Citation Nr: 21065920 Decision Date: 10/27/21 Archive Date: 10/27/21 DOCKET NO. 16-54 651 DATE: October 27, 2021 REMANDED Entitlement to service connection for a bilateral ear condition, to include hearing loss and recurrent infections, is remanded. Entitlement to service connection for an acquired psychiatric disorder, to include unspecified schizophrenia, psychotic disorder, and depressive disorder, is remanded. REASONS FOR REMAND The Veteran served on active duty from May 1976 to October 1976. He appeals a September 2015 rating decision by the Department of Veterans Affairs (VA) Agency of Original Jurisdiction (AOJ) denying entitlement to service connection for a back condition, bilateral shoulder condition, bilateral ear condition, and acquired psychiatric disorder, among other issues. A Board of Veterans' Appeals (Board) hearing was held in March 2019. A transcript is of record. In May 2019, the Board remanded the appeal to obtain Social Security Administration (SSA) records. In December 2020, the Board remanded to obtain adequate VA examinations and medical opinions. Subsequent to this development, the Veteran was service connected for a back condition and bilateral shoulder condition. See July 2021 rating decision. This is considered a full grant of those issues and they are, therefore, no longer before the Board. However, entitlement to service connection for an ear condition and acquired psychiatric disorder are still on appeal and are currently before the Board. The Board apologizes for the additional delay; however, a third remand is required. Ear Condition The Board finds the March 2021 VA examination inadequate. First, the Board requested a VA examination conducted to assess the nature and etiology of the Veteran's ear conditions, but it is not apparent whether the nurse practitioner who provided the March 2021 Ear Conditions Disability Benefits Questionnaire completed an in-person examination as the box for such was not checked. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Additionally, the examination appears to contain contradicting evidence. For example, the VA examiner noted the Veteran had multiple signs and symptoms of Meniere's syndrome, but concluded there was no "diagnosis [for the Veteran's ears] because there are no findings, signs and/or symptoms to support a diagnosis." See March 2021 VA examination report (Veteran has tinnitus, vertigo, hearing loss; positive romberg test). Despite a lack of diagnosis, the nurse practitioner found the Veteran's right ear condition less likely than not related to service. As rationale, she noted the Veteran served for five months and was discharged during basic training with no evidence of an audiogram prior to or at discharge. Id. She then noted "entrance and exit examinations were normal with no documentation of hearing deficits." Id. However, the Veteran did not receive a separation examination for his discharge from service, which contradicts the nurse practitioner's statement that his exit examination was normal. Further, this opinion did not take into account the Veteran's competent contentions that he noticed hearing loss in service after a right earache, and that he continued to have right earaches through present day. See March 2019 Board Hr. Tr. at 14-16. As the March 2021 VA examination is inadequate, a remand is required. Acquired Psychiatric Disorder The Veteran was afforded a VA examination in March 2021 to assess the nature and etiology of any acquired psychiatric disorders. The December 2020 Board remand requested a VA examiner provide an opinion for each identified acquired psychiatric disorder. The VA examiner noted a diagnosis of "unspecified schizophrenia spectrum and other psychotic disorder" but noted the record and examination results were "more consistent with atypical psychosis, possibly secondary to historical head injury." See March 2021 VA examination report. The VA examiner did not provide an opinion for each individual diagnosis, as instructed. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Rather, he opined that the Veteran's unspecified schizophrenia was less likely than not incurred in or related to his time in service. As rationale, the VA examiner noted the Veteran claimed he received a medical discharge in service for psychiatric reasons and received psychiatric treatment in service, including treatment "from a naval base in San Diego in 1976." Id. The VA examiner noted, however, that service treatment records do not reflect in-service treatment for a psychiatric disorder and a July 1976 in-service report noted the Veteran did not have any incapacitating physical or mental disability. Id. Certainly, this evidence could discredit the Veteran's statements of in-service treatment; however, the VA examiner failed to address the other potential diagnoses of record, including his own diagnosis of atypical psychosis. Most importantly, the VA examiner did not consider the Veteran's statements of record that the fear and peer pressure of basic training created "a lot of stress and anxiety," especially combined with the events surrounding his discharge. See March 2019 Board Hr. Tr. at 18-19. Additionally, it is unclear what head injury the March 2021 VA examiner was referring to in his opinion and whether that head injury occurred in service. For these reasons, a remand is required. The matters are REMANDED for the following action: 1. Obtain any relevant updated private and VA treatment records that have not already been obtained and associate the same with the claims file. 2. After the development of #1 above is complete, schedule the Veteran for a VA examination by an appropriately qualified clinician to determine the nature and etiology of the Veteran's claimed bilateral ear condition, to include claims of earaches, hearing loss, and tinnitus. The evidentiary record, including a copy of this remand, must be made available to and reviewed by the examiner. A complete history should be elicited directly from the Veteran and the opinion should include a notation that this record review took place. After a thorough review of the record to include all in-service and post-service treatment records, the examiner should answer the following for each identified condition: Is it at least as likely as not (a 50 percent probability or more) that the Veteran's current ear condition was incurred in or is otherwise related to his time in service, to include the Veteran's lay assertion that he suffered right earaches in service? The examiner is directed to consider the Veteran's testimony in the March 2019 Board hearing transcript on pages 14-16, noting he had a right earache in service, noticed hearing loss, and continued earaches and hearing loss through the present day. In rendering this opinion, the examiner is advised that the Veteran is competent to report his symptoms and history. Such reports must be acknowledged and considered in formulating any opinion. If the examiner rejects the Veteran's reports, he or she must provide an explanation for such rejection. The examiner is not to improperly discount the Veteran's lay statements or mistakenly rely on an absence of medical evidence in the record to support his or her conclusions. The complete rationale for all opinions should be set forth, and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. 3. After the development of #1 above is complete, obtain an opinion from an appropriately qualified clinician to determine the nature and etiology of the Veteran's acquired psychiatric disorder, to include unspecified schizophrenia, psychotic disorder, and depressive disorder. The evidentiary record, including a copy of this remand, must be made available to and reviewed by the clinician. It is up to the discretion of the reviewing clinician as to whether a new examination is necessary to provide an adequate opinion. After a thorough review of the record to include all in-service and post-service treatment records, the reviewing clinician should answer the following for each identified acquired psychiatric disability: Is it at least as likely as not (a 50 percent probability or more) the acquired psychiatric disorder was incurred in or is otherwise related to his time in service, to include the stress and anxiety during basic training and surrounding his discharge? The reviewing clinician is directed to discuss the following: (a.) the Veteran's testimony in the March 2019 Board hearing transcript on pages 18-19 that his psychiatric symptoms began in basic training "from fear and a lot of peer pressure" that created "a lot of stress and anxiety" in addition to the events surrounding his discharge "that just throwed [sic] me into a chaos, a panic mode;" (b.) August 2021 VA treatment records noting a diagnosis of depressive disorder; (c.) military personnel records noting the Veteran was sent home in August 1976 on leave status to await the results of his administrative discharge; and, (d.) military personnel records noting the Veteran was discharged for "failure to meet the required enlistment AFQT and GT score." In rendering this opinion, the reviewing clinician is advised that the Veteran is competent to report his symptoms and history. Such reports must be acknowledged and considered in formulating any opinion. If the reviewing clinician rejects the Veteran's reports, he or she must provide an explanation for such rejection. The reviewing clinician is not to improperly discount the Veteran's lay statements or mistakenly rely on an absence of medical evidence in the record to support his or her conclusions. The complete rationale for all opinions should be set forth, and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. 4. Thereafter, readjudicate the claims. If any benefit sought remains denied, provide the Veteran with a Supplemental Statement of the Case (SSOC) and return the case to the Board. DONNIE R. HACHEY Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Bona, 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.