Citation Nr: 21007508 Decision Date: 02/09/21 Archive Date: 02/09/21 DOCKET NO. 16-47 144 DATE: February 9, 2021 ORDER Entitlement to an effective date of May 14, 2013, but no earlier, for a 30 percent rating for an anxiety disorder is granted. Entitlement to a rating of 70 percent, but no higher, for an anxiety disorder is granted, effective September 2, 2020. REMANDED Entitlement to a compensable rating for bilateral hearing loss is remanded. FINDINGS OF FACT 1. The Veteran submitted new and material evidence within one year of the promulgation of the initial rating decision for service connection for an anxiety disorder; therefore, the August 24, 2013 rating decision was never rendered final. 2. For the appeal period prior to September 2, 2020, the Veteran’s anxiety disorder manifested as occupational and social impairment with occasional decrease in work efficiency and intermittent periods of an inability to perform occupational tasks without occupational and social impairment with reduced reliability and productivity, social and occupational impairment with deficiencies in most areas or total social and occupational impairment. 3. Resolving all reasonable doubt in the Veteran’s favor, as of September 2, 2020, but no earlier, the Veteran’s anxiety disorder was manifested by occupational and social impairment with deficiencies in most areas without total social and occupational impairment. CONCLUSIONS OF LAW 1. The criteria for an effective date of May 14, 2013, but no earlier, for a 30 percent rating for an anxiety disorder have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.156(b). 2. The criteria for a rating in excess of 30 percent for an anxiety disorder for the appeal period prior to September 2, 2020 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1—4.14, 4.126, 4.130, Diagnostic Code 9413. 3. The criteria for a rating of 70 percent for anxiety disorder, but no higher, effective September 2, 2020, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1-4.14, 4.126, 4.130, Diagnostic Code 9413. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from June 1967 to June 1970, including verified combat service within the Republic of Vietnam. See Military Personnel Record (rec’d Nov. 18, 2013 ); VA Memo (rec’d May 13, 2014). This case is before the Board of Veterans' Appeals (Board) on appeal of a rating decisions dated in June 2014 and October 2014 by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veterans Law Judge on September 2, 2020, with his spouse also present and providing testimony. A transcript from the hearing has been associated with the claims file. The Veteran’s attorney requested that the record be held open for 60 days following the hearing to submitted additional evidence and argument; this extension of time was granted during the hearing and has now expired. This matter is advanced on the Board’s docket. 38 C.F.R. § 20.900(c); 38 U.S.C. § 7107(a)(2). REFERRED ISSUE The Veteran submitted a VA Form 21-8940, see VA Form 21-8940 (rec’d June 25, 2020 ), in which he filed a claim for a total disability due to individual unemployability (TDIU) based upon a seizure disorder. The Board however notes that the Veteran is not currently service connected for a seizure disorder—only for anxiety, bilateral hearing loss, and tinnitus. In December 28, 2020 statement, see Correspondence (rec’d Dec. 28, 2020 ), the Veteran’s attorney urged the Board to imply a claim for TDIU out of the claims for increased ratings as are currently on appeal. Although the Board can interpret a claim for TDIU as part and parcel of a claim for an increased rating under certain circumstances, see Rice v. Shinseki, 22 Vet. App. 447 (2009), Rice is not for application in this case because TDIU is attributed to a seizure disorder—not to anxiety or bilateral hearing loss of increased severity that is on appeal. The Agency of Original Jurisdiction (AOJ) has not yet issued a rating decision adjudicating the claim for a TDIU. This claim is referred to the AOJ for appropriate action. 1. Entitlement to an effective date of May 14, 2013, but no earlier, for a 30 percent rating for an anxiety disorder is granted. The VA received the Veteran’s initial claim for service connection for a psychiatric disorder on May 14, 2013. See VA Form 21-526EZ (rec’d May 14, 2013 ). The Veteran underwent a VA examination in August 2013, see VA Exam ( Aug. 20, 2013 ), and the claim for service connection was granted. See Rating Decision ( Aug. 24, 2013 ). On October 31, 2013, the Veteran submitted a Supplemental Claim as pertaining to the propriety of his initial 10 percent rating for anxiety. See VA Form 21-526b (rec’d Oct. 31, 2013 ). The Veteran was subsequently examined in June 2013. See VA Exam ( June 4, 2014 ). On this basis, the Veteran was granted a staged rating increase of 30 percent effective October 31, 2013, but with the initial 10 percent rating continued prior to October 31, 2013. See Rating Decision (June 27, 2014). The Veteran was then issued another rating decision in October 2014, see Rating Decision (Oct. 1, 2014), to which the Veteran filed a timely and valid Notice of Disagreement. See NOD (rec’d Jan. 20, 2015). Under 38 C.F.R. § 3.156(b), the Board construes the June 2014 examination that evinced entitlement to a 30 percent rating as new and material evidence within the initial rating decision. Meanwhile, the January 2015 notice of disagreement is within one year of the June 27, 2014 rating decision that awarded a 30 percent rating. As a result, the initial rating decision was never rendered final. To this extent only, the Board grants an effective date of May 14, 2013 for a 30 percent rating for service-connected anxiety disorder. 2. Entitlement to a rating in excess of 30 percent for an anxiety disorder prior to September 2, 2020 is denied. 3. Entitlement to an increased rating of 70 percent, but no higher, an anxiety disorder is granted, effective September 2, 2020, but no earlier. Disability evaluations are determined by the application of the facts presented to the VA’s Schedule for Rating Disabilities (Rating Schedule) at 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. While the Veteran’s entire history is reviewed when making a disability determination, where service connection has already been established and an increase in the disability rating is at issue, it is a present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). The Court has held that, in determining the present level of a disability for any increased evaluation claim, the Board must consider the application of staged ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). In other words, where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, the assignment of staged ratings would be necessary. Consideration is given to the potential application of the various provisions of 38 C.F.R. Parts 3 and 4, whether or not they are raised by the Veteran, as required by Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Reasonable doubt as to the degree of disability will be resolved in the Veteran’s favor. 38 C.F.R. § 4.3. In general, all disabilities, including those arising from a single disease entity, are rated separately, and all disability ratings are then combined in accordance with 38 C.F.R. § 4.25. Pyramiding, the evaluation of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when rating a Veteran’s service-connected disabilities. 38 C.F.R. § 4.14. Generally, separate disability ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not “duplicative of or overlapping with the symptomatology” of the other condition. Esteban v. Brown, 6 Vet. App. 259, 262 (1994). The Court has also held that within a particular diagnostic code, a claimant is not entitled to more than one disability rating for a single disability unless the regulation expressly provides otherwise. Cullen v. Shinseki, 24 Vet. App. 74 (2010). 38 C.F.R. § 4.130 delineates a schedule of ratings for all mental disorders other than eating disorders, based upon the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (DSM-5). As per the General Rating Formula for Mental Disorders (General Formula), a 30 percent rating is assigned for occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, mild memory loss (such as forgetting names, directions, recent events). 38 C.F.R. § 4.130, Diagnostic Code 9413. A 50 percent rating is assigned for occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; or difficulty in establishing and maintaining effective work and social relationships. Id. A 70 percent rating is assigned for occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a worklike setting); or inability to establish and maintain effective relationships. Id. A 100 percent rating is assigned for total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. Id. When determining the appropriate disability evaluation under the general rating formula, the primary consideration of the Board is a Veteran’s symptoms, but it must also make findings as to how those symptoms impact the Veteran’s occupational and social impairment. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 116-17 (Fed. Cir. 2013). A veteran may only qualify for a given disability rating under the general rating formula by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration. Id at 117-18. The symptoms listed are not exhaustive, but rather “serve as examples of the type and degree of symptoms, or their effects, that would justify a particular rating.” Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). In the context of determining whether a higher disability evaluation is warranted, the analysis requires considering “not only the presence of certain symptoms[,] but also that those symptoms have caused occupational and social impairment in most of the referenced areas.” Vazquez-Claudio, 713 F.3d at 117; 38 C.F.R. § 4.130. The Board acknowledges that psychiatric examinations frequently include assignment of a global assessment of functioning (GAF) score. The American Psychiatric Association has released the Diagnostic and Statistical Manual of Mental Disorders (5th Ed.) (DSM-5), and 38 C.F.R. § 4.130 has been revised to refer to the DSM-5. The DSM-5 does not contain information regarding GAF scores. Effective August 4, 2014, VA amended the portion of its Schedule for Rating Disabilities dealing with mental disorders to remove outdated references to the DSM-IV and replace them with references to the DSM-5. See 79 Fed. Reg. 45,093, 45,094 (Aug. 4, 2014). VA adopted as final, without change, the interim final rule and clarified that the provisions of the final rule did not apply to claims that were pending before the Board, this Court, or the United States Court of Appeals for the Federal Circuit on August 4, 2014, even if such claims were subsequently remanded to the agency of original jurisdiction. See 80 Fed. Reg. 14,308 (Mar. 19, 2015). In Golden v. Shulkin, 29 Vet. App. 221 (2018), the Court held that given that the DSM-5 abandoned the GAF scale and that VA has formally adopted the DSM-5, the Board errs when it uses GAF scores to assign a psychiatric rating in cases where the DSM-5 applies. This appeal was certified to the Board in September 2017. As such, the DSM-5 applies, and the GAF scores will not be considered. Generally, if a claim is received within one year after separation from service, the effective date shall be “day following separation from active service.” 38 C.F.R. § 3.400(b)(2). Otherwise, the effective date shall be date of claim or date entitlement arose, whichever is later. Id. The effective date for a reopened claim, after a final disallowance, shall be the date of receipt of the new claim or date entitlement arose, whichever is later. 38 C.F.R. § 3.400(q)(2), (r). Effective March 24, 2015, VA amended its regulations to require that all claims governed by VA’s adjudication regulations be filed on a standard form. See 79 Fed. Reg. 57660 (Sept. 25, 2014). The amendments also eliminate the constructive receipt of VA reports of hospitalization or examination and other medical records as informal claims to reopen under 38 C.F.R. § 3.157. See 79 Fed. Reg. 57,660 (Sept. 25, 2014) (now codified at 38 C.F.R. §§ 3.1 (p), 3.151, 3.155). The amendments apply only to claims filed on or after March 24, 2015. Because the Veteran’s claim to reopen the claim for service connection for depression was submitted prior to that date, the former regulations apply, as provided below. The term “claim” or “application” means a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit. 38 C.F.R. § 3.1(p). Under the former regulations, any communication or action indicating an intent to apply for one or more benefits under laws administered by VA from a claimant may be considered an informal claim. Such informal claim must identify the benefit sought. Upon receipt of an informal claim, if a formal claim has not been filed, an application form will be forwarded to the claimant for execution. 38 C.F.R. § 3.155(a). To determine when a claim was received, the Board must review all communications in the claims file that may be construed as an application or claim. See Quarles v. Derwinski, 3 Vet. App. 129, 134 (1992). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits. VA shall consider all information and lay and medical evidence of record in a case and when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Board acknowledges that the Veteran has continuously prosecuted his appeal for increased ratings for his anxiety disorder since May 14, 2013. Ultimately, while the Veteran has continuously indicated a belief that he is entitled to higher ratings, he has not articulated any particular argument as to why. Meanwhile, the testimony from the Veteran’s hearing indicates that the Veteran has rarely sought medical attention, and this is corroborated by the paucity of medical records available for Board review within his claims file. The Veteran has not raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board.”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). The Board resolves all reasonable doubt in the Veteran’s favor to afford a 70 percent rating effective September 2, 2020, but no higher and no earlier. In short, the Veteran accepts the hearing testimony, as well as a private psychiatric report that was received after the hearing, as evidence that his anxiety manifested in social and occupational impairment with deficiencies in most areas. There is simply no such evidence of record indicating entitlement to any rating in excess of 30 percent until the Veteran’s September 2020 hearing. For the appeal period prior to September 2, 2020, the Veteran’s anxiety disorder does not manifest in occupational and social impairment with reduced reliability and productivity or occupational and social impairment with deficiencies in most areas. The Veteran submitted to a VA psychiatric examination in June 2014. See VA Exam ( June 4, 2014 ). Specifically, the examiner concluded that his anxiety exhibited none of the following: panic attacks of any frequency (let alone at least weekly); flattened affect; circumstantial, circumlocutory, or stereotyped speech; impaired judgment; or impaired abstract thinking. See id. at Question No. 6. The Board acknowledges that the examiner endorsed the Veteran’s difficulty in establishing and maintaining effective social relationships, see id. at Questions Nos. 3a (“Veteran was last evaluated for MH purposes in August 2013. He reported having a few friends, and good relationships with his wife and family. Veteran indicated staying at home most of the time, and cannot handle crowds”) and 8 (“Socially withdrawn”). Although the Veteran reported being socially isolated, he also reported having a few friends and maintaining relationships with his wife, siblings and daughter. The evidence does not suggest, and the Veteran has not alleged, circumstantial, circumlocutory, or stereotyped speech, panic attacks more than once a week; difficulty in understanding complex commands, impairment of short and long-term memory, impaired judgment, impaired abstract thinking, disturbances of motivation and mood. Moreover, impairment to mood was demonstrated as the Veteran reported anxiety during the appeal period prior to September 2, 2020 to include the June 2014 VA examination. Impairment to family relations was not shown as the Veteran reported being in touch with all of his living family members to include his mother and 7 living siblings, that he was in touch with his daughter, and that he had remained in a long-term marriage in an August 2013 VA examination. Impairment to judgment and thinking were not demonstrated and such impairments were not found in the August 2013 or June 2014 VA examinations. Work and school were not attempted during the appeal period. Moreover, the record does not establish, and the Veteran does not allege, suicidal ideation, obsessional rituals which interfere with routine activities, intermittently illogical, obscure, or irrelevant speech, near-continuous panic or depression affecting the ability to function independently, appropriately and effectively, impaired impulse control, spatial disorientation, neglect of personal appearance and hygiene or difficulty in adapting to stressful circumstances. As noted above, the Veteran reported being in touch with all of his living family members to include his mother and 7 living siblings, that he was in touch with his daughter, and that he had remained in a long-term marriage; hence, the inability to establish and maintain effective relationships was not shown. Therefore, social and occupational impairment with deficiencies in most areas was not shown for the appeal period prior to September 2, 2020. For the appeal period beginning on September 2, 2020, the Veteran’s anxiety disorder manifested as occupational and social impairment with deficiencies in most areas. The Veteran’s mood was impaired as he reported irritability and anxiety and the July 2020 opinion from Dr. Q.A.S., a private psychologist, indicates that the Veteran exhibited anhedonia and amotivation. The Veteran’s spouse credibly testified during the September 2020 hearing regarding the Veteran’s irritability. The July 2020 private opinion found that the Veteran’s judgment was impaired as he does not follow through with medical treatment, even for such serious conditions as his cancer. In an October 2020 affidavit, the Veteran’s spouse stated that on one occasion when their home had no electricity, the Veteran remained in the room in their residence with a television, and sat in front of the television even though it was not on. See Affidavit (rec’d Oct. 2, 2020 ), at Paragraphs 27-33. She also recounted other instances of the Veteran’s difficulty with interacting with treating physicians, see generally id. at Paragraphs 7-23. Family relations was impaired as he had no social supports outside of a strained relationship with his wife and the Veteran testified during the September 2020 hearing that he only has contact with no more than four of his surviving six siblings. In an October 2020 affidavit, the Veteran’s wife stated that after her father’s (the Veteran’s father-in-law’s) funeral, he insisted that she drive him home immediately after the closing of the casket, even though other family members offered to take the Veteran back home. See id. at Paragraphs 35-6. Impairment to thinking was not demonstrated as the July 2020 private opinion found that there was no psychosis or thought disorder symptoms on examination, that the Veteran did not report historical experiences of psychosis, and found that the Veteran’s thought processes were clear and linear. Neither work nor school were attempted during the appeal period. As such, a rating of 70 percent is warranted for the appeal period beginning on September 2, 2020. The Board has fully, carefully, and seriously considered whether the Veteran is entitled to a rating in excess of 30 percent at any period during the appeal prior to September 2, 2020. The Board concludes that there is simply no medical evidence available that would support such a rating, and any further remand for the Veteran’s psychiatric disorder would only unnecessarily impose additional burdens upon the Board with no reasonable possibility of any benefit flowing to the Veteran, Soyini v. Derwinski, 1 Vet. App. 540 (1991). Although the Veteran underwent a private psychological evaluation from Dr. Q.A.S. in July 2020, that evaluation report was not received by the Board until October 2020. The Board has also considered whether a total rating is warranted at any time during the appeal period. However, both total and social occupational impairment is not demonstrated by the evidence of record. Total social impairment was not shown as the Veteran maintained a relationship with his wife and some of his siblings. The evidence does not suggest, and the Veteran has not alleged, gross impairment in thought processes or communication, persistent delusions or hallucinations, grossly inappropriate behavior, persistent danger of hurting self or others, intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene) or disorientation to time or place. Although memory difficulties were reported during the appeal period, memory loss for names of close relatives, own occupation, or own name was not shown or alleged. Therefore, a 100 percent rating is not warranted. The Board acknowledges the listed symptoms in the diagnostic criteria are not exhaustive, but serve as examples of the type and degree of symptoms or effects that would justify a particular rating. Mauerhan, 16 Vet. App. at 442. Additionally, the Board has not required the presence of a specified quantity of symptoms to warrant a higher rating for a mental disorder. However, based on the Veteran’s capabilities outlined above, the Board finds that the Veteran has not demonstrated the type and degree of symptoms, or their effects, resulting in a higher rating prior to September 2, 2020. Overall, the Veteran has demonstrated serious symptoms consistent with the 70 percent rating as of September 2, 2020, but not earlier. In assessing the severity of his anxiety disorder, the Board has considered the competent lay assertions regarding symptoms experienced and observed. See, e.g., Layno v. Brown, 6 Vet. App. 465, 470 (1994) and Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). However, the criteria needed to support higher ratings as the required medical findings that are within the province of trained medical professionals. See Jones v. Brown, 7 Vet. App. 134, 137-138 (1994). As such, the lay assertions are not considered more persuasive than the objective medical findings which, as indicated above, do not support assignment of any higher rating pursuant to any applicable criteria at any point pertinent to this appeal. The Veteran’s belief that he is entitled to a higher rating for his anxiety disorder is outweighed by the objective medical findings of record. That is, the Board assigns greater probative value to the pertinent objective findings on the VA examination report and treatment records that were recorded following physical examinations of the Veteran, than to the Veteran’s general belief that he is entitled to a higher rating. Consideration has been given to assigning additional staged ratings. However, at no time during the period in question has the disability warranted a higher schedular rating than that assigned, and the disability has been stable throughout each appeal period. Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran and his attorney has not raised any other issues, nor have any other issues been reasonably raised by the record in regard to the increased rating claim adjudicated herein. Doucette v. Shulkin, 28 Vet. App. 366 (2017). Accordingly, the Board finds that the preponderance of the evidence is for the assignment of a rating of 70 percent for his anxiety disorder for the appeal beginning on September 2, 2020, but no earlier; and against the assignment of a rating in excess of 70 percent at any point during the period on appeal. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, supra. REASONS FOR REMAND 1. Entitlement to a compensable rating at any time since July 23, 2014 for service-connected bilateral hearing loss is remanded. The Veteran was most recent afforded a VA audiological examination on August 28, 2014. See VA Exam (Aug. 28, 2014). Subsequent to this examination more than six years ago, the Veteran has given credible testimony that his hearing has gotten worse since his last examination. See generally Hearing Tr., supra, at Page 16. The Board interprets this as a possible suggestion that the Veteran’s bilateral hearing loss has manifested in increasingly severe symptomatology since the last VA examination of record. Accordingly, the Board determines that an updated VA examination is required to fully assess and adjudicate the Veteran's claim. See Weggerman v. Brown, 5 Vet. App. 281 (1993); Allday v. Brown, 7 Vet. App. 517 (1995); Caffrey v. Brown, 6 Vet. App. 377 (1994); Snuffer v. Gober, 10 Vet. App. 400 (1997). The matters are REMANDED for the following action: 1. The Veteran should be given the opportunity to identify any outstanding private or VA treatment records relevant to the claims of hearing loss on appeal. After obtaining any necessary authorization from the Veteran, all outstanding records should be obtained, to include updated VA treatment records. For private treatment records, make at least two (2) attempts to obtain records from any identified sources. If any such records are unavailable, inform the Veteran and his attorney and afford them an opportunity to submit any copies in their possession. For federal records, all reasonable attempts should be made to obtain such records. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 2. After the receipt of any outstanding records, schedule the Veteran for all appropriate VA examination to determine the current nature and severity of his service-connected bilateral hearing loss. The record, including a complete copy of this remand, must be made available for review in connection with the examination, and all indicated tests should be performed. (Continued on the next page)   The examiner should identify auditory thresholds, in decibels, at frequencies of 1000, 2000, 3000, and 4000 Hertz. A Maryland CNC Test should also be administered to determine speech recognition scores. Any additional evaluations, studies, and tests deemed necessary by the examiner should be conducted. The examiner should also comment upon the functional impairment resulting from the Veteran's bilateral hearing loss. A rationale for any opinion offered should be provided. In this regard, a discussion of the facts and medical principles involved would be considerable assistance to the Board. KRISTY L. ZADORA Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Michael B. Engle, 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.