Citation Nr: 21075151 Decision Date: 12/17/21 Archive Date: 12/17/21 DOCKET NO. 16-08 817 DATE: December 17, 2021 REMANDED Entitlement to service connection for hearing loss is remanded. Entitlement to service connection for tinnitus is remanded. Entitlement to service connection for an acquired psychiatric disorder is remanded. Entitlement to service connection of an acquired psychiatric disorder for Chapter 17 treatment purposes only under 38 U.S.C. § 1702 is remanded. Entitlement to nonservice-connected pension benefits is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Marine Corps from August 1987 to August 1991, with additional service in the Marine Corps Reserve. These matters come before the Board of Veterans' Appeals (Board) on appeal from a May 2015 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran presented testimony at a virtual hearing held before the undersigned Veterans Law Judge in July 2021. A copy of the hearing transcript is of record. 1. Entitlement to service connection for hearing loss is remanded. The Veteran was provided with a VA audiological examination in May 2015. At that time, audiometric testing did not demonstrate decreased hearing acuity of a level considered to be a disability under 38 C.F.R. § 3.385 for VA service connection purposes. At the July 2021 Board hearing, the Veteran testified that he experienced difficulty hearing, and his representative requested that the Veteran be provided with an updated examination to assess his current level of hearing loss. Given the age of the most recent examination, and the holding of the Court of Veterans Appeals (Court) in Palczewski v. Nicholson that contemporaneous examination is required in cases involving service connection for a hearing loss disability, the Board finds that remand is warranted for a new examination. See 21 Vet. App. 174, 180 (2007). 2. Entitlement to service connection for tinnitus is remanded. Because a decision on the remanded issue of entitlement to service connection for hearing loss could significantly impact a decision on the issue of entitlement to service connection for tinnitus, the issues are inextricably intertwined. A remand of the latter claim is therefore needed. Additionally, while the Veteran was provided with a VA audiological examination in May 2015, the examination report indicates that the Veteran did not report recurrent tinnitus at that time. At the Board hearing, the Veteran testified that he notices ringing in his ears, and it is something that has stuck around since service. The Veteran is competent to provide evidence as to his subjectively-experienced symptom of ringing in his ears and as to his experience around loud noise during service. The Veteran's military occupational specialty as a motor vehicle operator is also consistent with his described in-service exposure to hazardous noise levels. As an etiological opinion has not yet been provided regarding the Veteran's current tinnitus claim, one should be provided, on remand. 3. Entitlement to service connection for an acquired psychiatric disorder is remanded. The Veteran asserts that he suffers from depression and anxiety that arose during his period of active service in the Marine Corps, but testified that he did not report it because he thought it was weak to say he needed help. VA treatment records document that the Veteran has current psychiatric diagnoses, including mood disorder, NOS, major depressive disorder, PTSD, and cannabis use disorder in remission. The Veteran has not yet been provided with a VA examination pertaining to his claim for service connection for an acquired psychiatric disorder. In light of above, the Board finds that a remand is necessary to afford the Veteran a medical examination to determine the nature and etiology of his current psychiatric condition. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). 4. Entitlement to service connection of an acquired psychiatric disorder for Chapter 17 treatment purposes only under 38 U.S.C. § 1702 is remanded. Because a decision on the remanded issue of entitlement to service connection for an acquired psychiatric disorder could significantly impact a decision on the issue of entitlement to service connection of an acquired psychiatric disorder for Chapter 17 treatment purposes only under 38 U.S.C. § 1702, the issues are inextricably intertwined. A remand of the latter claim is therefore also warranted. Additionally, the Board notes that an April 2014 VA mental health outpatient initial evaluation note indicates that per a VIS info report, the Veteran served in the Marine Corps Reserves from August 1991 to September 1994, with an honorable character of service. As the presumptive period pertaining to development of a mental illness for service connection for treatment purposes under 38 U.S.C. § 1702 is the two years following separation from active military service, reserve service treatment and service personnel records could be pertinent to this claim. On remand, the AOJ should take action to obtain and associate these reserve records with the claims file. 5. Entitlement to nonservice-connected pension benefits is remanded. Because a decision on the remanded issues of entitlement to service connection for hearing loss, tinnitus, and an acquired psychiatric disorder could significantly impact a decision on the issue of entitlement to nonservice-connected pension benefits, the issues are inextricably intertwined. A remand of the latter claim is therefore needed. On his December 2014 Application for Pension, the Veteran asserted that his acquired mental disorder and hearing loss prevent him from working, indicated that he last worked as a substitute teacher in 2005, and at the time of his application, had zero income. The Veteran's VA treatment records indicate that he took part in VA's Compensated Work Therapy (CWT) program briefly in 2020 and then again for several months in 2021. A May 2021 Veterans Industries (VI) Vocational Note documents the Veteran's report to VI staff that he would be working at Home Depot. A November 2020 VA primary care consult note additionally documented that the Veteran reported working construction, but had a goal of switching to the IT field because it was less physically demanding. The Veteran's complete VA Veterans Industries (VI)/Veteran Readiness and Employment (VR&E) file has not yet been added to the claims file. These records are in VA's constructive possession and relate to the Veteran's employability. On remand, the Agency of AOJ must take all necessary steps to request these records and associate them with the electronic file. On remand, the Veteran should additionally be asked to provide updated information regarding his employment and income during the appeal period for nonservice-connected pension. The matters are REMANDED for the following action: 1. Obtain the Veteran's VA treatment records for the period from June 2021 to Present. 2. Request that the Veteran provide updated employment and income information, to include information pertaining to his periods with the Compensated Work Therapy program and Home Depot (as reported to VI staff in May 2021). Specifically, provide him with any VA Forms necessary to obtain updated income and employment information for the entire period on appeal. Such forms may include VA Form 21-0516, Improved Pension Eligibility Verification Report, VA Form 21-8416, Medical Expense Report, and VA Form 21-527, Income-Net Worth and Employment Statement. 3. Obtain and associate a copy of the Veteran's complete VA Veteran Readiness and Employment (VR&E)/Veterans Industries file with the electronic claims file. 4. Obtain the Veteran's complete service treatment and service personnel records from his period of Marine Corps reserve service (August 1991-September 1994). All requests and responses should be documented for the file. If unsuccessful, a Formal Finding of Unavailability should be prepared, and the Veteran notified. 5. After associating all documents responsive to the above directives with the claims file, schedule the Veteran for an examination with an appropriate medical professional to determine the nature and etiology of his claimed hearing loss and tinnitus disabilities. All appropriate tests should be conducted. The examiner must address the following: a. Is it at least as likely as not (50 percent or greater probability) that any current hearing loss is causally related to an in-service injury, event, or disease, to include excessive noise exposure? b. Is it at least as likely as not that any current tinnitus is causally related to an in-service injury, event, or disease, to include excessive noise exposure? The examiner is advised that the Veteran's reports of exposure to excessive noise from operating and working on five-ton trucks is consistent with his military occupational specialty as a motor transport operator. The examiner should provide a complete rationale (an explanation supported by facts of record and medical knowledge) for all opinions and conclusions stated. 6. After associating all records responsive to remand directive #1 through #4 with the claims file, schedule the Veteran for an examination with an appropriate medical professional to assess the nature and etiology of the Veteran's claimed acquired psychiatric disorder. The examiner must review the claims file. The examiner is asked to provide a diagnosis for any psychiatric disorder present at any time during the relevant appeal period (December 2014 to Present). For each such psychiatric disorder, the examiner should address the following: a. Is it at least as likely as not (50 percent or greater probability) that the psychiatric disorder developed within the two-year period following the Veteran's separation from active service (August 1991 to August 1993)? b. Did the psychiatric disorder clearly and unmistakably (i.e., it is undebatable) preexist the Veteran's service? If the examiner finds the current psychiatric disorder did clearly and unmistakably preexist service, was it clearly and unmistakably not permanently aggravated beyond its natural progression by service? If the examiner finds that the current psychiatric disorder either did not clearly and unmistakably preexist service or was not clearly and unmistakably not aggravated by service, the examiner must opine whether it at least as likely as not arose during or is otherwise related to service. The examiner's attention is directed to a December 2013 VA psychiatry E&M note and addendum, documenting the Veteran's reports of having anxiety and depression in childhood, which increased upon discharge from the Marine Corp and his divorce in 2000, as well as his testimony at the Board hearing that he was constantly depressed but did not seek treatment during service because at the time, he thought it was weak if he said he needed help. The examiner should provide a complete rationale (an explanation supported by facts of record and medical knowledge) for all opinions and conclusions stated. 6. After completing the above, and conducting any further development deemed necessary in light of the expanded record, readjudicate the claims on appeal. If any of the benefits sought are not granted to the Veteran's satisfaction, send the Veteran and his representative a supplemental statement of the case and allow them an opportunity to respond. If necessary, return the case to the Board for further appellate review. MICHAEL LANE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Solomon, 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.