Citation Nr: 21077180 Decision Date: 12/28/21 Archive Date: 12/28/21 DOCKET NO. 16-57 605 DATE: December 28, 2021 REMANDED Entitlement to service connection of residuals of a traumatic brain injury (TBI) is remanded. Entitlement to service connection of a seizure disorder, claimed as a residual of TBI, is remanded. Entitlement to service connection of bilateral hearing loss is remanded. REASONS FOR REMAND The Veteran served on active duty from January 2003 to March 2007. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2014 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). Although the Veteran initially requested a hearing before a Veterans Law Judge, he requested that his hearing be rescheduled on several occasions. The Veteran's hearing was officially scheduled for November 1, 2021. He and his agent were notified of that hearing date via letter, which was not returned as undeliverable. The RO also notified the Veteran via message over the phone of the date, time and location of his rescheduled hearing. The Veteran did not appear for that hearing as scheduled, and has not provided good reason for missing the hearing. As such, the Board finds his hearing request to be withdrawn. Inasmuch as the Board regrets further delay in the final adjudication of this case, a remand is necessary to ensure complete development of the issues on appeal. 1. Entitlement to service connection of residuals of a TBI is remanded 2. Entitlement to service connection of a seizure disorder, claimed as a residual of TBI, is remanded The Veteran seeks service connection of residuals of a TBI, which include a claim for a seizure disorder. This appeal has a complicated development history. The Veteran asserts that he sustained multiple head injuries during active service. Although no specific notations or documentation of a head injury can be found in his service treatment records, there is documentation of a car accident in 2003. The Veteran also has been awarded the Combat Action Ribbon, confirming combat experience. Thus, his assertion that he was exposed to a blast from an improvised explosive device (IED) is also accepted as proof of an in-service injury. 38 U.S.C. § 1154(b). The Veteran is presently service connected for PTSD, which includes dissociative symptoms and panic attacks, to include major neurocognitive disorder due to multiple etiologies without behavioral disturbances. Prior to 2018, the Veteran's PTSD was described as "to include cognitive complaints and psychogenic seizures." The Veteran filed his TBI claim in 2013. In September 2013 he was provided a TBI and seizure disorder examination, which found evidence of tonic clonic seizures, which were not likely related to any in-service incident. However, a psychiatric examination conducted the same day found his seizures unrelated to PTSD, and more likely due to a TBI. Two days later, an additional TBI examination was conducted which concluded that the Veteran's seizures were psychogenic in nature, and not likely related to any TBI. Also of record are private treatment records from 2012 and 2013 which imply that the Veteran's seizures could be attributed to either his TBI or his PTSD. Since the time of the 2013 examinations, the Veteran has been afforded several psychiatric evaluations, as well as having been treated for his various complaints to include epilepsy. Since that time, a 2016 VA examination determined that it was difficult to separate the seizures and other complaints such as headaches from PTSD, but that they were more likely due to a TBI. Likewise, a 2018 psychiatric examination concluded that the Veteran's seizures were improperly combined with PTSD. Rather they were a secondary condition which is separate from PTSD. As a result of that examination report, the RO changed the Veteran's psychiatric diagnosis to exclude seizures. That examination report also listed symptoms such as headaches, tinnitus, and dizziness as unrelated to PTSD and more likely due to a TBI. Based on this long history of contradictory evidence, the Board would request that a new examination be conducted which fully assesses the Veteran's complaints, identifies any diagnosable residuals of a TBI, and states whether or not they are either related to his in-service TBI injuries, or in the alternative are caused or aggravated by his service-connected PTSD. 3. Entitlement to service connection of bilateral hearing loss is remanded. The Veteran seeks service connection of bilateral hearing loss. This appeal dates to a July 2013 claim, and the Veteran was most recently afforded an examination in December 2013. At that time, although he did demonstrate negative threshold shifts in hearing, his hearing loss did not meet the statutory definition of that disability for VA compensation purposes, although it was very near to the required thresholds. 38 C.F.R. § 3.385. Notably, although hearing loss within the statutory definition of that disability was not found, nor did the examiner find evidence of a permanent positive threshold shift in hearing in either ear, the examiner did include a discussion that implied the threshold shifts seen in his hearing could be related to active service noise exposure, although not going so far as to make such a conclusion. Given this evidence, and because the Veteran's pure tone threshold shift and word recognition scoring were very near to the statutory threshold for a diagnosis of hearing loss, and because the Veteran's hearing loss has not been evaluated in eight years, the Board will remand this issue for a new VA auditory examination to determine whether the Veteran has a present diagnosis of hearing loss, and if so, whether it is at least as likely as not related to in-service noise exposure The matters are REMANDED for the following action: 1. Invite the Veteran to submit any additional evidence in support of his appeal. 2. Schedule the Veteran for a TBI examination, preferably with a neurologist, if available. The examiner is requested to conduct a thorough examination of the Veteran, to include any neuropsychological or physical testing deemed necessary. The examiner should also review the complete medical record, to include the private treatment records and any previous VA psychiatric, TBI or epilepsy examination reports and opinions. The examiner is then requested to state the following: Does the Veteran has a diagnosis of epilepsy or a seizure disorder which is separate and distinct from his service-connected PTSD? If not, the examiner should discuss why this condition is a manifestation of his PTSD. If so, the examiner is requested to state whether the seizure disorder is at least as likely as not related to his in-service TBIs. In the alternative, the examiner is also requested to state whether the condition, which is separate and distinct from PTSD, is (a) caused by or (b) aggravated by his PTSD. Does the Veteran have any other manifestations which are separate and distinct from PTSD, to include dizziness and/or headaches. If not, the examiner should discuss why the identified symptoms are a manifestation of his PTSD. If so, the examiner is requested to state whether the symptom is at least as likely as not related to his in-service TBIs. In the alternative, the examiner is also requested to state whether the symptom, which is separate and distinct from PTSD, is (a) caused by or (b) aggravated by his PTSD. A complete rationale should be provided for all opinions given. 3. Schedule the Veteran for a VA audiology examination in connection with his appeal. The examiner should conduct all necessary audiological tests, to include pure tone threshold testing and word recognition testing using the Maryland CNC testing protocols. The examiner should provide adequate testing results to conclude whether or not the Veteran's hearing loss meets the statutory definition of that disability per 38 C.F.R. § 3.385. If hearing loss within the statutory definition of that disability is found, the examiner should review the etiology and comment sections from the 2013 examination and state whether it is at least as likely as not that the Veteran's present hearing loss is related to any incident of active service, to include noise exposure or auditory trauma. B.T. KNOPE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Pryce, Counsel