Citation Nr: 21021041 Decision Date: 04/09/21 Archive Date: 04/09/21 DOCKET NO. 09-24 389 DATE: April 9, 2021 REMANDED Entitlement to service connection for bilateral hearing loss is remanded. Entitlement to service connection for an acquired psychiatric disorder is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disorders is remanded. REASONS FOR REMAND The Veteran served on active duty from August 1974 to July 1977. These matters come before the Board of Veterans’ Appeals (Board) on appeal from April 2008, September 2011, and February 2014 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. In the April 2008 rating decision, the RO in St. Petersburg, Florida, denied the Veteran’s claim for a TDIU. In the September 2011 rating decision, the RO in Montgomery, Alabama, denied entitlement to service connection for bilateral hearing loss; and in the February 2014 rating decision, the RO in Montgomery, Alabama, denied entitlement to service connection for posttraumatic stress disorder (PTSD). The Veteran timely filed substantive appeals and in a July 2017 decision, the Board remanded these issues for additional development. In a January 2020 decision, the Board denied the claims for entitlement to service connection for bilateral hearing loss and for PTSD and remanded the issue of entitlement to a TDIU. Thereafter, the Veteran appealed the January 2020 to the United States Court of Appeals for Veterans Claims (Court). In a November Joint Motion for Partial Remand (JMPR), the Secretary of VA and the Veteran (the parties) moved the Court to vacate the January 2020 decision as to the issues of entitlement to service connection for bilateral hearing loss and PTSD. In the JMPR, the parties explained that the July 2017 Board decision directives had not been substantially completed. Stegall v. West, 11 Vet. App. 268 (1998). The Court granted the JMPR in a November 2020 order. Claims for service connection for psychiatric disorders, including PTSD, may encompass claims for service connection for all diagnosed psychiatric disorders. See Clemons v. Shinseki, 23 Vet. App. 1 (2009) (when a claimant makes a claim, he is seeking service connection for symptoms regardless of how those symptoms are diagnosed or labeled). Here, the Veteran has asserted a claim for PTSD. The record indicates an assessment of other acquired psychiatric conditions, to include unspecified depressive disorder. Accordingly, the Board has recharacterized the issue on appeal as a claim of entitlement to service connection for an acquired psychiatric disorder. 1. Entitlement to service connection for an acquired psychiatric disorder. The Veteran is seeking service connection for an acquired psychiatric disorder. He contends that his disability started in service and has persisted since that time. Regarding an inservice injury or event, in a February 2014 statement, the Veteran asserted that he was interviewed by two different sergeants in basic training that asked if he was a gangster or a troublemaker because he did not have a high school diploma when he entered service. The Veteran also stated that one of the sergeants grabbed him by the neck and choked him until he almost passed out. The Veteran indicated that the sergeant did this because the he wanted the Veteran to leave the Army for not being a high school graduate. As a result, the Veteran experienced nightmares. The Veteran has also submitted a sworn statement from a fellow soldier which supported the Veteran’s narrative about the assault in service. As noted in the November 2020 JMPR, in the July 2017 decision, the Board remanded this issue for additional development and for verification of the Veteran’s reported inservice stressor. Specifically, the Board noted that the AOJ had not contacted the Department of Defense to discover whether the drill instructor claimed by the Veteran to be his assailant was stationed at the Veteran’s basic training location and whether that same individual was attached to a unit that would have come in contact with the Veteran during the time in question. The AOJ was also instructed to ask the Department of Defense whether the named drill instructor was involved in any other assault cases/claims while he was a drill instructor. While this matter was pending before the AOJ, the Appeals Management Center issued a VA memo that stated that a review of Veteran’s service records did not show “any negative changes in his behavior after basic training. Mainly due to there are [sic] no records before his basic training to compare.” July 2019 VA Memo. The AOJ also reported that its request to JSRRC did reveal any documentation that the Veteran was assaulted by his drill sergeant because his service records “are silent for any assault.” The AOJ then obtained a VA opinion in which the examiner opined that the Veteran has an unspecified depressive disorder rather than PTSD and that this disorder is less likely than not due to service because of a lack of evidence of an inservice stressor. Based on the foregoing, the Board finds that the July 2017 Board decision remand directives were not substantially completed. Specifically, there is no indication that the AOJ sought the specific records that the Board instructed it to obtain. The VA memo does not indicate that a search was conducted regarding the claimed assailants, only that Appellant’s own records were reviewed, and that his unit records could not be obtained. The Board’s instructions specified that the presence of the Veteran’s sergeant, not whether the assault was recorded, had bearing on the credibility of the Veteran’s claim. Indeed, the Veteran stated that he did not report the assault, but the Board sought unit and personal service records notwithstanding. In addition, the AOJ did not seek any records to corroborate the presence of Veteran’s friend who submitted a buddy statement, in the form of sworn testimony, that indicated he may have been a witness to the incident. Furthermore, the VA opinion obtained while this claim was in appellate status is inadequate. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Specifically, the examiner does not address the Veteran’s competent lay assertions regarding his inservice event or reconcile his differing diagnosis of unspecified depressive disorder with prior diagnoses of record of PTSD. See November 2020 JMPR. Accordingly, a remand for additional development and a new VA opinion is warranted. 2. Entitlement to service connection for bilateral hearing loss is remanded. The Veteran is seeking service connection for bilateral hearing loss. Specifically, he contends that his disability was caused by his military service, to include his military occupational specialty (MOS) as an artillery crewman. During service he fired Howitzers, M60, and grenades. He was given ear plugs but there was a problem with keeping the plug in his left ear. See October 2012 VA Form 9. Following a review of the record, the Board notes that in the July 2017 decision, the Board conceded noise exposure during service and remanded the claim for the AOJ to obtain a VA opinion regarding whether the Veteran currently has hearing loss and, if so, if that hearing loss is related to service. See also November 2020 JMPR. Pursuant to the July 2017 Board decision remand instructions, in July 2019, the AOJ obtained a VA examination and opinion. The examiner found that the Veteran experiences bilateral sensorineural hearing loss. He opined that the Veteran’s disability was less likely than not related to service because his hearing was within normal limits at separation and explained that this negates the Veteran’s subjective complaints of inservice noise injury. The Board finds that the July 2019 VA opinion is based, at least partly, on an inaccurate factual premise. See Reonal v. Brown, 5 Vet. App. 460, 461 (1993). Specifically, the examiner opines that the Veteran did not experience an inservice injury, despite the Veteran’s conceded inservice injury. See November 2020 JMPR. Accordingly, this opinion inadequate for adjudicative purposes and a remand for a new VA opinion is warranted. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). 3. Entitlement to a TDIU due to service-connected disorders. The Veteran is seeking entitlement to a TDIU. Specifically, in his October 2012 VA Form 9, the Veteran stated that he experiences constant pain in his feet and asked for his claim to be submitted to the Director of the Compensation and Pension Service (Director) for extra-schedular consideration. As noted above, in the January 2020 decision, the Board remanded this issue for additional development, which has been substantially completed. Stegall v. West, 11 Vet. App. 268 (1998). Following a review of the record, however, the issue of TDIU is inextricably intertwined with the claims for entitlement to service connection remanded herein. See Harris v. Derwinski, 1 Vet. App. 180 (1991). A positive decision on one or both of the above claims could have a significant impact upon his TDIU claim in that a finding of unemployability based on a newly service-connected disability would provide an additional avenue for an allowance. As such, the issue of entitlement to TDIU must also be remanded pending adjudication of the remanded issues. The matters are REMANDED for the following action: 1. The AOJ should send the Veteran’s January 2014 buddy statement, May 2018 statement, April 2019 Statements, along with the other statements made by the Veteran and relevant evidence, to the National Personnel Records Center (NPRC), if appropriate, and the US Joint Service Records Retention Center (JSRRC). The AOJ should ask each of the units whether they can confirm the presence of the Veteran, his duties, and any event he comments thereon. Because the statement the Veteran provided includes individuals who may have been a witness or who may have been the putative assailant, the AOJ should request from NPRC confirmation of the individuals’ presence during the time in question. Any obtained evidence should be included in the electronic claims file for future review. See November 2020 JMPR. 2. Following the above, the AOJ must make a specific determination, based upon the complete record, with respect to whether the Veteran was exposed to a stressor or stressors in service, and, if so, the nature of the specific stressor or stressors. The AOJ must specifically render a finding as to whether the record establishes the existence of a stressor or stressors to include the stressor of a personal physical assault. In reaching this determination, the AOJ should address any credibility questions raised by the record. 3. After the above steps are complete, the AOJ should obtain an addendum opinion from an appropriate VA examiner regarding the Veteran’s acquired psychiatric disorders. The record, to include a copy of this Remand, must be made available to and be reviewed by the examiner, and the examination report should note that review. If an opinion cannot be obtained without an examination, then a VA examination should be afforded to the Veteran. The VA examiner/clinician should address the following: (A) Identify any psychiatric disorder diagnosed during the pendency of the appeal, to include any PTSD and/or unspecified depressive disorder. If PTSD is not diagnosed, the examiner should reconcile that determination with evidence of record showing that the Veteran has been diagnosed as having PTSD. (B) For each diagnosed disorder, determine whether it is at least as likely as not (i.e. a 50 percent probability or greater) that the Veteran has a current psychiatric disability that began during or is due to military service, to include as to due to an inservice personal assault. In rendering the opinion, even if the Veteran’s reported stressor event is not verified, the psychiatric examiner is requested discuss the Veteran’s submitted stressor statements and the sworn testimony provided in buddy statements. The psychiatric examiner should also review the Veteran’s service treatment records, service personnel records, and the other evidence of record, for the purpose of determining whether the records support his contentions that he was personally assaulted in service. If there is a particular basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. In doing so, the examiner should note that a lack of documentation of treatment in the Veteran’s service treatment records or a lack of formal diagnosis before and during service cannot be the only basis by which to reject a possible nexus to service. The examiner must provide a comprehensive report including rationales for all opinions and conclusions, citing the objective medical findings leading to the examiner’s conclusions. If further testing or examination by specialists is required to evaluate the claimed disorder, such testing or examination is to be done before completion of the examination report. The report of the examination should include a complete rationale for all opinions expressed. 4. Obtain an addendum opinion for an appropriate VA examiner to determine the nature and etiology of the Veteran’s bilateral hearing loss. The record, to include a copy of this Remand, must be made available to and be reviewed by the examiner, and the examination report should note that review. The need for an examination is left to the discretion of the clinician selected to write the opinion. After a review of the record the examiner should opine on whether it is at least as likely as not (i.e. a 50 percent probability or greater) that the Veteran has bilateral hearing loss as a result of his military service, to include as due to his conceded inservice noise exposure. In doing so, the examiner should address the Veteran’s lay assertions regarding difficulty in keeping his earplugs in his ears during service. The examiner is also reminded that a lack of threshold shift, by itself, is insufficient rationale to support any conclusion reached. The examination report must include a complete rationale for all opinions provided. If the examiner cannot provide the requested opinion(s) without resorting to speculation, the report should expressly indicate this, and the examiner should explain why an opinion cannot be provided without resorting to speculation. 5. After completing the requested actions, and any additional notification and/or development deemed warranted, readjudicate the issues on appeal, to include the issue of entitlement to a TDIU. If the benefits sought on appeal remain denied, furnish to the Veteran and his representative an appropriate supplemental statement of the case (SSOC) that includes clear reasons and bases for all determinations, and afford them the appropriate time period for response before the claims file is returned to the Board for further appellate consideration. KRISTI L. GUNN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Kaufer, 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.