Citation Nr: 21066806 Decision Date: 11/02/21 Archive Date: 11/02/21 DOCKET NO. 20-01 123 DATE: November 2, 2021 ORDER Entitlement to service connection for tinnitus is granted. Entitlement to a 70 percent evaluation, at least, for the Veteran's service-connected psychiatric disabilities (diagnosed as posttraumatic stress disorder (PTSD) prior to September 28, 2017, and insomnia with alcohol abuse, thereafter) from August 7, 2017, to December 6, 2017, is granted, subject to the applicable regulations concerning the payment of monetary benefits. Entitlement to an effective date of August 7, 2017, but no earlier, for the award of a total evaluation based on individual unemployability due to service-connected disabilities (TDIU) is granted. Entitlement to an effective date of August 7, 2017, but no earlier, for the grant of basic eligibility to Dependents' Educational Assistance (DEA) benefits is granted. REMANDED Entitlement to service connection for bilateral hearing loss is remanded. Entitlement to service connection for a right knee disability is remanded. Entitlement to service connection for a left knee disability is remanded. Entitlement to an evaluation in excess of 70 percent for the Veteran's service-connected psychiatric disabilities from August 7, 2017, to the present is remanded. FINDINGS OF FACT 1. Resolving all doubt in the Veteran's favor, the most probative evidence is approximately in relative equipoise concerning whether tinnitus was incurred during active duty. 2. Affording the Veteran the benefit of the doubt, the most probative evidence reflects that his service-connected psychiatric disabilities were manifested by severe symptomatology, resulting in at least occupational and social impairment with deficiencies in most areas, such as social relations, work, and mood from August 7, 2017, to December 6, 2017. 3. The most probative evidence reflects that the Veteran has been unable to secure or follow a substantially gainful occupation as a result of the symptoms related to his service-connected psychiatric disabilities from August 7, 2017, to December 6, 2017. 4. From August 7, 2017, to December 6, 2017, the Veteran had a permanent and total disability rating CONCLUSIONS OF LAW 1. The criteria to establish service connection for tinnitus are met. 38 U.S.C. §§ 1110, 1131, 5107 (2002); 38 C.F.R. §§ 3.102, 3.303. 2. From August 7, 2017, to December 6, 2017, the criteria for a 70 percent evaluation, at least, for the Veteran's service-connected psychiatric disabilities were met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.7, 4.130, Diagnostic Code 9411. 3. From August 7, 2017, to December 6, 2017, the criteria for entitlement to TDIU have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16 (a). 4. August 7, 2017, to December 6, 2017, the criteria for the grant of DEA benefits under Chapter 35 have been met. 38 U.S.C. §§ 3510, 5110, 5113; 38 C.F.R. §§ 3.807, 21.3021. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from December 1964 to December 1966, to include in the Republic of Vietnam. He is in receipt of a Combat Infantryman's Badge and had subsequent service of an unverified nature in the Army Reserve. This matter comes to the Board of Veterans' Appeals (Board) from October 2017 and March 2018 rating decisions by a Department of Veterans Affairs (VA) Regional Office (RO) of the Veterans Benefits Administration (VBA), which is the Agency of Original Jurisdiction (AOJ). The Board observes that the latter rating decision represents a readjudication of several issues initially adjudicated in the former due to the submission of new and material evidence submitted during the appeal period. 38 C.F.R. § 3.156(b); Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011). The Veteran expressed timely disagreement with these determinations, and the present appeal ensued. In December 2020, the Veteran presented oral testimony in support of his appeal at a videoconference Board hearing conducted by the undersigned Veterans Law Judge (VLJ). A transcript of the December 2020 Board hearing is associated with the Veteran's file. Characterization of issues on appeal After the Veteran initiated an appeal of the issues denied in the October 2017 and March 2018 rating decisions, the AOJ provided him with concurrently issued Statements of the Case (SOCs) in October 2019. In two submission received by VA days apart in December 2019, the Veteran's private attorney perfected appeals to the Board; however, these submissions spanned several pages, and it appears that the AOJ did not have the opportunity to review the totality of both submissions. The downstream effect of this administrative error is that the AOJ "closed out" the appeal regarding several of the Veteran's issues. The procedural ambiguity noted above was discussed by the Veteran's private attorney and the undersigned VLJ at the December 2020 hearing, and it was determined that all issues listed on the October 2019 SOCs were properly before the Board. Nonetheless, due to the AOJ's recharacterization of the Veteran's psychiatric disabilities, the assignment of a staged evaluation for this disability, and the indiscriminate completion of the check boxes of the Veteran's Notices of Disagreement (NODs), the October 2019 SOCs included two issues regarding the effective date assigned for the award of "service connection" for insomnia and alcohol abuse and the 70 percent evaluation for such, which is merely a recharacterization of the Veteran's service-connected psychiatric disability and a partial allowance of an increased evaluation, are duplicative. As such, these two issues have been merged and will be addressed below. 1. Entitlement to service connection for tinnitus. Service connection may be established for a disability resulting from personal injury suffered or disease contracted in the line of duty, in the active military, naval, or air service. 38 U.S.C. §§ 1110, 1131. Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Generally, to establish service connection for a disability resulting from a disease or injury incurred in service, there must be (1) competent evidence of the current existence of the disability for which service connection is being claimed; (2) competent evidence of incurrence of a disease or injury in active service; and (3) competent evidence of a nexus or connection between the current disability and the disease or injury incurred in service. Horn v. Shinseki, 25 Vet. App. 231, 236 (2010); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); cf. Gutierrez v. Principi, 19 Vet. App. 1, 5 (2004) (citing Hickson v. West, 12 Vet. App. 247, 253 (1999)). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant. 38 U.S.C. § 5107 (2002); 38 C.F.R. § 3.102 (2017); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518 (1996). Analysis The record before the Board unambiguously reflects that the Veteran's active duty included combat in the Republic of Vietnam, and thus, in-service exposure to excessive noise is conceded. Moreover, a September 2017 VA audiological examination report and the transcript of the December 2020 Board hearing reflects that Veteran both competently and credibly reported experiencing tinnitus during the appeal period. Charles v. Principi, 16 Vet. App. 370, 374 (2002) (finding that a veteran is considered competent to testify as to ringing in the ears (tinnitus). As such, the crux of the Veteran's appeal is whether the most probative evidence reflects that this disability was caused by his in-service noise exposure, as he asserts. To the critical point outlined above, the September 2017 VA examiner opined that the Veteran's tinnitus was less likely as not proximately due to or the result of any incident of his active duty because the Veteran "was unable to state a general timeframe as to when the tinnitus started to occur." While the Board acknowledges this opinion, the accompanying rationale is inadequate for the purpose of readjudicating the Veteran's appeal, as such contemplates the date of initial onset of this disability, but not the etiology of such. Accordingly, the Board affords the September 2017 VA opinion no probative weight regarding this matter. Notwithstanding the above, the Veteran testified at the December 2020 Board hearing that he began experiencing symptoms of tinnitus upon his in-service exposure to excessive noise while stationed in the Republic of Vietnam. To this point, the United States Court of Appeals for Veterans' Claims (Court) has held that tinnitus is a disability which may be competently and credibly identified by a layperson such as the Veteran. Charles v. Principi, 16 Vet. App. 370, 374 (2002) (finding the veteran competent to testify as to ringing in the ears (tinnitus); see also Layno v. Brown, 6 Vet. App. 465, 469-70 (1994) (noting that lay evidence is competent with regard to facts perceived through the use of the five senses). After a review of the evidence of record as a whole, and in light of the foregoing, the Board finds that the Veteran had excessive noise exposure in service and currently has tinnitus. Additionally, the Board finds persuasive the competent opinion of the Veteran relating his current tinnitus to his in-service noise exposure. Resolving reasonable doubt in the Veteran's favor, service connection for the Veteran's tinnitus is warranted. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 2. Entitlement to an evaluation in excess of 30 percent for the Veteran's service-connected psychiatric disabilities prior to December 7, 2017. Disability evaluations are determined by the application of a schedule of ratings, which is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. The percentage ratings in VA's Schedule for Rating Disabilities (Rating Schedule) represent as far as can practicably be determined the average impairment in earning capacity resulting from such disabilities and their residual conditions in civil occupations. 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 more closely approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107 (b); 38 C.F.R. §§ 3.102, 4.3. Where entitlement to compensation has already been established and increase in disability is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). However, "staged" ratings are appropriate where the factual findings show distinct time periods when the service-connected disability exhibits symptoms that would warrant different ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). Separate compensable evaluations may be assigned for separate periods of time if such distinct periods are shown by the competent evidence of record during the appeal, a practice known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119, 126 (1999). Once the evidence has been assembled, it is the Board's responsibility to evaluate the evidence. 38 U.S.C. § 7104 (a). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Under the General Rating Formula for Mental Disorders, at 38 C.F.R. § 4.130, Diagnostic Codes 9201 9440, a 30 percent rating is warranted when there is occupational and social impairment with an 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 evaluation 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; the Veteran's difficulty in establishing and maintaining effective work and social relationships. Id. A 70 percent disability evaluation is warranted when there is 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 work-like setting); inability to establish and maintain effective relationships. Id. The use of the phrase "such symptoms as," followed by a list of examples, provides guidance as to the severity of symptomatology contemplated for each rating. The use of such terminology permits consideration of items listed and other symptoms and contemplates the effect of those symptoms on the Veteran's social and work situation. Mauerhan v. Principi, 16 Vet. App. 436 (2002). The Board acknowledges that symptoms recited in the criteria in the rating schedule for evaluating mental disorders 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." Id, at 442. In adjudicating a claim for a higher rating, the adjudicator must consider all symptoms of a claimant's service-connected mental condition that affect the level of occupational or social impairment. Id, at 443. Analysis To ensure clarity of this matter, the Board concludes that a brief recitation of pertinent facts is necessary. The Veteran's initial claim to establish service connection for an acquired psychiatric disability (claimed as PTSD) was received by VA on August 18, 2014. The claim was granted by the AOJ in a December 2014 rating decision that established service connection for PTSD; a 30 percent initial evaluation was assigned, effective from August 18, 2013. Section 506 of Public Law (PL) 112-154 (Fully Developed Claim initiative). The Veteran did not express disagreement with either downstream element of this allowance or submit pertinent new and material evidence regarding such during the appeal period, and thus, the December 2014 rating decision became final. 38 U.S.C. § 7105 (c); 38 C.F.R. §§ 3.104, 3.156 (b), 20.302, 20.1103. The AOJ received a claim from the Veteran seeking an increased evaluation for this service-connected disability, among other benefits, on August 7, 2017. The AOJ adjudicated these claims in the October 2017 rating decision, which denied such and recharacterized the nature of the Veteran's service-connected psychiatric disability from PTSD to insomnia with alcohol abuse based on the findings of a September 2017 VA examiner. On December 7, 2017, the AOJ received from the Veteran a formal claim seeking a TDIU. In connection with this filing, the AOJ obtained evidence pertinent to some of the issues adjudicated in the October 2017 rating decision, to include the Veteran's claim seeking an increased evaluation for his service-connected psychiatric disabilities. As such, the AOJ readjudicated this claim, among others adjudicated in the October 2017 rating decision, in the March 2018 rating decision as per Bond and 38 C.F.R. § 3.156 (b); however, the effective date of the partial allowance of the Veteran's increased rating claim was set from December 7, 2017, which the AOJ determined to the "the date of the claim for an increased rating." The Veteran expressed disagreement with the effective dates assigned for the "date of service connection" for the recharacterization of his service-connected psychiatric disabilities, the partial allowance, and the denial of the assignment of an evaluation in excess of 70 percent from December 7, 2017, to the present. At the December 2020 hearing, the Veteran's private attorney clarified that the Veteran was seeking only an earlier effective date for the partial allowance for his service-connected psychiatric disabilities and an evaluation in excess of 70 throughout the pendency of the appeal. The first of these matters will be analyzed by the Board as an appeal seeking an evaluation in excess of 30 percent for this disability prior to December 7, 2017, and the second matter will be addressed in the remand portion. The Veteran is seeking an evaluation in excess of 30 percent for his service-connected psychiatric disabilities prior to December 7, 2017. As noted above, the present matter stems from the claim for an increased evaluation received by the AOJ on August 7, 2017. While the Board is cognizant of Gaston v. Shinseki, 605 F.3d 979, 984 (Fed. Cir. 2010), holding that the Board may consider the assignment of an increased evaluations during the "one-year look back period" prior to the filing of the Veteran's claim, such is only for application when the evidence shows that an increase in the service-connected disability occurred during that period. In the present case, there is no evidence showing that the functional impairment of earning capacity stemming from the Veteran's service-connected psychiatric disabilities increased from August 7, 2017, to December 6, 2017. As such, the crux of the Veteran's appeal is whether the most probative evidence reflects that the functional impairment of earning capacity stemming from the Veteran's service-connected psychiatric disabilities most closely approximates the criteria for an evaluation in excess of 30 percent from August 7, 2017, to December 6, 2017, as he asserts. After careful consideration, for the reasons expressed below, the Board concludes that the most probative evidence bolsters the Veteran's assertions in this regard, and thus, the assignment of a 70 percent evaluation, at least, for the Veteran's service-connected psychiatric disabilities is warranted from August 7, 2017, to December 6, 2017. The evidence outlining the functional impairment of earning capacity stemming from the frequency, severity, and duration of the symptoms attributable to the Veteran's service-connected psychiatric disabilities during the appeal period includes VA outpatient treatment records, a VA psychiatric examination report dated in September 2017, and the Veteran's lay statements. The evidence of record reflects that the Veteran experienced several personal stressors from 2006 to 2009, to include two total knee replacement surgeries, infidelity of a former spouse, and a client's non-payment for services rendered. It appears that these stressor events aggravated the symptoms associated with the Veteran's service-connected PTSD, resulting in anxiety, panic attacks, short-term memory loss, irritability, passive and homicidal ideation, chronic sleep impairment, flashbacks, feelings of hopelessness, survivor's guilt, and what he reports as a loss of "contact with reality," which amounts to difficulty with concentrating. The Veteran's VA treatment records reflect that he presented for a six-month "follow up visit" in November 2016 after missing several prior mental health appointments in 2016. At that time, he denied increased symptoms since his last VA psychiatric treatment. The Veteran next appeared for VA psychiatric treatment on August 9, 2017, two days after filing the claim from which the appeal stems. This record reflects the Veteran's first reports of increased psychiatric symptoms, and he specifically requested treatment for chronic alcoholism and insomnia, and he received prescription medication for these conditions. In connection with the Veteran's claim for an increased evaluation for his (then) service-connected PTSD, he was provided a VA examination in September 2017. This VA psychiatric examination report reflects the examiner's conclusion that the Veteran's PTSD symptoms, which were previously noted at a December 2014 examination, no longer met the criteria for a diagnosis of PTSD and had "possibly remitted." It was also opined that the Veteran's psychiatric symptoms were attributable to diagnoses of insomnia and alcohol abuse. The VA examiner detailed that the symptoms attributable to these disabilities resulted in depressed mood, chronic sleep impairment, and difficulty establishing and maintaining effective work and social relationships, the latter of which was demonstrated by the Veteran's prior failed marriages, social withdrawal, and strained relationships with his brothers and girlfriend. The Veteran reported being a "retired" electrician; however, he would do "odd jobs" as a handy man for a few friends and family. While he denied suicidal ideation, he endorsed feelings of purposelessness and uselessness, and he "wished" that there was a way to "just go away." These symptoms are consistently reflected throughout the Veteran's VA treatment during the appeal period, and the Veteran retrospectively reported such at the December 2020 Board hearing. To this point, the Court has firmly held that a lay person, such as the Veteran, is competent to be able to report matters which he experiences first-hand. See, e.g., Layno v. Brown, 6 Vet. App. 465, 469 (1994). Accordingly, the Board notes that the Veteran is competent to convey his psychiatric symptomatology and resulting functional impairment. Moreover, the Board notes the pervasive nature of the Veteran's psychiatric symptoms, as it appears that his chronic sleep impairment and self-medicating efforts with alcohol impacted all aspects of his life throughout the appeal period, resulting in severe impairment of his social and occupational functioning. The Board notes that the Veteran has not endorsed all or nearly all of the symptoms typically associated with a 70 percent evaluation. There was no evidence showing, for example, of spatial disorientation or forgetting his own name. Nevertheless, in assigning an evaluation, the Board is not required "to find the presence of all, most, or even some, of the enumerated symptoms." See Mauerhan, supra. On the other hand, the psychiatric symptoms and resulting functional impairment reported by the Veteran throughout the pendency of the appeal period are indicative of serious symptoms resulting in substantial impairment of social or occupational functioning. Specifically, in the case of Bankhead v. Shulkin, 29 Vet. App. 10 (2017), the Court held that the language of the general rating formula "indicates that the presence of suicidal ideation alone...may cause occupational and social impairment with deficiencies in most areas." To this point, while the Veteran may have denied any suicidal ideation, his accompanying statements regarding his consideration of such and feeling of futility in most aspects of life are congruent with the underlying concept of Bankhead. If the Board finds that the positive and negative evidence relating to a Veteran's claim are in "approximate balance," then the placement of the risk of nonpersuasion on the VA dictates a finding in favor of the claimant. Ortiz v. Principi, 274 F.3d 1361 (2001); see also, Gilbert v. Derwinski, 1 Vet. App. 49, 54-55 (1990). Here, there is positive evidence in support of the claim and negative evidence against it. Given this, the Board finds that the evidence is approximately in a state of equipoise. As such, affording the Veteran the benefit of the doubt, the Board concludes that the functional impairment resulting from the Veteran's psychiatric symptoms most nearly approximates the criteria for a 70 evaluation throughout the pendency of the appeal period (from August 7, 2017, to December 6, 2017). Further entitlement during the period is not being denied by the Board, and will be addressed in the appealed issue seeking an evaluation in excess of 70 percent for the Veteran's service-connected psychiatric disabilities, as will be detailed further in the remand section. 3. Entitlement to an effective date prior to December 7, 2017, for the award of a TDIU. Where the schedular rating is less than total, a total disability rating for compensation purposes may be assigned when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more, or if there are two or more disabilities, there shall be at least one ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16 (a). For the above purpose of one 60 percent disability, or one 40 percent disability in combination, the following will be considered as one disability: (1) disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, if applicable, (2) disabilities resulting from common etiology or a single accident, (3) disabilities affecting a single body system, e.g. orthopedic, digestive, respiratory, cardiovascular-renal, neuropsychiatric, (4) multiple injuries incurred in action, or (5) multiple disabilities incurred as a prisoner of war. Consideration may be given to a Veteran's level of education, special training, and previous work experience in arriving at whether a TDIU rating is warranted, but the Veteran's age or the impairment caused by non-service connected disabilities may not be considered in such a determination. 38 C.F.R. §§ 3.341, 4.16, 4.19. Analysis As an initial matter, the Board notes that the Veteran filed his initial claim to establish TDIU in on December 7, 2017, during the pendency of his appeal seeking an increased evaluation for his service-connected psychiatric disability. As such, the TDIU issue is considered to be part and parcel of each of the Veteran's increased rating claims on appeal, and thus, the appeal period for the latter attaches to the former. Rice v. Shinseki, 22 Vet. App. 447, 452 (2009). Despite the above, while the AOJ granted the Veteran's TDIU claim in the March 2018 rating decision from the date that VA received his formal claim seeking such (December 7, 2017), there is nothing in the narrative section of this decision indicating that earlier entitlement for this award and/or the holding in Rice had been considered. The Court has made clear that such consideration is necessary, see Harper v. Wilkie, 30 Vet. App. 356, 359 (2018), and the Veteran's due process rights include "two bites of the apple," with the AOJ's consideration representing the first. Nonetheless, as will be explained below, the Board's consideration of this matter in the first instance is not prejudicial to the Veteran in light of the fully favorable disposition. Bernard v. Brown, 4 Vet. App. 384, 394 (1993). As with the Veteran's appealed issue seeking an increased evaluation for his service-connected psychiatric disabilities, the appeal period for consideration in this matter is from August 7, 2017, to December 6, 2017. Rice, supra. The record reflects that the Veteran has been unemployed and, by virtue of the Board's partial allowance, meets the criteria for schedular TDIU consideration under 38 C.F.R. § 4.16 (a) throughout the totality of the appeal period. In view of above, the Veteran's appeal turns on whether his service-connected disability, at any point during that period, rendered him unable to secure or follow any substantially gainful employment. Unfortunately, there is no evidence dated during the appeal period for consideration, medical or otherwise, addressing this point. Critically, the September 2017 VA examiner did not comment on this matter. However, the Board observes that the AOJ's March 2018 allowance of a TDIU from December 7, 2017, to the present was fully based on a retrospective application of a January 2018 VA examiner's conclusion that the Veteran's psychiatric symptoms "probably would interfere from him getting back into the workforce." The Board observes the retrospective nature of the January 2018 opinion, which was based on the Veteran's competent and credible reports of difficulty adapting to stressful situations like a worklike environment and inability to maintain or establish effective work relationships during and since his most recent employment. Further, there is nothing in the Veteran's file contrary to such a finding. In view of above, the Board concludes that the most probative evidence is approximately in equipoise concerning whether the Veteran's service-connected psychiatric disabilities rendered him unable to participate in a substantially gainful occupation from August 7, 2017, to September 6, 2017. This represents a full grant of the benefits sought regarding this issue. 4. Entitlement to an effective date prior to December 7, 2017, for the grant of basic eligibility to DEA benefits. The effective date assigned for eligibility for DEA benefits (December 7, 2017) was based on the Veteran's award of TDIU from that date to the present. As discussed above, the Board has concluded that the criteria for TDIU have been met for the entirety of the appeal period for consideration, which is August 7, 2017, to December 6, 2017. As such, the criteria for eligibility for DEA benefits have also been met as of August 7, 2017. Nothing in the evidence shows that the Veteran had a permanent and total disability prior to that point. None of the other criteria for DEA under 38 C.F.R. § 3.807, such as death or capture by the enemy, have been met at any time prior to that date. REASONS FOR REMAND 1. Entitlement to service connection for bilateral hearing loss is remanded. Initially, the Board observes that the Veteran has participated in VA Vocational Rehabilitation program. While the record for review includes a January 2018 computer screenshot noting the existence and location of the Veteran's Vocational Rehabilitation folder, such has not been scanned into the Veteran's electronic file, and thus, it is not available for review. As these records are considered to be in VA's constructive possession, they must be associated with the Veteran's file in a way for review by the AOJ and the Board. This deficiency impacts all of the Veteran's appealed issues, and additional reasons for remanding each will be outlined. As noted above, the Veteran's file confirms his in-service exposure to excessive noise, and he demonstrated a bilateral hearing loss disability for VA purposes at a September 2017 VA audiological examination. The September 2017 VA examiner opined that this disability was less likely as not due to the Veteran's in-service noise exposure based on a lack of evidence showing "threshold shifts" between his entrance and separation audiograms. While the Board acknowledges this opinion, the rationale is inadequate for the purpose of readjudicating the Veteran's appeal, as the governing laws do not preclude service connection in the absence of "threshold shifts," as the Court has specifically held that delayed-onset bilateral hearing loss must be considered. Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992); Hensley v. Brown, 5 Vet. App. 155, 159 (1993). In view of above, a remand is necessary to ensure that VA fulfils its duty to assist the Veteran by obtaining a medical nexus opinion that is adequate under the applicable laws. 2. Entitlement to service connection for a right knee disability is remanded. 3. Entitlement to service connection for a left knee disability is remanded. The Veteran contends that he has disabilities of his knees that are the result of wear and tear incurred during active duty. His service department records confirm that the Veteran completed as many as 20 parachute jumps during active duty, to include at least five in the Republic of Vietnam. Further, the Veteran's VA treatment records are replete with his competent and credible reports of bilateral knee pain. A May 2020 VA treatment record reflects that magnetic resonance imaging (MRI) testing completed in August 2019 showed degenerative changes of the right knee, and an MRI of the Veteran's left knee was being scheduled due to his reports of chronic pain in the joint. Despite this evidence, the Veteran has not been provided a VA knee examination to determine the nature, date of initial onset, and etiology of his claimed disabilities. The Board notes that the evidence recounted above is sufficient to trigger's VA's duty to assist the Veteran by providing him such and examination and obtain medical opinions regarding these critical matters. Further, updated VA treatment records must be obtained and associated with the file so that the examiner has the benefit of review of the Veteran's complete disability picture. 4. Entitlement to an evaluation in excess of 70 percent for the Veteran's service-connected psychiatric disabilities from August 7, 2017, to the present is remanded. As explained in detail above, the remaining question regarding this appealed issue is whether an evaluation in excess of 70 percent is warranted at any point from August 7, 2017, to the present. The Veteran was most recently provided a VA psychiatric examination in January 2018, and as discussed above, the Board acknowledges that such reflects a significant increased in psychiatric symptoms and resulting functional impairment when compared to the VA examination conducted only four months earlier (in September 2017). In an effort to determine the current severity of the Veteran's service-connected disability and reconcile this seemingly contrasting historical evidence, the Board concludes that VA's duty to assist provides that remand is necessary to afford the Veteran another VA psychiatric examination. The matters are REMANDED for the following actions: 1. The AOJ must obtain and associate with the file all updated records of VA and private treatment, with the Veteran's assistance regarding the latter. *The Board is particularly interested in the results of the MRI test of the left knee that was scheduled in May 2020. 2. Thereafter, the AOJ must obtain ensure that the Veteran's complete Vocational Rehabilitation file is scanned into VA's electronic system and associated with the Veteran's file for review by the AOJ and the Board. *In completing the above, the AOJ is encouraged to seek this evidence in the location reflected in the January 2018 computer screenshot. 3. Thereafter, the AOJ must provide the Veteran a VA audiology examination conducted by a VA audiologist. After a review of the complete file and interview with and examination of the Veteran, the examiner should undertake appropriate audiometric testing of the Veteran's bilateral hearing acuity. The examiner must record decibel losses and speech recognition scores for each ear. Thereafter, the examiner must address provide an opinion concerning whether the Veteran's hearing loss (unilateral or bilateral) is at least as likely as not proximately due to or the result of his conceded in-service noise exposure. *The examiner should note that the absence of in-service evidence of a hearing disability during service is not always fatal to a service connection claim. Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Delayed-onset hearing loss must be considered. Evidence of a current hearing loss disability and a medically sound basis for attributing that disability to service may serve as a basis for a grant of service connection for hearing loss where there is credible evidence of acoustic trauma due to significant noise exposure in service, post-service audiometric findings meeting the regulatory requirements for hearing loss disability for VA purposes, and a medically sound basis upon which to attribute the post-service findings to the injury in service. Hensley v. Brown, 5 Vet. App. 155, 159 (1993). *If the examiner's rationale is based in part on the Veteran's in-service audiogram results, he/she must address whether ASA and/or ISO-ANSI were utilized in each instance. If the examiner cannot provide an opinion without resorting to mere speculation, this should be so stated along with supporting rationale. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to the particular question. 4. Thereafter, the AOJ must request that the Veteran be scheduled for an appropriate VA examination to determine the nature and etiology of his claimed bilateral knee disabilities. The complete electronic record must be made available to, and reviewed by, the VA examiner prior to conducting the examination. All necessary tests and studies should be conducted. Thereafter, the examiner must address the following: a. Identify any disability affecting either knee during the appeal period (since August 7, 2017). *If no right knee disability is confirmed, please reconcile this finding with the findings of the August 2019 MRI. *The examiner is asked to address whether the results of an MRI of the left knee were available for review. b. For any disability identified in part (a), provide an opinion concerning whether such is at least as likely as not proximately due to or the result of any incident of the Veteran's active duty, to include his verified parachute jumps. c. If no disability of either or both knees is identified during the appeal period (since August 7, 2017), the examiner is requested to describe the functional impairment resulting from the Veteran's knee pain. In doing so, the examiner is requested, to the extent possible, to describe any and all functional impairment stemming from the Veteran's left knee pain on his ability to stand, walk, run, maintain balance. d. For any functional impairment regarding either knee where no disability is identified, provide an opinion concerning whether such is at least as likely as not proximately due to or the result of any incident of the Veteran's active duty, to include his verified parachute jumps. If the examiner cannot provide an opinion without resorting to mere speculation, this should be so stated along with supporting rationale. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to the particular question. 5. Thereafter, the AOJ must request that the Veteran be scheduled for an appropriate VA examination in order to evaluate his service-connected psychiatric disabilities. The complete electronic record must be made available to, and reviewed by, the VA examiner prior to conducting the examination. All necessary studies and tests should be conducted. The examiner must describe the frequency, severity, and duration of the manifestations of the Veteran's service-connected psychiatric disabilities, to include the resulting functional impairment. The examiner is requested to focus on the impact of the Veteran's service-connected disabilities on his social and occupational functioning from August 7, 2017, to the present. *The examiner is requested to address the sharp decline in the Veteran's functioning reflected between the September 2017 and January 2018 VA examinations, to include a discussion of whether the Veteran's psychiatric symptoms have met the criteria for a diagnosis of PTSD throughout the appeal period. To this point, while the September 2017 and January 2018 VA examiner opined that PTSD was no longer a diagnosed disability, references in the VA examination reports make allusions to "PTSD symptoms" as opposed to symptomatology attributable to his service-connected insomnia and alcohol abuse. If the examiner cannot provide an opinion without resorting to mere speculation, this should be so stated along with supporting rationale. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to the particular question. 6. Thereafter, the AOJ must readjudicate the Veteran's appealed issues in light of the totality of evidence of record. If any benefit sought is not granted to the fullest extent, the AOJ must provide the Veteran and his representative with a copy of the readjudication and afford them an appropriate period to respond. Michael J. Skaltsounis Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Scott W. Dale, 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.