Citation Nr: A21020224 Decision Date: 12/17/21 Archive Date: 12/17/21 DOCKET NO. 191022-38917 DATE: December 17, 2021 REMANDED Entitlement to service connection for hearing loss is remanded. Entitlement to service connection for an acquired psychiatric disorder, to include delusional disorder, is remanded. Entitlement to service connection for a back disability is remanded. Entitlement to service connection for diabetes is remanded. Entitlement to service connection for hypertension is remanded. Entitlement to service connection for a right hip disability is remanded. Entitlement to service connection for a left hip disability is remanded. Entitlement to service connection for right lower extremity heel spurs is remanded. Entitlement to service connection for left lower extremity heel spurs is remanded. REASONS FOR REMAND The Veteran served on active duty from October 1969 to August 1971. The Veteran also had a subsequent period of service with a Reserve Component. This appeal comes to the Board of Veterans' Appeal (Board) under the Appeals Modernization Act (AMA) review system. See 84 Fed. Reg. 138 (Jan. 18, 2019). Specifically, the appeal comes before the Board from an April 2019 AMA rating decision. In a subsequent October 2019 VA form 10182, Decision Review Request: Board Appeal (AMA Notice of Disagreement), the Veteran elected the Direct Review Lane. Therefore, the Board may only consider the evidence of record at the time of the agency of original jurisdiction (AOJ) decision on appeal. 38 C.F.R. § 20.301. In a June 2020 Board of Veterans' Appeal (Board) decision the undersigned, among other things, denied the above claims. The Veteran appealed the June 2020 Board decision to the United States Court of Appeals for Veterans Claims (Court). In a July 2021 order, which incorporated the parties Joint Motion for Partial Remand (JMPR), the Court vacated and remanded the January 2020 Board decision to the extent that it denied the above claims. Entitlement to service connection for hearing loss, an acquired psychiatric disorder, a back disability, diabetes, hypertension, right and left hip disabilities, as well as right and left lower extremity heel spurs are remanded. As to all the issues on appeal, the JMPR vacated and remanded the January 2020 Board decision because, in substance, it found that the RO's failure to obtain and associate with the record the following records before adjudicating the claims was a duty to assist error as defined by 38 C.F.R. § 20.802(a): The Veteran's post-August 1971 Reserve Component personnel and medical records; The records generated by the Social Security Administration's in connection with their grant of the Veteran's disability benefits; and The Veteran's November 2009 to January 2018 treatment records from the Columbia Veterans' Administration (VA) Medical Center. These records, which the Veteran's representative before the Court has not submitted, could impact a claim (it is unclear). Therefore, the Board finds that a Remand is required to attempt to obtain and associate these records with the claims file. See Forcier v. Nicholson,19 Vet. App. 414, 425 (2006) (holding that the duty to ensure compliance with the Court's order extends to the terms of the agreement struck by the parties that forms the basis of the joint motion to remand); cf. McBurney v. Shinseki, 23 Vet. App. 136, 140 (2009) (Board has a duty on remand to ensure compliance with the favorable terms stated in the joint motion for remand or explain why the terms will not be fulfilled). As to the claim of service connection for an acquired psychiatric disorder, and as noted by the JMPR, the Board finds that the RO's failure to provide the Veteran with a VA examination before adjudicating the claim was a pre-decisional duty to assist error as defined by 38 C.F.R. § 20.802(a) given the March 2019 PTSD screening evaluation which noted he had a positive PTSD screen. Therefore, the Board finds that a Remand is also required to provide the Veteran with a psychiatric VA examination to obtain diagnoses and etiology opinions as to his acquired psychiatric disorders, if any. See Forcier, supra; McBurney, supra. Similarly, as to the claim of service connection for bilateral hearing loss, and as noted by the JMPR, the Board finds that the RO's failure to obtain a clarifying opinion from the February 2019 VA examiner as to what he meant when he stated that the Veteran's "hearing thresholds could not be tested because they were 'inconsistent with organic hearing loss'" was a pre-decisional duty to assist error as defined by 38 C.F.R. § 20.802(a). Therefore, the Board finds that a Remand is also required to provide the Veteran with a new audio VA examination to obtain a clarifying opinion. See Forcier, supra; McBurney, supra. The appeal is REMANDED for the following actions: 1. To comply with the JMPR, associate with the claims file the Veteran's post-August 1971 Reserve Component personnel and medical records, if any. Because these are Federal records, efforts to obtain them should be ended only if it is concluded that the records sought do not exist or that further efforts to obtain them would be futile. If the records cannot be located or no such records exist, a Memorandum of Unavailability documenting all of VA's actions to obtain the records should be prepared and associated with the claims file and the Veteran should be notified in writing that the records cannot be found. 2. To comply with the JMPR, associate with the claims file all the Veteran's records generated by the Social Security Administration's in connection with their grant of his disability benefits. Because these are Federal records, efforts to obtain them should be ended only if it is concluded that the records sought do not exist or that further efforts to obtain them would be futile. If the records cannot be located or no such records exist, a Memorandum of Unavailability documenting all of VA's actions to obtain the records should be prepared and associated with the claims file and the Veteran should be notified in writing that the records cannot be found. 3. To comply with the JMPR, associate with the claims file the Veteran's November 2009 to January 2018 treatment records from the Columbia VA Medical Center. Because these are Federal records, efforts to obtain them should be ended only if it is concluded that the records sought do not exist or that further efforts to obtain them would be futile. If the records cannot be located or no such records exist, a Memorandum of Unavailability documenting all of VA's actions to obtain the records should be prepared and associated with the claims file and the Veteran should be notified in writing that the records cannot be found. 4. To comply with the JMPR, schedule the Veteran for a VA examination with a suitably-qualified medical professional to address his claim of service connection for an acquired psychiatric disorder. The claims file should be made available and reviewed by the examiner in conjunction with conducting the examination. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. After a consideration of the evidence of record (both lay and medical) and the results of the examination, the examiner is asked to address the following: a. Provide diagnosis for all acquired psychiatric disorders, if any. If the Veteran does not meet the criteria for a diagnosis of an acquired psychiatric disorder, the examiner must say so. b. As to each diagnosed disability, provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that it had its onset directly during the Veteran's service or is otherwise related to any event or injury during service. c. Provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that any psychosis manifested in the first post-service year. In providing answers to the above questions the examiner should specifically consider the Veteran's service treatment records. In providing answers to the above questions the examiner should specifically consider the competent lay claims from the Veteran regarding observable adverse symptomatology. To comply with the JMPR, in providing answers to the above questions the examiner should specifically consider the post-service medical records to include, among other things, the following: i. the March 2019 PTSD screening evaluation which noted he had a positive PTSD screen. In providing answers to the above questions the examiner is also advised that the term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of conclusion as it is to find against it. In providing answers to the above questions please articulate the reasoning underpinning your conclusions. That is, (1) identify what facts and information--whether found in the record or outside the record--support your opinion, and (2) explain how that evidence justifies your opinion. If the examiner cannot respond to an inquiry without resort to speculation as to any of the above claims he or she should so state, and must further explain why it is not feasible to provide a medical opinion, indicating whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or in the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). 5. To comply with the JMPR, schedule the Veteran for a VA examination with a suitably-qualified medical professional to address his claim of service connection for bilateral hearing loss. The claims file should be made available and reviewed by the examiner in conjunction with conducting the examination. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. After a consideration of the evidence of record (both lay and medical) and the results of the examination, the examiner is asked to address the following: a. Provide a diagnosis for each ear. If the Veteran does not meet the criteria for a diagnosis of hearing loss in either ear, the examiner must say so. b. Provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that any hearing loss had its onset directly during the Veteran's service or is otherwise related to any event or injury during service. c. Provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that any hearing loss manifested in the first post-service year. To comply with the JMPR, in providing the above diagnoses the examiner should specifically discuss the significance, if any, of the opinion from the February 2019 VA examiner that the Veteran's "... hearing thresholds could not be tested because they were 'inconsistent with organic hearing loss..."" In providing answers to the above questions the examiner should specifically consider the Veteran's service treatment records. In providing answers to the above questions the examiner should specifically consider the competent lay claims from the Veteran regarding observable adverse symptomatology. In providing answers to the above questions the examiner is also advised that the term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of conclusion as it is to find against it. In providing answers to the above questions please articulate the reasoning underpinning your conclusions. That is, (1) identify what facts and information--whether found in the record or outside the record--support your opinion, and (2) explain how that evidence justifies your opinion. If the examiner cannot respond to an inquiry without resort to speculation as to any of the above claims he or she should so state, and must further explain why it is not feasible to provide a medical opinion, indicating whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or in the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). John J. Crowley Veterans Law Judge Board of Veterans' Appeals Attorney for the Board N.T. Werner, 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.