Citation Nr: 21013976 Decision Date: 03/11/21 Archive Date: 03/11/21 DOCKET NO. 10-30 711 DATE: March 11, 2021 REMANDED Entitlement to a disability rating in excess of 10 percent for gastritis is remanded. Entitlement to a disability rating, in excess of 70 percent as of October 16, 2020, and in excess of 50 percent prior to that for the Veteran’s dysthymia is remanded. Entitlement to service connection for bilateral hearing loss is remanded. Entitlement to service connection for a neck disability is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Marine Corps from April 1978 to April 1981. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from an April 2016 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Lincoln, Nebraska. This case was previously before the Board in November 2018. At the time the Board reopened the Veteran’s claim for bilateral hearing loss. The Board remanded this case to the agency of original jurisdiction (AOJ) for additional development. In May 2020, the RO increased the Veteran’s disability rating for dysthymia to 70 percent effective October 16, 2019. After taking further action, the AOJ confirmed and continued the prior denial and returned the case to the Board. 1. Entitlement to a disability rating in excess of 10 percent for gastritis. 2. Entitlement to a disability rating in excess of 70 percent as of October 16, 2020, and in excess of 50 percent prior to that, for the Veteran’s dysthymia. Although the Board sincerely regrets the additional delay, a remand is necessary to ensure that there is a complete record upon which to decide the Veteran’s claim and to afford him every possible consideration. The AOJ obtained records from the Social Security Administration (SSA) in October 2014. At that time, the evidence obtained indicated that SSA had not found the Veteran to be disabled. Subsequently, however, October 2020 VA treatment records indicate he had “100% SSDI” (Social Security Disability Insurance). This evidence suggests there may have been a change in SSA’s determination. As such, records from SSA must be updated as there may be more recent records relevant to the Veteran’s claim. The change in SSA’s determination regarding the Veteran’s disability status suggests that SSA may have additional records, relevant to the present appeal, that were not included in the packet provided in October 2014. Additional development is therefore required. 38 C.F.R. § 3.159(c). 3. Entitlement to service connection for bilateral hearing loss. The Veteran was afforded a VA examination in September 2019. The examiner stated that the Veteran’s right and left ear hearing loss was not at least as likely caused by or a result of an event in military service. To support this conclusion the examiner stated that the 1978 entrance examination and the 1981 separation examination both revealed hearing within normal limits bilaterally. The United States Court of Appeals for Veterans Claims (Court) has observed that the threshold for normal hearing is from 0 to 20 decibels. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). The April 1981 separation examination demonstrates the Veteran’s audiometer resulted in a Puretone threshold of 25 decibels at 500 Hertz. As such the Veteran’s hearing at separation was not within normal limits. Therefore, a remand is necessary. Further, the examiner stated, “there is a significant permanent shift in hearing threshold beyond test variability from entrance to separation.” This statement is not consistent with the conclusion, and the examiner did not address this conflict. As such a remand is necessary. The Board notes the Veteran was afforded a VA examination in May 2013. However, in November 2018 the Board found that an additional examination is necessary, therefore the Board is not able to decide the Veteran’s claim based on the examinations currently in the record. 4. Entitlement to service connection for a neck disability. The Veteran was afforded a VA examination in October 2019. The examiner stated that the Veteran’s neck disability was less likely than not incurred in or caused by the claimed in-service event, injury, or illness. To support this conclusion the examiner stated the examination was not completed. This stated rationale is not supportive of the conclusion and the conclusion otherwise lacks supportive rationale. The examiner did not identify what part of the examination was not completed and what was necessary in order to further explain the conclusion. Nevertheless, as the examiner provided a conclusion without supportive rationale, an addendum opinion is necessary. The matters are REMANDED for the following action: 1. Obtain copies of records pertaining to any VA treatment the Veteran has received since the time that such records were last procured, following the procedures set forth in 38 C.F.R. § 3.159. The evidence obtained, if any, should be associated with the record. 2. Ask SSA to provide copies of any relevant records in its possession pertaining to its consideration of the Veteran’s application for SSA benefits, to particularly include any relevant medical records considered, following the procedures set forth in 38 C.F.R. § 3.159. Efforts to obtain the evidence should be fully documented and should be discontinued only if it is concluded that the evidence sought does not exist or that further efforts to obtain the evidence would be futile. 38 C.F.R. § 3.159(c)(2). The evidence obtained, if any, should be associated with the record. If any of the records sought are not available, the record should be annotated to reflect that fact, and the Veteran and his representative should be notified. 3. To the extent possible, make arrangements to provide the record on appeal to the VA examiner who previously offered opinions with respect to the etiology of the Veteran’s bilateral hearing loss in September 2019. The examiner should be asked to again review the expanded record and prepare a supplemental report as to whether it is at least as likely as not (i.e., whether it is 50 percent or more probable) that the Veteran has a hearing loss disability that had its onset during, or is otherwise related to, the Veteran’s military service, including the Veteran’s conceded in-service hazardous noise exposure In so doing, the examiner should discuss the medical significance, if any, of the fact that the Veteran’s separation examination in April 1981 showed a Puretone threshold of 25 decibels at 500 Hertz. If the September 2019 examiner is no longer employed by VA or is otherwise unable to provide the opinion(s) requested, arrange to obtain the requested information from another qualified examiner. The need for another examination and/or telephonic or video interview of the Veteran is left to the discretion of the examiner(s) selected to offer the requested opinions. A complete rationale for all opinions expressed must be provided. 4. To the extent possible, make arrangements to provide the record on appeal to the VA examiner who previously offered opinions with respect to the etiology of the Veteran’s neck disability in October 2019. The examiner should be asked to again review the expanded record and prepare a supplemental report as to whether it is at least as likely as not (i.e., whether it is 50 percent or more probable) that the Veteran has a neck disability that had its onset during, or is otherwise related to, the Veteran’s military service. In so doing, the examiner should discuss the medical significance, if any, of the fact that the Veteran reported an in-service jeep rollover accident as well as being hit in the head with an ammo box. If the October 2019 examiner is no longer employed by VA or is otherwise unable to provide the opinion(s) requested, arrange to obtain the requested information from another qualified examiner. The need for another examination and/or telephonic or video interview of the Veteran is left to the discretion of the examiner(s) selected to offer the requested opinions. A complete rationale for all opinions expressed must be provided. 5. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the Veteran’s claim should be readjudicated based on the entirety of the evidence. If any benefit sought remains denied, the Veteran and his representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. Saudiee Brown Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Smith, 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.