Citation Nr: 21009000 Decision Date: 02/18/21 Archive Date: 02/18/21 DOCKET NO. 15-18 569A DATE: February 18, 2021 REMANDED Entitlement to service connection for left ear hearing loss is remanded. Entitlement to service connection for a low back disability is remanded. Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), generalized anxiety disorder (GAD), and major depressive disorder (MDD), is remanded. Entitlement to service connection for sleep disorder is remanded. REASONS FOR REMAND The Veteran, who is the appellant in this case, served on active duty in the Army from January 1973 to May 1974. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a December 2014 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In June 2018, the Board, in pertinent part, denied entitlement to service connection for bilateral hearing loss, a low back disability, a sleep disorder, and an acquired psychiatric disorder. The Veteran appealed these denied claims. In April 2019, the United States Court of Appeals for Veterans Claims (Court) granted an April 2019 Joint Motion for Partial Remand (JMPR) by counsel for the Veteran and VA, vacated the Board's June 2018 decision, in pertinent part, as to the issues of entitlement to service connection for bilateral hearing loss, a low back disability, a sleep disorder, and an acquired psychiatric disorder, and remanded these matters to the Board for development consistent with the JMPR. In August 2019, the Board, in pertinent part, remanded these claims for additional development. Unfortunately, another remand is necessary. 1. Entitlement to service connection for left ear hearing loss is remanded. Once VA undertakes the effort to provide an examination when developing a service-connection claim, even if not statutorily obligated to do so, it must provide an adequate one. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). In the January 2020 VA audiology examination report, the examiner opined that the Veteran’s left ear hearing loss is less likely than not caused by or a result of an event in military service. The VA examiner explained that comparison of the Veteran’s enlistment and separation audiograms shows no significant threshold shifts to suggest noise injury. Additionally, the examiner cited “the IOM report,” which the Board presumes to mean the Institute of Medicine (IOM) 2006 report, Noise and Military Service: Implications for Hearing Loss and Tinnitus, for the preposition that a prolonged delay in the onset of noise-induced hearing loss is unlikely. For these reasons, based on the objective evidence (audiograms) available, the VA examiner concluded that there is no evidence on which to conclude that the Veteran’s current hearing loss of the left ear was caused by or a result of his military service, including noise exposure. Nonetheless, the Board finds this opinion inadequate because it was improperly based on a lack of medical evidence of hearing loss in service and without consideration of the Veteran’s lay reports. See Dalton v. Nicholson, 21 Vet. App. 23 (2007) (wherein the Court determined an examination was inadequate because the examiner did not comment on the Veteran's report of in-service injury and, instead, relied on the absence of evidence in his service treatment records to provide a negative opinion). Indeed, VA regulations do not preclude service connection for a hearing loss which first met VA’s definition of disability after service. Hensley v. Brown, 5 Vet. App. 155, 159 (1993). Furthermore, as noted above, the examiner referenced the IOM report finding that prolonged delay onset of noise-induced hearing loss is unlikely. However, McCray v. Wilkie, 31 Vet. App. 243 (2019), found that the IOM study contains “qualifying or contradictory statements” that negatively impact the probative value and adequacy of any VA examinations that rely upon the study. For this reason also, the Board finds that the medical opinion is inadequate and must be returned for an addendum opinion that asks the examiner to identify the medical text's qualifying or contradictory aspects and to explain why the examiner found the contradictory aspects or conclusions in the IOM study to be less persuasive in this Veteran's case as to the question of whether delayed onset hearing loss is as likely as not etiologically related to conceded in-service noise exposure or acoustic trauma. 2. Entitlement to service connection for a low back disability. In September 2020, pursuant to the Board’s August 2019 remand directives, the Veteran was afforded a VA examination. The VA examiner opined that the Veteran’s low back disability is less likely than not related to service. The VA examiner explained that a search of the pertinent evidence did not support the claim that the low back disability is as a result of the back pain that occurred during service. In an October 2020 addendum opinion, the VA examiner stated that although the Veteran’s report of symptoms was considered, there is no evidence that the low back pain reported during service was more than acute and transient in nature. A dearth of low back complaints afterwards as evidenced on the pertinent records does not support the claim of low back disability, chronic, secondary to in-service injury. While the VA examiner stated that the Veteran’s lay statements regarding continuous low back pain since service were considered, no explanation is given for why these statements were discounted, as was required by the Board’s August 2019 remand directives. To the extent that the examiner in the October 2020 addendum opinion implied that the Veteran’s reports of symptomatology since service were contradicted by the absence of contemporaneous medical evidence, the Board notes that this rationale is inadequate without further explanation. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (holding that evidence of a prolonged period without medical complaint can be considered, along with other factors concerning the veteran's health and medical treatment during and after military service, as evidence of whether a pre-existing condition was aggravated by military service). For these reasons, the September 2020 and October 2020 VA examiner’s opinions are inadequate, and remand is necessary to obtain an adequate nexus opinion. See Stegall v. West, 11 Vet. App. 268 (1998) (finding that a remand by the Board confers on the Veteran the right to compliance with its remand orders). 3. Entitlement to service connection for an acquired psychiatric disorder, to include PTSD, GAD, and MDD, is remanded. 4. Entitlement to service connection for sleep disorder is remanded. A January 2020 VA examination was obtained in compliance with the Board’s August 2019 remand directives. The VA examiner was instructed to determine whether the Veteran had any psychiatric diagnoses other than PTSD and to offer an opinion as to whether it is at least as likely as not that each such condition manifested during service or is causally related to service, to include events therein. The Board further instructed the examiner to “specifically reference the Veteran’s service personnel records, which demonstrate that an early discharge was recommended for him because he was unable to adjust to service, and exhibited substandard personal appearance, duty performance, and attitude,” and to “discuss whether these documented deficiencies were evidence of in-service psychiatric symptomatology.” In a January 2020 VA examination report, the VA examiner diagnosed the Veteran with major depressive disorder (MDD) and polysubstance abuse, in complete remission, and opined that these conditions were less likely than not related to his service. The VA examiner explained the Veteran did not described traumatic events during service and characterized the Veteran’s reported difficult experiences during service as “not life-threatening events.” The VA examiner noted that the Veteran admits to have begun substance abuse during service, including hashish, cocaine, and other drugs, and that he continued substance abused until beginning VA treatment in 2003. The VA examiner further opined that there is no nexus between the diagnosed MDD and service, and that the depressive disorder is “most probably secondary to his substance abuse and the consequences of his drug use (unemployment, marital problems, etc.)”. The VA examiner stated that polysubstance abuse is not a compensable condition, and no nexus opinion was given for this diagnosis. This opinion and its rationale do not specifically reference the Veteran’s service personnel records as instructed. In addition, the January 2020 VA examiner did not provide the requested etiology opinion as ot the Veteran’s diagnosed GAD, as directed by the Board in the August 2019 remand. See Medical Report from private treating physician, Dr. C.M.Q., received by VA in May 2014 (noting diagnosis of GAD). As such, remand is warranted to obtain an adequate opinion that complies with the Board’s prior remand directives. See Stegall, supra. In addition, the Board notes that the January 2020 VA examiner’s opinion that the diagnosed MDD is “most probably secondary to his substance abuse and the consequences of his drug use” is conclusory; adequate rationale was not provided to support the opinion. Therefore, the Board finds this nexus opinion to be inadequate, and remand is necessary to obtain an addendum opinion as to the etiology of the Veteran's currently diagnosed MDD. T To the extent that the VA examiner stated that polysubstance abuse is not a compensable condition, and no nexus opinion was given for this diagnosis, the Board notes that whether a particular diagnosis is a compensable condition is a legal conclusion, and not a medical matter. As to the claim of entitlement to service connection for a sleep disorder, the Veteran’s sleep disorder may be a symptom of, or otherwise related to, his acquired psychiatric disorder diagnoses. Therefore, the Board finds that the issues are inextricably intertwined. As such, remand is warranted for contemporaneous adjudication. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (holding that two issues are inextricably intertwined when they are so closely tied together that a final decision on one issue cannot be rendered until a decision on the other issues has been rendered). The matters are REMANDED for the following action: 1. Refer the case to the VA examiner who conducted the January 2020 VA audiology examination (or a suitable substitute) for an addendum opinion as to the etiology of the Veteran's left ear hearing loss. The entire claims file, including a copy of this Remand, should be made available to, and be reviewed by, the VA examiner. Another examination is not required; however, if the VA examiner indicates that he cannot respond to the Board's questions without examination of the Veteran, another examination should be afforded to the Veteran. After a complete review of the record, the examiner is asked to: Provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that the Veteran's current left ear hearing loss disability is related to, or caused by, in-service acoustic trauma. (a) Regarding the examiner’s partial reliance upon the IOM study, noted above, the examiner must (i) identify the medical text’s qualifying or contradictory aspects (i.e. “There is not sufficient evidence from longitudinal studies in laboratory animals or humans to determine whether permanent noise-induced hearing loss can develop much later in one’s lifetime, long after the cessation of that noise exposure”); and (ii) explain why s/he found the contradictory aspects or conclusions in the IOM study to be less persuasive in this Veteran’s case as to the question of whether delayed-onset hearing loss is as likely as not etiologically related to in-service noise exposure. A thorough explanation must be provided for all opinions rendered. 2. Obtain an addendum medical opinion from the September 2020 VA examiner (or a suitable substitute) as to the nature and etiology of the Veteran’s low back disability. The entire claims file, including a copy of this Remand, should be made available to, and be reviewed by, the VA examiner. Another examination is not required; however, if the VA examiner indicates that he or she cannot respond to the Board’s questions without examination of the Veteran, another examination should be afforded to the Veteran. After a complete review of the record, the examiner is asked to: Provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that the Veteran's current low back disability, to include lumbar spondylosis, degenerative disc disease, and arthritis, is related to, or caused by, service, to include XXX. The examiner is advised that the Veteran, as a former Medical Specialist, is competent to report his symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinions. If the examiner rejects or otherwise discounts the Veteran’s reports of symptomatology since service, a reason for doing so must be provided. A thorough explanation must be provided for all opinions rendered. 3. Obtain an addendum medical opinion from the January 2020 VA examiner (or a suitable substitute) as to the nature and etiology of the Veteran’s diagnosed acquired psychiatric disorders. The entire claims file, including a copy of this Remand, should be made available to, and be reviewed by, the VA examiner. Another examination is not required; however, if the VA examiner indicates that he or she cannot respond to the Board’s questions without examination of the Veteran, another examination should be afforded to the Veteran. After a complete review of the record, the examiner is asked to: For EACH of the Veteran’s diagnosed acquired psychiatric disorders other than PTSD, to include MDD and GAD, provide an opinion as to whether such diagnosed disorder at least as likely as not (50 percent probability or greater) manifested during service or is etiologically related to service. **In formulating this opinion), the examiner must specifically reference the Veteran’s service personnel records, which demonstrate that an early discharge was recommended for him because he was unable to adjust to service, and exhibited substandard personal appearance, duty performance, and attitude. The examiner should discuss whether these documented deficiencies were evidence of in-service psychiatric symptomatology. A complete rationale must be provided for the opinion(s) offered. 3. Then, readjudicate the issues on appeal. Megan R. Thomas Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board G. N. Wilson, 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.