Citation Nr: 21073077 Decision Date: 12/07/21 Archive Date: 12/07/21 DOCKET NO. 10-27 578A DATE: December 7, 2021 REMANDED Entitlement to service connection for an acquired psychiatric disorder, as secondary to the service-connected bilateral hearing loss, is remanded. REASONS FOR REMAND The Veteran served on active duty from December 1974 to January 1979. The Veteran's claim for service connection for an acquired psychiatric disability stems from his claim for an increased rating for his service-connected bilateral hearing loss which was on appeal from a March 2009 rating decision. The Veteran's claim for an increased rating for his service-connected bilateral hearing loss was eventually denied in an August 2016 Board decision. In that decision, the Board also determined that extraschedular referral was not warranted but did not discuss whether the Veteran's reported mental health symptoms associated with his hearing loss raised the question of entitlement to secondary service connection or whether such was warranted. The Veteran appealed the Board's August 2016 decision to the Court of Appeals for Veterans' Claims (CAVC/Court) and contended that he had raised a reasonable claim for service connection for a psychiatric disability (referred to as an anxiety disorder) on a secondary basis. See Appellant's Supplemental Brief. In April 2021, the Court issued an order affirming the denial of an initial compensable rating for the bilateral hearing loss and remanding the Veteran's reasonably raised claim for service connection for a mental disorder secondary to bilateral hearing loss to the Board for initial development and adjudication. In September 2011, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge (VLJ), and a transcript of that proceeding has been associated with the claims file. [While the Veteran did not provide explicit testimony regarding service connection for an acquired psychiatric disorder, the Veteran alluded to psychiatric symptoms while talking about his service-connected bilateral hearing loss. In particular, he testified that he cannot sleep and that he fears losing his job due to his hearing loss, indicating a level of anxiety related to the service-connected disability. In this regard, the Veteran's September 2011 testimony is relevant to his current appeal.] Service connection for an acquired psychiatric disorder, as secondary to the service-connected bilateral hearing loss The Court, in its April 2021 decision, found that the Board erred by failing to adjudicate a reasonably raised secondary service connection claim, namely that the Veteran has a mental disorder secondary to his service-connected bilateral hearing loss. The Court noted that the Board expressly acknowledged lay statements from the Veteran and others identifying job-related anxiety stemming from, or caused by, his service-connected hearing loss in addressing whether an extraschedular referral was warranted. As such, the Court found that the Board violated its holding in Morgan v. Wilkie, 31 Vet. App. 162, 168 (2019), by not addressing a reasonably raised schedular alternative for evaluating the Veteran's anxiety. In Morgan, the Court held that VA's duty to maximize benefits requires it to exhaust all expressly or reasonably raised schedular alternatives for evaluating a disability before considering whether extraschedular referral is warranted. The schedular alternatives include entitlement to secondary service connection for symptoms claimed to be related to the disability for which extraschedular referral is being sought. Id. at 167. As the Veteran's claim for an increased rating for his service-connected bilateral hearing loss was initiated before March 2015, he was not required to file a formal claim for secondary service connection to be granted that benefit. See 38 C.F.R. § 3.155(a) (as in effect prior to March 24, 2015); Bailey v. Wilkie, 33 Vet. App. 188, 198-99 (2021). Here, the Court found that the evidence developed and submitted during the course of the Veteran's increased disability claim was sufficient to reasonably raise the issue of entitlement to service connection for a mental disorder secondary to that primary bilateral hearing loss disability. This evidence suggests a link between the Veteran's bilateral hearing loss and persistent or recurrent symptoms of a mental disorder and was sufficient to raise reasonably the issue of entitlement to secondary service connection. See id. at 198. As such, the Board had jurisdiction over the matter, and the Court remanded the issue to the Board for development and adjudication in the first instance. As previously noted, there are indications that the Veteran has an acquired psychiatric disordernamely an anxiety conditionor symptoms thereof that may be related to his service-connected bilateral hearing loss. Multiple lay statements to this effect are of record, as his wife, coworker, and friends described his mood changes associated with his inability to hear as well as his anxiety about his ability to hear and the implications of such on his ability to perform job-related tasks. VA's duty to assist includes, when necessary, conducting a thorough and comprehensive medical examination. See 38 U.S.C. § 5103A(d)(2); McLendon v. Nicholson, 20 Vet. App. 79 (2006). To date, no VA examiner has addressed whether the Veteran has a current acquired psychiatric disorder related to his service-connected bilateral hearing loss despite the Veteran's contentions regarding such disability. The Veteran has not contended that he has an anxiety disorder or other acquired psychiatric disorder directly related to his military service; his argument has been confined to contending that any such disorder is proximately due to, or the result of, his service-connected bilateral hearing loss. The Board finds a remand is necessary to obtain a VA examination and nexus opinion on the nature, extent, and etiology of the Veteran's acquired psychiatric disorder. The most recent VA treatment records in the claims file were received in January 2018, and the Veteran submitted a portion of VA treatment records from September 2021. Such indicates that there are outstanding VA treatment records which may be relevant to his claim. Any outstanding VA and private treatment records should be obtained on remand. The matter is REMANDED for the following action: 1. Identify and obtain any outstanding VA and private treatment recordsto include VA treatment records from January 2018 to the presentand associate them with the claims file. The Veteran should be asked to provide any information or authorization necessary for VA assistance in obtaining private treatment records. All requests and responses for the records must be documented. If any identified records cannot be obtained, notify him of the missing records, the efforts taken, and any further efforts that will be made by VA to obtain such evidence, and allow him an opportunity to provide the missing records. 2. Then, schedule the Veteran for a VA examination to determine the nature and etiology of any current acquired psychiatric disorder that he may have. The entire claims file must be made available to the examiner for review in conjunction with the examination. Any indicated tests and studies must be accomplished, and all clinical findings must be reported in detail and correlated to a specific diagnosis. An explanation for all opinions expressed must be provided. The examiner is asked to: a. Identify/diagnose any acquired psychiatric disability that presently exists or that has existed during the appeal period. b. For each such diagnosed psychiatric disability, the examiner should opine as to whether it is at least as likely as not (i.e., a 50 percent or greater probability) that any diagnosed acquired psychiatric disability was caused, or aggravated beyond its natural progression (worsened), by the service-connected bilateral hearing loss. The Board emphasizes that causation and aggravation are two separate inquires, and both must be answered. The examiner is advised that the Veteran is competent to report his symptoms and history, and that such reports must be acknowledged and considered in formulating diagnoses and opinions. A clear explanation for all opinions would be helpful, and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. If the examiner is unable to provide an opinion, he or she should explain why. No action is required of the Veteran until he is notified by VA. However, he is advised of his obligation to cooperate in ensuring the duty to assist is satisfied. Kowalski v. Nicholson, 19 Vet. App. 171 (2005). His failure to report for a VA medical examination may impact the determination made. 38 C.F.R. § 3.655. The Veteran also is advised that he has the right to submit additional evidence and argument with respect to this matter. Kutscherousky v. West, 12 Vet. App. 369 (1999). This appeal must be afforded prompt treatment. THERESA M. CATINO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Goreham 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.