Citation Nr: 21007233 Decision Date: 02/09/21 Archive Date: 02/09/21 DOCKET NO. 10-14 326 DATE: February 9, 2021 REMANDED Entitlement to service connection a low back disability is remanded. Entitlement to service connection for bilateral hearing loss is remanded. Entitlement to service connection for a psychiatric disorder is remanded. REASONS FOR REMAND The Veteran served on active duty from January 1975 to August 1975 and from October 1977 to May 1978, with additional service in the Army Reserves. This matter is before the Board of Veterans’ Appeals (Board) on appeal of an April 2009 rating decision of a Regional Office (RO) of the Department of Veterans Affairs (VA). This matter was previously remanded by the Board in May 2014, August 2017, and August 2018. The case has been returned to the Board at this time for further appellate review. 1. Entitlement to service connection a low back disability is remanded. 2. Entitlement to service connection for bilateral hearing loss is remanded. 3. Entitlement to service connection for a psychiatric disorder is remanded. In August 2018, the Board remanded this matter, in part, to verify the Veteran’s periods of active and reserve service and to obtain any outstanding service treatment records, military personnel records, and records of reserve service that pertain the Veteran’s active and reserve service. In this regard, it appears as though the RO only requested service treatment records for the Veteran’s period of active duty from October 1977 to May 1978. Accordingly, remand is necessary to ensure compliance with the Board’s prior remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). In addition, in the August 2017 and August 2018 Board remand, the RO was directed to review the Veteran’s entire claims file, to include the social security administration (SSA) records, identify any misfiled documents, and then remove or redact any misfiled documents following the procedures for handling misfiled electronic documents under VBA Live Manual, M21-1, III.ii.4.G.2.c. As there are still SSA records pertaining to individuals that are not the Veteran combined in the same SSA documents submitted for the Veteran, remand is also warranted to ensure compliance with this remand directive. See, id. The Board also notes that the Veteran was afforded VA examinations in July 2020, before the RO requested and obtained some of the Veteran’s service treatment records. In addition, it is reasonable to presume that more service treatment records may be associated with the Veteran’s claims file. Because the July 2020 VA examinations were not based on a complete review of the claims file, remand for new VA examinations is also warranted. The matters are REMANDED for the following action: 1. Review the Veteran’s entire claims file, to include the SSA records, and identify any misfiled documents. Then remove or redact any misfiled documents following the proper procedures for handling misfiled electronic documents. 2. Obtain any outstanding service treatment records, military personnel records, and records of reserve service that pertain the Veteran’s active and reserve service, and associate those records with the claims file. Verify all periods of active and reserve service and update this information in the Veterans Benefits Management System (VBMS). 3. Obtain an opinion, preferably with a qualified clinician who has not previously examined the Veteran, regarding his claim for service connection for a low back disability. If the selected clinician determines that an examination is necessary to respond to this request, such examination should be scheduled. Following review of the claims file, and examination of the Veteran if deemed necessary, the examiner should opine whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s low back disability began in or is otherwise caused by the Veteran’s active service. The examiner must address the Veteran’s contention that he injured his back in service and that he has had continuous back pain since that time. The examiner may not disregard the Veteran’s contentions solely because they are not recorded in the Veteran’s service treatment records or other medical records. The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinion. If the examiner rejects the Veteran’s reports, he or she must provide a reason for doing so. All findings must be reported in detail and all opinions must be accompanied by a clear rationale. If any of the above issues cannot be resolved without resorting to speculation, then a detailed medical explanation as to why this is so must be provided. 4. Obtain an opinion, preferably with a qualified clinician who has not previously examined the Veteran, regarding his claim for service connection for bilateral hearing loss. If the selected clinician determines that an examination is necessary to respond to this request, such examination should be scheduled. After review of the claims file, and examination of the Veteran if deemed necessary, the examiner should opine whether it is at least as likely as not (50 percent or greater probability) that his current hearing loss disability began in or is otherwise related to his service. In doing so, the examiner must specifically acknowledge and discuss the Veteran’s in-service noise exposure. Simply observing that hearing loss was not noted at separation from service will be deemed an inadequate rationale for a negative etiology opinion. If the examiner attributes the current hearing loss disability to post-service noise exposure, or any other cause, rather than in-service noise exposure, he or she must provide a rationale for this finding. In particular, he or she must explain why the post-service factors would be more likely to cause the Veteran’s hearing loss than the in-service noise exposure. In addition, the examiner must address the significance or insignificance of any threshold shifts in the Veteran’s hearing acuity between the induction and separation examinations, as well as any other pertinent evidence of record. The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinion. If the examiner rejects the Veteran’s reports, he or she must provide a reason for doing so. All findings must be reported in detail and all opinions must be accompanied by a clear rationale. If any of the above issues cannot be resolved without resorting to speculation, then a detailed medical explanation as to why this is so must be provided. 5. Obtain an opinion, preferably with a qualified clinician who has not previously examined the Veteran, regarding his claim for service connection for a psychiatric disorder. If the selected clinician determines that an examination is necessary to respond to this request, such examination should be scheduled. After review of the claims file, and examination of the Veteran if deemed necessary, the examiner should identify all psychiatric disorders present during the course of the appeal. If the examiner finds that any disorder noted in the record is in remission or is not an accurate diagnosis for the Veteran at any point during the appeal, the examiner should explain in detail why this is so. In addition, if PTSD is diagnosed at any point during the appeal, the examiner must identify the stressor or stressors upon which the diagnosis of PTSD is made. For each psychiatric disorder identified during the course of the appeal, including any diagnosis found to be in remission, the examiner should opine whether it is at least as likely as not (50 percent or greater probability) that the psychiatric disorder began in or is otherwise caused by the Veteran’s active service. If a psychosis is diagnosed, the examiner must opine whether it at least as likely as not (a 50 percent or greater probability) that it (1) manifested within one year after discharge from service, or (2) was noted during service with continuity of the same symptomatology since service. In providing their opinion, the examiner must address the Veteran’s report of visual and auditory hallucinations in service, the January 2017 evaluation performed by Dr. Q.A-S., PhD., the March 2010 statement from the Veteran’s sister, and the March 2010 buddy statement. The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinion. If the examiner rejects the Veteran’s reports, he or she must provide a reason for doing so. All findings must be reported in detail and all opinions must be accompanied by a clear rationale. If any of the above issues cannot be resolved without resorting to speculation, then a detailed medical explanation as to why this is so must be provided. M. HYLAND Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Elias, 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.