Citation Nr: 21071734 Decision Date: 12/01/21 Archive Date: 12/01/21 DOCKET NO. 17-12 974 DATE: December 1, 2021 REMANDED Entitlement to service connection for an acquired psychiatric disorder, to include other specified trauma and stressor related disorder, is remanded. Entitlement to service connection for bilateral hearing loss is remanded. Entitlement to service connection for tinnitus is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty from October 1970 to January 1972. These matters come before the Board of Veterans' Appeals (Board) on appeal from March 2014 and December 2015 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO). In February 2021, the representative of the Veteran submitted a request for a hearing before a Veteran's Law Judge. However, in September 2021 correspondence to VA, the Veteran stated he did not wish for a hearing and wanted his claims reviewed by a Veterans Law Judge. In Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009), the United States Court of Appeals for Veterans Claims (Court) held that the scope of a mental health disability claim includes any mental disorder that may reasonably be encompassed by the claimant's description of the claim, reported symptoms, and other information of record. In consideration of Clemons and the diagnosis of record, the Board has re-characterized the Veteran's claim as a claim for service connection for an acquired psychiatric disorder, however diagnosed. Acquired Psychiatric Disorder The Board finds that remand is necessary for additional development. The Veteran contends that his PTSD is related to seeing dead Vietnamese and mortar fire while in service in Vietnam. See February 2017 VA Examination Report. In support, the Veteran and his representative pointed to a February 2013 diagnosis of PTSD rendered by a VA psychologist; however, such diagnosis was under the DSM-IV. Effective August 4, 2014, VA amended the portion of the Rating Schedule dealing with mental disorders and its adjudication regulations that define the term "psychosis" to remove outdated references to the DSM-IV and replace them with references to the updated Fifth Edition (DSM-5). See 79 Fed. Reg. 149, 45094. The provisions of the interim final rule apply to all applications for benefits that are received by VA or that were pending before the Agency of Original Jurisdiction on or after August 4, 2014. Id. VA adopted as final, without change, the interim final rule and clarified that the provisions of this interim final rule do not apply to claims that have been certified for appeal to the Board or are pending before the Board as of August 4, 2014. See 80 Fed. Reg. 53, 14308 (March 19, 2015). Here, the RO certified the Veteran's appeal to the Board after August 4, 2014; therefore, the PTSD claim is governed by DSM-5. Thus, while he meets some of the criterion for a DSM-5 diagnosis of PTSD, he does not meet them all, as found by VA examiners in February 2014 and February 2017, a medical doctor and psychologist, respectively. However, the medical evidence shows another diagnosis, other specified trauma and stressor related disorder, a disability that the Veteran was previously service connected for but later severed because of insufficient evidence to support the stressors upon which the diagnosis was based. The Veteran has submitted lay evidence that he saw dead Vietnamese and experienced attack by enemy mortars while in service in the Republic of Vietnam between April 1971 and January 1972. However, no attempt has been made to verify the Veteran's stressors. Therefore, the RO should attempt to verify the Veteran's stressor. Bilateral hearing loss and tinnitus The Veteran contends that he has had hearing problems and ringing in his ears since he was in the military and was exposed to noise without ear protection. See March 2014 Notice of Disagreement. In conjunction with his service connection claim, the Veteran was afforded a VA compensation examination in February 2017. The VA examiner, an audiologist, examined the Veteran and administered audiometric testing. The examiner diagnosed the Veteran with bilateral hearing loss for VA purposes and tinnitus. The examiner compared the Veteran's entrance and separation audiograms and determined that there was no significant shift between the two. Additionally, the examiner referenced a 2006 Institute of Medicine (IOM) study that determined that it was unlikely that permanent noise-induced hearing loss could develop much later in one's lifetime, long after the cessation of that noise exposure. In McCray v. Wilkie, 31 Vet. App. 243 (2019), the United States Court of Appeals for Veterans Claims (Court) found that the 2006 IOM study contained contradictory findings. The study found that "based on current knowledge of cochlear physiology there was no sufficient scientific basis for the existence of delayed-onset hearing loss." However, the IOM report also indicated that "[t]here is not sufficient evidence from longitudinal studies in laboratory animals or humans to determine whether permanent noise-induced hearing loss can develop much later in one's lifetime, long after the cessation of that noise exposure" and that "definitive studies to address this issue have not been performed." The Board, in deciding the claim, must explain whether those aspects of the medical text diminish the probative value of the medical opinion evidence or render the opinion inadequate, and if not, why not. Thus, if relying on the IOM report to support a conclusion, the examiner should state why such conclusion is applicable to the facts of this Veteran's case; this should be accomplished on remand. Moreover, the examiner did not address the Veteran's competent lay report that his hearing loss and tinnitus continued since service. See Dalton v. Nicholson, 21 Vet. App. 23 (2007). As such, an addendum medical opinion is required. Furthermore, the February 2017 VA examiner noted that the Veteran's tinnitus was a symptom of the diagnosed bilateral hearing loss. Therefore, the issues of entitlement to service connection for tinnitus is inextricably intertwined with the Board's decision herein and the issue being remanded, and adjudication of the issue must be deferred pending the proposed development. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (the adjudication of claims that are inextricably intertwined is based upon the recognition that claims related to each other should not be subject to piecemeal decision-making or appellate litigation). TDIU The Veteran contends that a TDIU is warranted. However, the Board finds that the issue of entitlement to a TDIU is inextricably intertwined with the issues being remanded and a decision regarding this issue must be deferred pending the proposed development. See Harris, supra. The matters are REMANDED for the following action: 1. Ensure that all outstanding VA treatment records and the Veteran's complete service personnel records are associated with the claims file. 2. Verify the Veteran's report that between April 1971 and January 1972, the unit he was attached to, Company D 36th Engineering Battalion, was subjected to mortar attack(s). 3. Thereafter, forward the Veteran's claim file, preferably to the psychologist who provided the February 2017 medical opinion, to obtain clarification with regard to the etiology of the Veteran's current mental health disorder. If the same examiner is unavailable, request an addendum opinion from an appropriately qualified VA clinician. The claims file and a copy of this remand must be made available to the examiner for review, and the examiner must specifically acknowledge receipt and review of these materials in any reports generated. After a review of the claims file, the examiner is asked to respond to the following: Note to examiner: The Veteran reported seeing dead bodies in Vietnam, and also stated that his unit was subjected to mortar attacks in Vietnam. Service connection for "other specified trauma and stressor disorder" was granted based on the February 2017 VA opinion, but then severed by the Regional Office in 2018 because combat service was not verified. (a) Please clarify whether it is at least as likely as not (50 percent or greater probability) that the current mental health disorder had its onset in service or otherwise related to it. If combat service has not since been verified, provide an opinion as to whether the current disorder is related to his non-combat service. (b) A complete rationale for the opinion must be provided. 4. Forward the Veteran's claim file to the audiologist who provided the February 2017 medical opinion, if available, for the purpose of clarifying the etiology of the Veteran's current bilateral hearing loss and tinnitus. If the same examiner is unavailable, request an addendum opinion from an appropriately qualified VA clinician. The claims file and a copy of this remand must be made available to the examiner for review, and the examiner must specifically acknowledge receipt and review of these materials in any reports generated. After a review of the claims file, the examiner is asked to respond to the following: (a) Provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the current bilateral hearing loss disability is a result of the conceded in-service noise exposure. (b) Provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the current tinnitus is a result of the conceded in-service loud noise exposure. *In doing so, specifically consider (i) the Veteran's lay reports in the March 2014 notice of disagreement that his hearing loss and tinnitus continued since service; and (ii) indicate whether this examiner is relying on the 2006 IOM study, as did the February 2017 examiner, and if so, state why the conclusions of that study apply to this Veteran, given its contradictory aspects noted by the Court in McCray v. Wilkie, 31 Vet. App. 243 (2019). A complete rationale for all opinions must be provided. (Continued on the next page) 5. Thereafter, readjudicate the remanded claims, to include entitlement to a TDIU. S. B. MAYS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Moldawer, 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.