Citation Nr: 21066820 Decision Date: 11/02/21 Archive Date: 11/02/21 DOCKET NO. 16-57 705 DATE: November 2, 2021 REMANDED Entitlement to service connection for an acquired psychiatric disorder, to include recurrent major depressive disorder without psychotic features and generalized anxiety disorder, to include as due to service-connected bilateral sensorineural hearing loss and bilateral tinnitus is remanded. REASONS FOR REMAND The Veteran served on active duty from September 1969 to September 1971 and from January 1991 to May 1991. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision issued by a Department of Veterans Affairs (VA) Regional Office. In September 2019, the undersigned Veterans Law Judge held a hearing and a transcript is in the record. This issue was previously before the Board in January 2020, September 2020, and June 2021 when it was remanded for further development, which has not been completed. Stegall v. West, 11 Vet. App. 268, 271. The issue of entitlement to service connection for depressive disorder and anxiety disorder has been recharacterized as entitlement to service connection for an acquired psychiatric disorder, to include recurrent major depressive disorder and anxiety disorder, in accordance with Clemons v. Shinseki, 23 Vet. App. 1. 1. Entitlement to service connection for an acquired psychiatric disorder, to include recurrent major depressive disorder without psychotic features and generalized anxiety disorder, to include as due to service-connected bilateral sensorineural hearing loss and bilateral tinnitus is remanded. The Veteran contends he is entitled to secondary service connection for an acquired psychiatric disorder because it was caused or aggravated by his service connected bilateral hearing loss and tinnitus. The Board notes that this claim was remanded in June 2021 for additional development. Specifically, the Board requested "an addendum opinion regarding whether the Veteran's acquired psychiatric disorder, to include recurrent major depressive disorder without psychotic features and generalized anxiety disorder, is at least as likely as not aggravated beyond its natural progression by service connected hearing loss and/or tinnitus." See June 2021 Board Decision. In June 2021 a VA opinion for the Veteran's psychiatric disorder was completed. See June 2021 VA Opinion. The examiner opined that the Veteran's depressive disorder and anxiety disorder were not aggravated beyond their natural progression. However, the examiner did not render an opinion as to whether the Veteran's acquired psychiatric disorders were at least as likely as not aggravated beyond its natural progression by hearing loss and/or tinnitus. Instead, the examiner rendered a negative aggravation opinion regarding the Veteran's alcohol use disorder. The examiner noted that the Veteran's psychiatric symptoms in the past were severe to the point of warranting inpatient treatment, which the Veteran presently does not require. As such, he determined that there is no evidence that the quality or interference in daily life from the Veteran's alcohol use disorder is greater than his baseline, particularly given the Veteran's reported history of drinking. The Board regrets the additional delay; however, a remand is necessary to ensure the Veteran receives an adequate examination. A remand by the Board imposes upon the Secretary of VA a concomitant duty to ensure compliance with the terms of the remand. Where remand orders of the Board are not complied with, the Board errs in failing to ensure compliance. Stegall v. West, 11 Vet. App. 268. The VA also has a duty to assist veterans in developing their claims for benefits. 38 C.F.R. § 3.159. The duty to assist includes providing a medical examination when necessary to decide a claim. 38 C.F.R. § 3.159(c)(4). Once VA undertakes the effort to provide an examination, it must provide an adequate one. Barr v. Nicholson, 21 Vet. App. 303, 311. The examiner failed to render an opinion as to whether the Veteran's recurrent major depressive disorder was aggravated beyond its natural progression by the Veteran's service connected bilateral hearing loss or tinnitus. Based on the examiner's failure to render an opinion as to bilateral hearing loss, there was not substantial compliance with the Board's remand instructions, so the Board must remand this matter for an addendum VA medical opinion to address this. The matter is REMANDED for the following action: 1. Obtain updated VA and/or pertinent private treatment records. If such records are unavailable, the Veteran's claim file must be clearly documented to that effect and the Veteran notified in accordance with 38 C.F.R. § 3.159(e). 2. Obtain an addendum medical opinion regarding whether the Veteran's acquired psychiatric disorder, to include recurrent major depressive disorder without psychotic features and generalized anxiety disorder, is at least as likely as not permanently aggravated beyond its natural progression by service connected hearing loss and/or tinnitus. If the examiner determines that an opinion cannot be provided without an examination, the Veteran should be scheduled for one (or a telehealth interview, if an in-person examination is not feasible). The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a certain conclusion is so evenly divided that it is as medically sound to find in favor of such a conclusion as it is to find against it. If the examiner finds that the Veteran's hearing loss and/or tinnitus permanently aggravates the acquired psychiatric disability, the examiner is asked to state: (1) Whether there is medical evidence created prior to the aggravation or at any time between the time of aggravation and the current level of disability that shows a baseline of symptomology for the mental disability prior to aggravation; and (2) The amount, quantified if possible, of aggravation beyond the baseline symptomatology by the aggravation. If the examiner is unable to establish a baseline for the psychiatric disability prior to the aggravation, he or she should state such and explain why a baseline cannot be determined. If the examiner cannot provide an opinion without resorting to mere speculation, then he or she should explain whether it is because he or she needs more information or has exhausted the limits of current medical knowledge. (Continued on the next page) G. A. WASIK Veterans Law Judge Board of Veterans' Appeals Attorney for the Board V. Schmidt 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.