Citation Nr: 21067366 Decision Date: 11/04/21 Archive Date: 11/04/21 DOCKET NO. 16-36 680 DATE: November 4, 2021 REMANDED Entitlement to an increased disability rating in excess of 30 percent for PTSD is remanded. Entitlement to service connection for bilateral hearing loss is remanded. Entitlement to a compensable disability rating for sinusitis is remanded. REASONS FOR REMAND The Veteran had active service from April 1983 to July 1988, from December 2001 to July 2003, from January 2004 to December 2004, with additional periods of active duty for training (ACDUTRA) in the Army National Guard. These issues were previously before the Board which issued a decision in March 2019 denying an increased disability rating for PTSD and sinusitis and denied entitlement to service connection for bilateral hearing loss. The Veteran appealed the decision to the Court of Appeals for Veterans Claims (Court) and in a March 2021 memorandum decision, the Court set aside the Board's determinations and remanded the issues for further development and readjudication. Part of the Veteran's appeal included a request for the RO to obtain medical treatment records generated as part of VA partnership programs like VA CHOICE. According to the CAVC documents, VA presented these documents to the Court, but as they had not previously formed part of the record, and the Court was remanding the case, the Court declined to adjudicate whether such records should have been obtained under Due Process standards. Nonetheless, in its remand herein, the Board is directing the RO to obtain such records and make them part of the Veteran's claims file. 1. Entitlement to an increased disability rating in excess of 30 percent for PTSD is remanded. The Veteran's argument to the Court included that because the Veteran had at some point during the appeal period reported suicidal ideation, that forms the basis of a 70 percent disability rating under the Diagnostic Code for mental illness based on a reading of Bankhead. Bankhead v. Shulkin, 29 Vet. App. 10, 22 (2017). The RO should schedule the Veteran for a new VA PTSD examination and associated medical opinion including a determination on the severity and circumstances of any suicidal ideation in the Veteran's medical history and whether such suicidal ideation impacted the social and occupational functioning with deficiencies in most areas. 2. Entitlement to service connection for bilateral hearing loss is remanded. In the 2021 decision, the Court found the Veteran's argument persuasive that because the judge during the Board hearing did not explain the requirements for a hearing loss diagnosis under VA standards in 38 C.F.R. § 3.385 and suggest to the Veteran that evidence meeting such standard would be needed to fulfill the claim for entitlement to service connection, that a remand was in order. Accordingly, the RO should send the Veteran a notice describing the requirements to substantiate a hearing loss disability under VA regulations. The RO should also schedule the Veteran for a new VA audiological examination to determine if any current hearing loss meets these requirements. 3. Entitlement to an increased disability rating for sinusitis is remanded. In the 2021 decision, the Court determined that because the Board did not previously discuss the Veteran's headaches in the discussion of sinusitis, a remand is in order. The RO should obtain a new VA examination and the examiner should obtain information as to whether the Veteran has headaches and make a determination as to whether any headaches are related to sinusitis. The matters are REMANDED for the following action: 1. Determine, with the assistance of the Veteran if necessary, if there are outstanding medical treatment records generated by VA partnership medical providers, such as through the VA CHOICE program. Obtain and upload such records to the Veteran's claims file. The Board notes that the existence of such records is referenced in the March 2021 CAVC decision. 2. Send the Veteran a notice letter that explains the requirements for hearing loss disability for VA purposes under 38 C.F.R. § 3.385. 3. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected PTSD. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran's disability under the rating criteria. The examiner must attempt to elicit information regarding the severity, frequency, and duration of symptoms. To the extent possible, the examiner should identify any symptoms and social and occupational impairment due to the service-connected psychiatric disorder alone. (a.) The examiner must discuss the following: i. Please identify the current severity, frequency, and duration of any suicidal ideation ii. Please identify the severity, frequency, and duration of any suicidal ideation in the past iii. Does any of the Veteran's suicidal ideation alone cause occupational and social impairment with deficiencies in most areas? iv. What are the actual effects of the Veteran's suicidal ideation on his occupational and social situation? v. Review the prior VA PTSD examinations and determine if the Veteran's reports of poor family life and frequent arguments, for example, or any other lay statements support a determination that the Veteran's symptoms include others beyond those formally assigned on the report. For example (but not limited to), does the Veteran's description of his home life or other social relationships in the September 2014 VA PTSD examination support a symptom of "difficulty in establishing and maintaining effective work and social relationships" or another categorized symptom? 4. Schedule the Veteran for an audiological examination to evaluate hearing loss. The examiner must review the claims file. The examiner is asked to provide a response to the following: a. Direct service connection Is there diagnosed hearing loss that is at least as likely as not related to service, including hazardous noise exposure? Provide a rationale to support the opinion(s). In providing the requested opinion, consider the Veteran's description of his/her in-service injury and symptoms as well as his post-service symptoms. If there is any medical reason to accept or reject the proposition that the Veteran's reported injury and symptoms in service and thereafter represented the onset of his/her current disability, this should be noted. Stated another way, do the Veteran's reports about his symptoms align with how the currently diagnosed disability is known to develop or are the Veteran's reports generally inconsistent with medical knowledge or implausible? b. Secondary service connection (i) Is any diagnosed hearing loss at least as likely as not proximately due to a service-connected disability? (ii) Is any diagnosed hearing loss at least as likely as not aggravated, i.e., worsened beyond its natural progression, by a service-connected disability? c. Chronic diseases under §§ 3.303(b) and 3.309(a) Is it at least as likely as not that any diagnosed hearing loss (1) began during active service, (2) manifested within one year after discharge from service, or (3) was noted during service with continuity of the same symptomatology since service? 5. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected sinusitis. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran's disability under the rating criteria. The examiner must attempt to elicit information regarding the severity, frequency, and duration of symptoms. a. The examiner must respond to the following: i. Does the Veteran have a history of headaches that are related to sinusitis? Please reference relevant medical records in the answer. ii. Does the Veteran currently have headaches related to sinusitis? DAVID L. WIGHT Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. Miller, 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.