans' Appeals Attorney for the Board O'Connell, Jessica L. 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.