Citation Nr: 21011971 Decision Date: 03/03/21 Archive Date: 03/03/21 DOCKET NO. 16-01 848 DATE: March 3, 2021 ORDER An initial disability rating in excess of 40 percent for lumbar sacroiliitis and degenerative arthritis is denied. A separate disability rating of 10 percent for radiculopathy of the left lower extremity is granted from October 9, 2013. REMANDED The issue as to whether the character of the Veteran’s discharge for the period of service from June 21, 2007 to June 26, 2009 is a bar to the receipt of VA compensation benefits is remanded. Entitlement to service connection for an acquired psychiatric disorder, to include as secondary to a service-connected disability or disabilities, is remanded. Entitlement to a compensable rating for a service-connected left ear hearing loss disability is remanded. FINDINGS OF FACT 1. The Veteran’s service-connected lumbar sacroiliitis and degenerative arthritis manifested in pain and limitation of motion, with functional loss most closely approximating limitation of flexion to 30 degrees or less. 2. From October 9, 2013, the Veteran has demonstrated subjective symptoms of radiculopathy of the left lower extremity associated with his service-connected lumbar sacroiliitis and degenerative arthritis, including pain and numbness, but not moderate incomplete paralysis or neuritis. CONCLUSIONS OF LAW 1. The criteria for entitlement to an initial disability rating in excess of 40 percent for lumbar sacroiliitis and degenerative arthritis have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.71a, Diagnostic Code 5237. 2. From October 9, 2013, the criteria for entitlement to a separate 10 percent disability rating for radiculopathy of the left lower extremity associated with the Veteran’s service-connected low back disability have been met. 38 U.S.C. § 1155, 5107; 38 C.F.R. §§ 3.102, 4.71a, Note (1), 4.124a, Diagnostic Codes 5242-5237, 8520. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had honorable service in the United States Army from April 2000 to June 2007. The Veteran’s additional service in the United States Army from June 2007 to June 2009 was determined to be dishonorable based on his discharge under other than honorable conditions. However, the issue as to whether the character of Veteran’s discharge from service for the period from June 2007 to June 2009 is a bar to VA compensation benefits is currently under appeal, and will be discussed further in the remand section below. Historically, the issues currently on appeal were addressed in a November 2018 Board decision. With respect to the issues of entitlement to service connection for an acquired psychiatric disorder and entitlement to a compensable rating for a left ear hearing loss disability, the Board remanded such claims in November 2018 for additional development. With respect to the issue of entitlement to an increased rating for a back disability and the issue as to whether the character of Veteran’s discharge from service for the period from June 2007 to June 2009 is a bar to VA compensation benefits, the Court of Appeals for Veterans Claims (Court) vacated and remanded that part of the November 2018 Board decision for additional development and readjudication. See November 2019 Joint Motion for Partial Remand (JMPR). In October 2020, the Board remanded the issues that were the subject of the November 2019 JMPR for additional development. The issues of (1) service connection for an acquired psychiatric disorder, (2) a compensable rating for a left ear hearing loss disability, (3) an increased rating for a back disability, and (4) whether the character of Veteran’s discharge from service for the period from June 2007 to June 2009 is a bar to VA compensation benefits have been returned to the Board for further appellate consideration. Regarding the Veteran’s claim for an increased rating for his back disability, the Board finds the agency of original jurisdiction (AOJ) has substantially complied with the October 2020 remand directives, and the evidence of record is sufficient to proceed with a decision on the merits. The Board regrets the additional delay, but finds remand of the other issues on appeal is necessary for additional development before an informed decision can be made. Low Back Disability Disability evaluations are determined by evaluating the extent to which a Veteran’s service-connected disability adversely affects the ability to function under the ordinary conditions of daily life, including employment, by comparing symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. The General Rating Formula for Diseases and Injuries of the Spine provides that with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease, an evaluation of 20 percent is warranted for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, the combined range of motion of the thoracolumbar spine is not greater than 120 degrees; or muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. An evaluation of 40 percent is warranted for forward flexion of the thoracolumbar spine 30 degrees or less; or favorable ankylosis of the entire thoracolumbar spine. An evaluation of 50 percent requires unfavorable ankylosis of the entire thoracolumbar spine. An evaluation of 100 percent requires unfavorable ankylosis of the entire spine. Intervertebral disc syndrome (IVDS) may be evaluated either under the General Rating Formula for Diseases and Injuries of the Spine or under the Formula for Rating IVDS Based on Incapacitating Episodes, whichever method results in the higher evaluation when all disabilities are combined. 38 C.F.R. § 4.25 (combined ratings table). The Formula for Rating IVDS Based on Incapacitating Episodes provides for a 20 percent rating when there are incapacitating episodes of IVDS having a total duration of at least two weeks, but less than four weeks during the past 12 months. 38 C.F.R. § 4.71a, Diagnostic Code 5243. A 40 percent rating is warranted when there are incapacitating episodes of IVDS having a total duration of at least four weeks, but less than six weeks during the past 12 months. A 60 percent rating when there are incapacitating episodes of IVDS having a total duration of at least six weeks during the past 12 months. An incapacitating episode is defined as a period of acute signs and symptoms due to IVDS that required bed rest prescribed by a physician and treatment by a physician. An evaluation can be had either on the total duration of incapacitating episodes over the past 12 months or by combining separate evaluations of the chronic orthopedic and neurologic manifestations along with evaluations for all other disabilities under 38 C.F.R. § 4.25, whichever method results in the higher evaluation. In this case, the Veteran was awarded service connection for lumbar sacroiliitis with an initial evaluation of 10 percent from October 9, 2013. See September 2014 rating decision. In November 2018, the Board granted an increased rating of 20 percent for the Veteran’s back disability. As noted above, in November 2019, the Court vacated and remanded that part of a November 2018 Board decision that addressed the Veteran’s increased rating claim for his back disability. Pursuant to the Board’s remand in October 2020, the Veteran was afforded a new VA examination to assess the severity of his back disability. In a December 2020 rating decision, the Veteran was assigned an initial evaluation of 40 percent for lumbar sacroiliitis and degenerative arthritis. Therefore, the Board will consider whether an initial disability rating in excess of 40 percent for lumbar sacroiliitis and degenerative arthritis is warranted. In reviewing the evidence of record, the Veteran was afforded a VA back examination in September 2014. The Veteran reported the level of pain in his back was a 6 to 7 out of 10. The Veteran reported he was unable to walk long distances or sit for more than 10 minutes due to his back disability. The Veteran reported he experienced pain at the level of his waist with exacerbations of his back disability. On initial range of motion measurements, the Veteran’s forward flexion was measured to 75 degrees, with objective evidence of painful motion beginning at 60 degrees. The examiner indicated the Veteran was unable to perform repetitive use testing due to severe pain. The examiner reported the Veteran had less movement than normal and pain on movement following repetitive use. The examiner reported the Veteran demonstrated localized tenderness or pain to palpation of the left lumbar paravertebral muscles and left sacroiliac joint. The examiner reported the Veteran had muscle spasm and guarding of the thoracolumbar spine, but that such did not result in abnormal gait or abnormal spinal contour. The examiner reported the Veteran did not have ankylosis of the spine. The examiner reported the Veteran did not have IVDS and incapacitating episodes. In an October 2014 VA note, the Veteran reported constant back pain in the lumbar region that increased in severity with prolonged standing or sitting. The provider reported the Veteran demonstrated full active range of motion. In an April 2015 VA note, the Veteran reported daily pain in his back, which he rated as a 3 to 4 out of 10. The provider reported that a physical examination of the Veteran’s back disability was consistent with facet dysfunction. In a February 2019 VA note, the provider reported the Veteran had full active and passive range of motion in all planes of the lumbar spine, with pain in rotation, extension, and lateral bending of the left side. See also June 2019 and February 2020 VA note. Pursuant to the October 2020 Board remand, the Veteran was afforded another VA back examination in December 2020. The Veteran reported he experienced constant back pain, which he described as aching and rated as about a 5 out of 10. The Veteran reported flare-ups of his back disability occurred approximately three times per year. The Veteran reported an increase in the intensity of pain with flare-ups (8 or 9 out of 10), which resulted in additional limitation in range of motion that impaired his ability to dress, bathe, or bend over to reach for low lying objects. The Veteran estimated flare-ups lasted for about one month before pain decreased to a 5 out of 10. On initial range of motion measurements, the Veteran’s forward flexion was measured to 25 degrees. The examiner reported that range of motion itself contributed to a functional loss, such as impairment with putting on socks, tying shoes, or bathing feet and legs. The examiner reported the Veteran exhibited pain with range of motion in all directions. The examiner reported the Veteran did not demonstrate evidence of pain with weight bearing. The examiner indicated the Veteran reported pain with passive and active range of motion testing. The examiner reported the Veteran was able to perform repetitive use testing with no additional loss of function or range of motion. The examiner reported the Veteran demonstrated localized tenderness or pain to palpation at the left sacroiliac joint and the left and right paravertebral muscles. The examiner estimated the Veteran’s forward flexion would be limited to 15 degrees due to pain following repeated use over time and during flare-ups. The examiner reported the Veteran had guarding of the thoracolumbar spine, but that such did not result in abnormal gait or abnormal spinal contour. The examiner reported the Veteran did not have ankylosis of the spine. The examiner reported the Veteran did not have IVDS and incapacitating episodes. The examiner reported the Veteran utilized a one-point cane and a lumbar brace for his back disability. In considering the medical and lay evidence of record, the Board finds a disability rating in excess of 40 percent for the Veteran’s service-connected lumbosacral strain with degenerative disc disease is not warranted at any time during the period on appeal. In this regard, the Board notes that a 40 percent disability rating is the highest evaluation possible based on limitation of motion of the thoracolumbar spine. As such, further consideration of functional loss due to pain or other contributing factors under 38 C.F.R. §§ 4.40, 4.45, 4.59 and DeLuca v. Brown, 8 Vet. App. 202 (1995) is not required. Johnston v. Brown, 10 Vet. App. 80, 85 (1997). The Veteran does not assert, and the evidence of record does not otherwise suggest, that the Veteran’s lumbar sacroiliitis and degenerative arthritis is manifested by unfavorable ankylosis of the entire thoracolumbar spine warranting a higher disability rating of 50 percent, or unfavorable ankylosis of the entire spine warranting a 100 percent disability rating. Additionally, there is no evidence of record that the Veteran was ever prescribed bed rest at any time for his low back disability warranting a higher evaluation under the rating criteria for IVDS. As such, an evaluation in excess of 40 percent for the Veteran’s service-connected lumbar sacroiliitis and degenerative arthritis is denied. Neurologic Abnormalities The General Rating Formula for Diseases and Injuries of the Spine requires that consideration be given to any associated objective neurologic abnormalities, which are to be evaluated separately under an appropriate diagnostic code. See 38 C.F.R. § 4.71a, Note (1). In this case, the Veteran and his representative assert that a separate disability rating is warranted for radiculopathy of the left lower extremity. See June 2018 and May 2020 Appellate Brief; see also June 2018 VA Form 21-4138. On examination in September 2014, the Veteran denied pain radiating to the legs due to his back disability, but reported he experienced cramps and numbness in his left leg. The examiner reported that muscle strength testing was normal bilaterally, and the Veteran did not demonstrate muscle atrophy. Deep tendon reflexes were hypoactive bilaterally at the knee, and normal bilaterally at the ankle. Sensation to light touch testing was normal bilaterally. Straight leg raising test was negative bilaterally. The examiner reported the Veteran demonstrated signs and symptoms due to radiculopathy, including mild intermittent pain (usually dull) and mild paresthesias and/or dysesthesias of the left lower extremity. In an October 2014 VA note, the Veteran reported numbness and tingling along the left buttock associated with his back disability. The Veteran denied bowel or bladder dysfunction. The provider reported straight leg raising test results were negative. The provider reported positive results for facet loading testing and stork testing. Sensation to light touch testing was normal. The provider reported the Veteran did not demonstrate neurologic symptoms or red flags. See also December 2015 VA note. In an April 2015 VA note, the Veteran denied weakness associated with his back disability, but reported tingling along the posterior aspect of his left leg. The Veteran denied bowel or bladder dysfunction. In an October 2017 VA note, the Veteran reported constant pain in the left lumbar region radiating down his left leg. See also August 2018 VA note. In a February 2019 VA note, the provider reported muscle strength testing was normal bilaterally, and the Veteran did not demonstrate muscle atrophy. Sensation to light touch testing was normal bilaterally, and straight leg raising testing was negative bilaterally. In an October 2019 VA note, the Veteran reported L-S radicular pain, greater on the left side. On examination in December 2020, the Veteran reported back pain that would sometimes shoot into his left thigh. The examiner reported that muscle strength testing was normal bilaterally, and the Veteran did not demonstrate muscle atrophy. Deep tendon reflexes were normal bilaterally at the knee, and normal bilaterally at the ankle. Sensation to light touch testing was normal bilaterally. Straight leg raising test was negative bilaterally. The examiner reported the Veteran did not demonstrate signs and symptoms due to radiculopathy. Under 38 C.F.R. § 4.124a , Diagnostic Code 8520, a 10 percent disability rating is warranted for mild incomplete paralysis of the sciatic nerve, 20 percent for moderate incomplete paralysis, 40 percent for moderately severe incomplete paralysis, 60 percent for incomplete paralysis that is severe with marked muscular atrophy, and a maximum 80 percent for complete paralysis of the sciatic nerve. The term “incomplete paralysis” indicates a degree of lost or impaired function substantially less than the type picture for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. Words such as “mild,” “moderate,” and “severe” are not defined in the Rating Schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are “equitable and just.” 38 C.F.R. § 4.6. In this case, the Board resolves reasonable doubt in favor of the Veteran in finding that a separate 10 percent disability rating for radiculopathy of the left lower extremity is warranted from October 9, 2013. On examination in September 2014, the Veteran reported subjective symptoms of numbness and tingling of the left lower extremity associated with his lumbar sacroiliitis and degenerative arthritis. The examiner reported the Veteran demonstrated signs and symptoms due to radiculopathy, including mild intermittent pain (usually dull) and mild paresthesias and/or dysesthesias of the left lower extremity. Although the Veteran has reported subjective signs and symptoms of radiculopathy of the left lower extremity for the entire period on appeal, the competent medical evidence of record indicates the Veteran does not have neurologic symptoms or red flags. As indicated on the VA examinations and reported in VA treatment records, the Veteran consistently demonstrated normal muscle strength and sensation to light touch of the left lower extremity. Results of straight leg raising tests have been negative, deep tendon reflex testing has generally been normal, and there is no evidence of muscle atrophy. Based on such evidence, the Board finds that the Veteran’s subjective symptoms of radiculopathy of the left lower extremity are manifested by wholly sensory involvement, warranting a separate evaluation of 10 percent, but no higher. REASONS FOR REMAND Character of Discharge As noted above, the Veteran had honorable service in the United States Army from April 2000 to June 2007. The Veteran contends that the character of his discharge under other than honorable conditions should not constitute a bar to the receipt of VA benefits for claims based on his period of service from June 21, 2007 to June 26, 2009. In November 2019, the Court vacated and remanded that part of a November 2018 Board decision that determined the character of Veteran’s service from June 21, 2007 to June 26, 2009 was a bar to receiving VA benefits based on that period of service. The November 2019 JMPR noted that the November 2018 Board decision erroneously indicated the Veteran accepted an undesirable discharge to escape trial by general court martial, when service records show that the charges against the Veteran were ultimately referred to a special court martial. See June 2009 Memorandum from the Commander. In October 2020, the Board remanded the issue concerning the character of the Veteran’s discharge in order to obtain the Veteran’s complete service personnel records. While the AOJ has substantially complied with the Board’s October 2020 remand directive to obtain the Veteran’s entire service personnel records, the Board finds remand is necessary for additional development for the reasons discussed further below. As discussed in the November 2018 Board decision, service records document that the Veteran was charged on May 14, 2009 with a number of violations of the Uniform Code of Military Justice (UCMJ). See May 2009 Charge Sheet. The Veteran was charged with willfully and unlawfully altering an evaluation report sometime between July 2005 and January 2006. The Veteran was charged with making a false official statement in November 2006 that he had served in Afghanistan for seven months. The Veteran was charged with wrongfully and without authority wearing upon his uniform in November 2006 the following awards and decorations: the Combat Action Badge, the Air Assault Badge, the ribbon representing the Bronze Star Medal, the ribbon representing the Air Medal, and the Overseas Service Bar. The Veteran was charged with making a false official statement in December 2006 that he was approved to wear the Combat Action Badge. The Veteran was charged with making a false official statement in December 2007 that he was awarded the Bronze Star Medal, the Air Medal, the Combat Action Badge, and the Air Assault Badge. The Veteran was charged with absenting himself from his unit without authority in August 2008 until September 2008. The Veteran was charged with making a false official statement in September 2008 that he had signed in and out of the unit log to take leave. The Veteran was charged with attempting in September 2008 to willfully and unlawfully appropriate, with intent to alter, the log for signing in and out of the unit for leave. On May 18, 2009, the Veteran was notified that he would be the subject of an investigation concerning the above charges preferred against him, as required before referral to a general court martial. See May 18, 2009 Memorandum from the Investigating Officer; see also 10 U.S.C. § 832 (2009). The investigating officer notified the Veteran of 19 witnesses, including several officers, staff noncommissioned officers, and civilians that would be asked to testify during the course of the investigation. Additionally, the investigating officer notified the Veteran of evidence that would be examined during the course of the investigation, including award recommendations, the Veteran’s official military personnel file, leave and earning statements, and the command’s leave sign-in/sign-out log. On May 21, 2009, the Veteran requested administrative discharge in lieu of trial by court martial. The Veteran’s request included a statement that his request for discharge was of his own free will, and also acknowledged that he was guilty of one or more of the charges, or a lesser included offense therein contained, against him. In a June 2009 memorandum to the investigating officer, the Veteran’s commander directed the suspension of the investigation into the charges preferred against the Veteran based on his decision to refer the Veteran’s case to a special court martial. In a June 2009 memorandum to the commanding general, the staff judge advocate reported the following facts with respect to the Veteran’s pending request for discharge in lieu of trial by court martial: between July 2005 and September 2008, the Veteran unlawfully altered his evaluation report; the Veteran wore awards and decorations that were not awarded to him, to include the Bronze Star Medal; the Veteran made numerous false statements regarding deployments and awards; and the Veteran made an attempt to alter the leave log after being absent without official leave for a short period of time. The staff judge advocate reported that the Veteran’s entire chain of command recommended approval of the Veteran’s request for discharge with a characterization of service under other than honorable conditions. In June 2009, the Veteran’s request for discharge in lieu of trial by court martial was approved by the commanding general. See June 2009 Memorandum from the Commanding General. The commanding general directed all charges and specifications against the Veteran be dismissed effective the date of his discharge. In June 2009, the Veteran was administratively separated from the Army in the rank of E-1, with a discharge under other than honorable conditions. In light of the commander’s decision to refer the Veteran’s case to a special court martial, the bar to receipt of VA benefits under 38 C.F.R. § 3.12(d)(1), based on acceptance of an undesirable discharge to escape trial by general court martial, is not applicable in this case. Nevertheless, a discharge under other than honorable conditions based on willful and persistent misconduct is considered to have been issued under dishonorable conditions. 38 C.F.R. § 3.12(d)(4). Under 38 C.F.R. § 3.1(n), the term “willful misconduct” means an act involving conscious wrongdoing or known prohibited action. It involves deliberate or intentional wrongdoing with knowledge of or wanton and reckless disregard of its probable consequences. Id. Additionally, a discharge under other than honorable conditions based upon an offense involving moral turpitude is considered to have been issued under dishonorable conditions. 38 C.F.R. § 3.12(d)(3). Although offenses involving moral turpitude includes, generally, conviction of a felony, the term “offense” suggests a wider range of behaviors. See VAOPGC 6-87 (July 27, 1987); see also Jordan v. De George, 341 U.S. 223, 227 (“fraud has ordinarily been the test to determine whether crimes not of the gravest character involve moral turpitude”). Following his separation from service, the Veteran has continued to assert that he had combat service in Afghanistan, and he seeks entitlement to service connection for disabilities based on such service. See January 2011 VA Form 21-526; see also October 2012 correspondence. The Veteran reported he had completed several military schools, earned medals and decorations, and served a combat tour in Afghanistan. See March 2011 VA Form 21-4138. In an April 2014 correspondence, the Veteran indicated that “issues with [his] files and documents” were revealed after senior ranking individuals tried to damage his career and invent issues because they resented his rapid advancement in the Army. The Veteran reported he never touched his military files and documents. See also December 2015 VA Form 9 (Veteran reported that he did not have access to the documents he was accused of falsifying in service). With respect to the Veteran’s assertion that he did not have access to the documents he was accused of falsifying, the Board notes that the Veteran’s military occupational specialty (MOS) was human resources specialist from April 2000 to June 2007. See February 2007 Orders (withdrawing the Veteran’s human resources specialist MOS effective June 2007). Per the Veteran’s evaluation reports associated with his service records, the Veteran’s duties as a human resources specialist involved processing and overseeing personnel actions, finance, leave, awards, and evaluations. To the extent that the Veteran asserts that he should not be barred from receiving VA benefits because he was denied due process with respect to the service administrative separation proceedings, the proper recourse for requesting a correction to his service record based on such an assertion lies with the service department not VA. See May 2020 Appellate Brief with associated correspondence. In this case, the Army Discharge Review Board (ADRB) determined that all requirements of the law and regulation were met, and the rights of the Veteran were fully protected throughout the separation process. See August 2012 ADRB Case Report (denying the Veteran’s request for a discharge upgrade). The Veteran has also asserted VA’s duty to assist includes attempting to verify whether complaints were made to the Inspector General by other, particularly other non-white soldiers, against the Veteran’s brigade sergeant major. See May 2020 Appellate Brief with associated correspondence; see also Moliter v. Shulkin, 28 Vet. App. 397, 398 (2017). The Veteran contends that such information could corroborate that the charges levied against the Veteran, which resulted in his discharge under other than honorable conditions, were false and the result of racial prejudice. See March 2011 VA Form 21-4138. As distinguishable from the appellant in Moliter, in this case, the Veteran did not adequately identify any fellow service members that filed discrimination complaints, or even adequately identify the individual that he alleges created the “false charges” for which the Veteran was separated from service under other than honorable conditions. The Board adds that the investigating officer notified the Veteran and identified 19 witnesses, including several officers, staff noncommissioned officers, and civilians, that would be asked to testify concerning the charges against the Veteran. The Veteran contends that information contained in his personnel records corroborates his assertion that he was deployed to Afghanistan. See May 2020 Appellate Brief with associated correspondence. The information and documents the Veteran cited in the correspondence associated with the May 2020 Appellate Brief do not identify the Veteran had combat service in Afghanistan from December 2002 to August 2003, with the exception of a post-deployment health assessment that was completed in July 2007. The Board observes that the documents the Veteran was charged with falsifying are still part of the service record files received by VA in November 2020. As such, the authenticity of the service record documents that do indicate the Veteran had combat service in Afghanistan have not been verified. However, the Board finds that attempts to verify the Veteran’s alleged combat service in Afghanistan through definitive sources have not been exhausted, as opposed to attempting to corroborate such service based on conjectural evidence that the charges against the Veteran for falsifying documents were the result of racial prejudice. The Veteran’s report of having combat service in Afghanistan, and having received and worn military awards and decorations based on such service, formed the basis of his discharge under other than honorable conditions. As such, the Board finds remand is necessary to attempt to obtain verification of the Veteran’s alleged combat service in Afghanistan through the U.S. Army and Joint Services Records Research Center (JSRRC), and any other appropriate sources. Service Connection – Psychiatric Disorder In this case, the additional development ordered above in relation to the issue of whether the character of the Veteran’s discharge is a bar to the receipt of VA benefits may have a bearing on the outcome of the Veteran’s claim for entitlement to service connection for a psychiatric disorder, to include his service connection claim for PTSD based on combat service in Afghanistan. As such, the Board will defer adjudication of the appellant’s service connection claim for a psychiatric disorder at this time. Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). Additionally, the Board finds remand is necessary to address the Veteran’s theory of entitlement to service connection for a psychiatric disorder as secondary to a service-connected disability or disabilities. See January 2021 Appellate Brief; see also Robinson v. Peake, 21 Vet. App. 545, 553 (2008), aff’d sub nom. Robinson v. Shinseki, 557 F.3d 1355 (Fed. Cir. 2009). Increased Rating – Left Ear Hearing Loss Disability Although it does not appear the Veteran has specifically asserted that his left ear hearing acuity has decreased, the Veteran’s representative asserts the Veteran should be afforded a new VA examination to determine the current severity of the Veteran’s service-connected left ear hearing loss disability. See January 2021 Appellate Brief. The Veteran’s representative asserts the Veteran’s last audiological evaluation in February 2016 is too old to adequately evaluate the current state of the disability. In this case, the Board observes that the Veteran underwent a VA audiological evaluation in January 2020, the results of which appear to be relatively consistent with the February 2016 VA hearing loss examination. However, as the January 2020 VA audiological evaluation does not identify the speech recognition test utilized during the evaluation, the Board finds remand is necessary to obtain clarification as to whether the Maryland CNC test was used to test speech recognition. See 38 C.F.R. § 4.85 (examination for hearing impairment must include the Maryland CNC test). The matters are REMANDED for the following action: 1. Submit a summary of the Veteran’s reported combat service in Afghanistan from December 2002 to August 2003, as described in the July 2019 VA Form 21-0781, to the U.S. Army and Joint Services Records Research Center (JSRRC). Request the JSRRC verify the Veteran’s reported combat service in the following units identified by the Veteran and other evidence of record: • HHC, 2d Bn, 82d Aviation Brigade (Task Force Saber). See December 2002 Orders received by VA in March 2020. Request verification of the Veteran’s awards and decorations through: • U.S. Army Human Resources Command Awards and Decorations Branch ATTN: AHRC-PDP-A 1600 Spearhead Division Avenue, Dept 480 Fort Knox, KY 40122-5408 Request the Veteran’s leave and earning statements from December 2002 to August 2003 from the Defense Finance and Accounting Service to verify whether the Veteran received any form of Hazardous Duty Incentive Pay during this period of time. See December 2002 Orders received by VA in March 2020 (indicating authorization of Imminent Danger Pay). 2. Following the development ordered above, schedule the Veteran for a VA examination to address the nature and etiology of the Veteran’s claimed psychiatric disorder. Upon review of the record, interview and examination of the Veteran, the examiner should respond to the following: (a.) Identify any current psychiatric disability. (b.) Is it at least as likely as not (50 percent or greater probability) that any currently diagnosed psychiatric disability had onset in or is otherwise related to service? (c.) Alternatively, is it at least as likely as not (50 percent or greater probability) that any currently diagnosed psychiatric disability was caused or aggravated by a service-connected disability or disabilities? 3. Request verification from the VA audiologist and/or the VA Audiology & Speech Pathology Service as to whether the Maryland CNC Test was used in evaluating the Veteran in January 2020. 4. Readjudicate the issues on appeal. If the benefits sought remain denied, issue the Veteran and his representative a supplemental statement of the case, and inform the Veteran of his appeal options. B. G. LeMoine Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. Mask, 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.