Citation Nr: 21023018 Decision Date: 04/19/21 Archive Date: 04/19/21 DOCKET NO. 09-11 475 DATE: April 19, 2021 ORDER Entitlement to service connection for residuals of prostate cancer, to include as due to ionizing radiation exposure is denied. Entitlement to an initial compensable rating for bilateral hearing loss prior to January 14, 2015, is denied. Entitlement to a rating of 10 percent for bilateral hearing loss from January 14, 2015, to August 12, 2015, is granted. Entitlement to a rating in excess of 30 percent for bilateral hearing loss from January 23, 2020 to the present is denied. REMANDED Entitlement to service connection for an acquired psychiatric disability, to include depression and posttraumatic stress disorder is remanded. Entitlement to a rating in excess of 20 percent from August 12, 2015, to January 23, 2020, for bilateral hearing loss is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. There is no competent evidence of exposure to ionizing radiation. 2. The Veteran’s prostate cancer and residuals thereof did not have its onset in service or manifest to a compensable degree within one year of separation from service, and is not otherwise related to service, to include ionizing radiation. 3. Prior to January 14, 2015, the Veteran’s bilateral hearing loss was manifested by no worse than Level I hearing acuity for the right ear and Level III hearing acuity for the left ear, with no exceptional pattern of hearing. 4. The Veteran’s January 14, 2015, audiological testing showed an exceptional pattern of hearing loss for the right ear resulting in Level IV hearing acuity for the right ear. Testing results from this test were not valid for the left ear based upon the use the NU 6 word list. 5. The Veteran’s August 12, 2015 VA hearing examination showed an exceptional pattern of hearing loss for both ears resulting in Level VI hearing acuity in the right ear and level IV hearing acuity in the left ear. 6. The Veteran’s January 23, 2020 VA hearing examination showed an exceptional pattern of hearing loss for both ears resulting in Level V hearing acuity in the right ear and level VII hearing acuity in the left ear. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for prostate cancer, to include as due to in-service exposure to ionizing radiation have not been met. 38 U.S.C. §§ 1110, 1131, 1137, 5107; 38 C.F.R. §§ 3.303, 3.310. 2. Prior to January 14, 2015, the criteria for an initial compensable disability rating for bilateral hearing loss have not been met. 38 U.S.C. § 1155, 5103; 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.7, 4.85, Diagnostic Code 6100. 3. From January 14, 2015, to August 12, 2015, the criteria for a 10 percent disability rating for bilateral hearing loss have been met. 38 U.S.C. § 1155, 5103; 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.7, 4.85, Diagnostic Code 6100. 4. From January 23, 2020, to the present, the criteria for a rating in excess of 30 percent for bilateral hearing loss have not been met. 38 U.S.C. § 1155, 5103; 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.7, 4.85, Diagnostic Code 6100. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from July 1958 to April 1961 and from June 1961 to May 1964. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a June 2006 rating decision issued by a Regional Office (RO) for Department of Veterans Affairs (VA), which granted the Veteran’s claim of service connection for bilateral hearing loss and assigned a zero percent rating effective February 14, 2005. The RO also denied the claims for service connection for prostate cancer, to include as due to ionizing radiation exposure. The issue of entitlement to service connection for an acquired psychiatric disability is on appeal from a March 2009 rating decision which denied the Veteran’s claim. The RO separately adjudicated a service connection claim for PTSD in a September 2011 rating decision. A Travel Board hearing was held at the RO in February 2012 before the undersigned Veterans Law Judge and a copy of the hearing transcript has been associated with the record. In August 2012, the Board remanded the case for further development. In November 2015, the RO granted an initial compensable rating of 20 percent for bilateral hearing loss, effective August 12, 2015. This appeal has been advanced on the Board’s docket pursuant to 38 C.F.R. § 20.900(c), 38 U.S.C. § 7107(a)(2). Service Connection 1. Entitlement to service connection for residuals of prostate cancer, to include as due to ionizing radiation exposure The Veteran asserts that service connection is warranted for residuals of prostate cancer, to include as due to ionizing radiation exposure. Generally, to establish service connection a Veteran must show: “(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service.” Davidson v. Shinseki, 581 F.3d 1313, 1315-16 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303 (d). Service connection for a recognized chronic disease can also be established through continuity of symptomatology. Walker v. Shinseki, 708 F.3d 1331 (2013); 38 C.F.R. §§ 3.303 (b), 3.309. For chronic diseases shown as such in service or within the applicable presumptive period, subsequent manifestations of the same chronic disease at any later date are serviceconnected unless attributable to an intercurrent cause. 38 C.F.R. § 3.303 (b). For a chronic disease to be considered to have been “shown in service,” there must be a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings. Id. When the condition noted in-service or within the presumptive period is not a chronic disease, a showing of continuity of symptomatology after discharge is required. Id. Additionally, the Veteran contends that his disabilities were caused by exposure to ionizing radiation. Service connection for a disability attributable to exposure to ionizing radiation during service will be presumptively granted. 38 C.F.R. § 3.309 (d). Service connection can be demonstrated by three methods: (1) under 38 C.F.R. § 3.309 (d), if the veteran is radiation-exposed and diagnosed with one of the 15 types of cancer, which are presumptively service connected; (2) under 38 C.F.R. § 3.311 (b), if the veteran is diagnosed with a radiogenic disease and certain conditions are met, or (3) by establishing the elements for direct service connection. See Davis v. Brown, 10 Vet. App. 209, 211 (1997). A radiation-exposed veteran is defined by 38 C.F.R. § 3.309 (d)(3) as a veteran who, while serving on active duty or on active duty for training or inactive duty training, participated in a radiation-risk activity. Radiation-risk activity is defined to mean onsite participation in a test involving the atmospheric detonation of a nuclear device; the occupation of Hiroshima, Japan or Nagasaki, Japan by United States forces during the period beginning on August 6, 1945, and ending on July 1, 1946; or internment as a prisoner of war (or service on active duty in Japan immediately following such internment) during World War II which resulted in an opportunity for exposure to ionizing radiation comparable to that of the United States occupational forces in Hiroshima or Nagasaki during the period from August 6, 1945 through July 1, 1946. Second, radiogenic diseases will be service connected provided certain processing conditions are met. 38 C.F.R. §§ 3.303 (d), 3.311. Pursuant to 38 C.F.R. § 3.311, when it is determined that: (1) the Veteran was exposed to ionizing radiation in service; (2) he subsequently developed a radiogenic disease; and (3) such disease first became manifest within a period specified by the regulations, a request for available records concerning the veteran’s exposure to radiation will be made and the case will be referred to the Under Secretary for Health for review as to whether sound scientific medical evidence supports the conclusion that it is at least as likely as not that the veteran’s disease resulted from radiation exposure during service. 38 U.S.C. § 501 (2012); 38 C.F.R. § 3.311 (b). The term radiogenic disease means a disease that may be induced by ionizing radiation. 38 C.F.R. §§ 3.311 (b). The diseases listed in 38 C.F.R. § 3.309 (d) are diseases in which the VA has determined that a positive association with radiation exposure exists. For cancer, the disease must have manifested five years or more after exposure. 38 C.F.R. § 3.311 (b)(5). This section does not provide presumptive service connection for radiogenic diseases, but only outlines a procedure to be followed for adjudication purposes. Medical opinions are ultimately the criteria upon which service connection rests under this regulation. In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and continuity of his current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Likewise, the Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence, which it finds to be more persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Equal weight is not accorded to each piece of evidence contained in the record; not every item of evidence has the same probative value. When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107 (b) (2012). The Veteran contends that he was exposed to ionizing radiation while stationed in Turkey. The Veteran notes that there was a radiation tab the on the wall while he was stationed in Turkey which would alert if radiation levels became too high. See February 2012 Hearing Transcript at 11-12. The Veteran indicated his duties included routine maintenance and daily training which included disassembling, assembling, and cleaning the nuclear weapons. See September 7, 2007 correspondence. The Veteran indicated that he could not recall any time when this radiation tag ever indicated dangerous levels. Id at 12. The Veteran indicated that he did not develop prostate cancer until the 1990’s, but indicated he had an enlarged prostate shortly after separating from service in the 1960’s. Id at 16. The Veteran stated he received this diagnosis by a company doctor for Continental Can and that he began working for this company on June 6th, 1966. The Board notes that the Veteran’s service personnel records show that he was provided with CBR (Chemical, Biological, Radiological) training in June 1963. See January 9, 2015 Military Personnel Records. Following the last Board remand, an October 2019 request was sent to U.S Army Medical Command regarding the Veteran’s assertions regarding exposure to radioactive material during his service in Turkey. A December 4, 2019 response from the Army Dosimetry Center (associated with the claims file December 13, 2019) to this request indicated that research had been conducted regarding the Veteran’s exposure to ionizing radiation and they were unable to locate any records indicating exposure to ionizing radiation for him. The Board finds that the research undertaken to verify the Veteran’s statements regarding radiation exposure are highly probative and they yielded negative results. The Board does not assign any probative value to the Veteran’s allegations that he may have been exposed to radiation as his personnel records do not corroborate this assertion. Further, the Veteran could not recall any time was there any indication that harmful levels of radiation were detected by the wall tag he testified to at his February 2012 Board hearing. It is reasonable to conclude that had the Veteran been exposed to radiation, there would be some type of record of such exposure. Therefore, the Board finds that the Veteran is not entitled to consideration under 38 C.F.R. § 3.311 as there is no competent evidence of exposure to ionizing radiation. The Veteran submitted numerous articles regarding the effects of radiation on the development of cancers, however, as the Board has found that there is no competent evidence showing that the Veteran was exposed to radiation these articles have no probative value. See December 15, 2011 Web/HTML documents. Notwithstanding the foregoing, the appellant may still establish service connection on a direct basis. See Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). The Veteran had no complaints, or treatment for prostate cancer while in service. Moreover, there is no evidence of a diagnosis of prostate cancer during military service and the medical evidence confirms the diagnosis was more than a year following discharge of the Veteran’s active duty. In August 2015, the Veteran was afforded a VA examination where the examiner noted the Veteran’s history of prostate cancer in 1993. The Veteran reported that he underwent a radical prostatectomy in 1993 and the examiner noted the condition was in remission. The examiner opined that it was less likely than not that the Veteran’s prostate cancer was related to service. The examiner reasoned that the Veteran’s prostate cancer with residuals there are no medical records showing diagnosis or treatment for the prostate condition or any related prostate condition while veteran was still in service. Furthermore, there were no evidence that the Veteran was exposed to any radiation and/or chemical agent during active duty. The Board finds the August 2015 medical opinion to be the most probative evidence of record. See Prejean v. West, 13 Vet. App. 444, 448-49 (2000) (holding that among the factors for assessing the probative value of a medical opinion are the examiner’s access to the claims file and the thoroughness and detail of the opinion). The examiner reviewed the Veteran’s records, including service treatment records and the electronic claims folder and provided an opinion with adequate rationale to support the conclusion. The examiner opined against any etiological relationship between the Veteran’s prostate cancer and his service. The Board does not assign any probative value to the Veteran’s statement regarding the etiology of his prostate cancer as he is not competent to opine on such a complex medical issue such as cancer. Although he is competent to state that he received treatment for an enlarged prostate in 1966 he does not possess the medical training to render an opinion as to whether this condition was related to service and the Board finds that any such condition did not develop during service or within one year of separation of service and therefore are not presumptively linked to service. Given that the Board has found the unfavorable August 2015 VA medical opinion to be the most probative evidence of record, the preponderance of the evidence is against the Veteran’s claim for service connection, and the claim must be denied. As the preponderance of the evidence is against the Veteran’s claim, the benefit-of-the-doubt rule does not apply. See 38 U.S.C. §5107. 2. Entitlement to an initial compensable rating prior to August 12, 2015, and a rating in excess of 30 from January 23, 2020 The Veteran initially filed a claim for bilateral hearing loss on February 14, 2005. He contends that his bilateral hearing loss is more disabling than the non-compensable rating that the VA initially assigned in the June 2006 rating decision that granted service connection for his hearing loss. The Veteran was assigned a 20 percent rating from August 12, 2015 by a November 2015 rating decision and a 30 percent rating has been assigned since January 23, 2020 by a January 2021 rating decision. The Veteran filed a notice of disagreement to the November 2015 rating decision indicating he believed his hearing loss warranted a 100 percent rating. The Board has remanded the matter of a rating in excess of 20 percent from August 12, 2015, until January 23, 2020, in order to obtain the results of a May 14, 2018, audiological assessment as discussed in the remand section below. Disability ratings are determined by applying the criteria established in VA’s Schedule for Rating Disabilities, which is based upon the average impairment of earning capacity. Individual disabilities are assigned separate Diagnostic Codes. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.1, 4.20 (2017). When a question arises as to which of two ratings applies under a particular Diagnostic Code, the higher evaluation is assigned if the disability more nearly approximates the criteria for the higher rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2017). Consideration must be given to increased evaluations under other potentially applicable Diagnostic Codes. Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). Staged ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007) (citing Fenderson v. West, 12 Vet. App. 119, 126 (1999)). Given the nature of the present claim for a higher initial evaluation, the Board has considered all evidence of severity since the effective date for the award of service connection in June 2009. Ratings of hearing loss range from noncompensable to 100 percent based on organic impairment of hearing acuity as measured by the results of speech discrimination tests combined with the average hearing threshold levels as measured by pure tone audiometry tests in the frequencies 1000, 2000, 3000, and 4000 Hertz. To rate the degree of disability for hearing loss, the Rating Schedule has established eleven auditory acuity levels, designated from Level I, for essentially normal acuity, through Level XI, for profound deafness. 38 C.F.R. § 4.85 (h), Table VI (2016). The assignment of disability ratings for hearing impairment is derived by a mechanical application of the Rating Schedule to the numeric designations assigned after audiometric evaluations are rendered. Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). When exceptional patterns of hearing impairment hearing exist such as when puretone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz ) is 55 decibels or more, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or Table VIa, whichever results in the higher numeral. Each ear will be evaluated separately. 38 C.F.R. § 4.86 (a) (2017). When the puretone threshold is 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hertz, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or Table VIA, whichever results in the higher numeral. That numeral will then be elevated to the next higher Roman numeral. 38 C.F.R. § 4.86 (b) (2017). Evidence from February 2005 until August 12, 2015 The Veteran was first provided with a VA audiological examination in November 2005 in connection with his hearing loss claim. At that time the Veteran reported that he had difficulty understanding speech and the examiner noted the Veteran had not lost time from work due to his hearing loss. The Veteran’s Maryland CNC Word List speech recognition score and pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 Avg CNC RIGHT 15 55 50 50 42.5 92% LEFT 15 50 65 45 43.75 80% The Veteran was provided with another VA audiological examination in February 2011. At that time the Veteran reported that he had difficulty hearing with background noise, on the telephone, and had ringing in both ears. The Veteran used hearing aids. The Veteran’s Maryland CNC Word List speech recognition score and pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 Avg CNC RIGHT 30 55 55 60 50 96% LEFT 15 50 65 45 43.75 84% Applying the results to Table VI, the findings yield a numeric designation of Level I in the right ear and Level III in the left ear for the November 2005 hearing examination and Level I in the right ear and Level II for the left ear for the February 2011 examination. Entering the resulting bilateral numeric designation to 38 C.F.R. § 4.85, Table VII, equates to a noncompensable disability rating under Diagnostic Code 6100. An exceptional pattern of hearing impairment under 38 C.F.R. § 4.86 was not shown prior by either exam. VA audiological testing from the Veteran’s treatment records was associated with the claims file on October 15, 2019 per the prior Board remand. The Board notes that each of these audiological tests were conducted using the NU 6 word list rather than the Maryland CNC word list and are therefore not valid for VA rating purposes. See July 27, 2015 and February 2, 2016 CAPRI records. The January 14, 2015 VA audiological testing showed exceptional hearing loss for the right ear only based upon puretone testing. HERTZ 1000 2000 3000 4000 Avg RIGHT 55 60 60 55 57.5 Applying the results to Table VIA yields Level IV in the right ear. As the left ear hearing results did not show an exceptional pattern of hearing loss and the testing results are not valid for rating purposes based upon the failure to use the Maryland CNC word list the Board has considered the results of prior testing to assign a level of hearing loss to the left ear. As the maximum hearing loss shown on prior testing which is valid for rating purposes was Level III on November 2005 testing the Board has provided the Veteran with the benefit of the doubt and assigned this as his hearing loss. Entering the resulting bilateral numeric designation of Level IV for the right ear and Level III for the left ear to 38 C.F.R. § 4.85, Table VII, equates to a 10 percent disability rating under Diagnostic Code 6100. The Veteran was provided with another VA audiological examination in August 2015. At that time the Veteran reported that the functional impairment related to his hearing loss was that he couldn’t go to movies, plays, church, social gatherings, lectures, or work due not being able to hear. The Veteran’s Maryland CNC Word List speech recognition score and pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 Avg CNC RIGHT 60 75 75 75 71.25 80% LEFT 55 65 60 55 58.75 90% Applying the results to Table VI, the findings yield a numeric designation of Level IV in the right ear and Level III in the left ear. An exceptional pattern of hearing impairment under 38 C.F.R. § 4.86 was shown in both ears. Applying the results to Table VIA yields Level VI in the right ear and level IV in the left ear. Here, Table VIA yields the highest rating for the right ear and Table VIA yields the highest rating for the left ear, which equates to a 20 percent rating pursuant to 38 C.F.R. § 4.85, Table VII. Evidence From January 23, 2020, to present The Veteran was provided with a VA audiological examination on remand in January 2020. The Veteran reported that the functional impairment related to his hearing loss was that he had a lot of trouble hearing on the phone and in any conversations. The examiner noted that the condition caused the Veteran to have a significant amount of difficulty understanding normal conversations and, on the phone, and indicated that this would limit him severely in most if not all occupational settings. The Veteran’s Maryland CNC Word List speech recognition score and pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 Avg CNC RIGHT 60 60 65 70 63.75 80% LEFT 60 65 60 65 62.5 52% Applying the results to Table VI, the findings yield a numeric designation of Level IV in the right ear and Level VII in the left ear. An exceptional pattern of hearing impairment under 38 C.F.R. § 4.86 was shown in both ears. Applying the results to Table VIA yields Level V in the right ear and level V in the left ear. Here, Table VIA yields the highest rating for the right ear and Table VI yields the highest rating for the left ear, which equates to a 30 percent rating pursuant to 38 C.F.R. § 4.85, Table VII. Based on the evidence above, a compensable rating is not warranted prior to January 14, 2015, a rating in excess is not warranted from January 14, 2015 until August 12, 2015, and a rating in excess of 30 percent for the Veteran’s bilateral hearing loss is not warranted at any time from January 23, 2020 to the present. The Board notes the Veteran is in receipt of a 20 percent rating from August 12, 2015, until January 23, 2020, and this time period is addressed in the remand section below. The Board expressly acknowledges its consideration of the lay evidence of record when adjudicating this claim, including the Veteran’s difficulties engaging in activities and conversations. The Veteran is competent to report difficulty with his hearing; however, disability ratings for hearing loss are derived from a mechanical application of the rating schedule to the numeric designations resulting from audiometric testing. See Lendenmann v. Principi, 3 Vet. App. 345 (1992). The rating criteria contemplate speech reception thresholds and ability to hear spoken words on Maryland CNC testing. The functional impact that the Veteran describes, is contemplated by the rating criteria. Doucette v. Shulkin, 28 Vet. App. 366 (2017). The Veteran’s main complaint is reduced hearing acuity and clarity, which is what is contemplated in the rating assigned. See Rossy v. Shulkin, 29 Vet. App. 142, 145 (2017). Accordingly, the preponderance of the most probative evidence is against the claim of entitlement to an initial compensable rating prior to January 14, 2015, a rating in excess of 10 percent prior to August 12, 2015, and a rating in excess of 30 percent for the period from January 23, 2020, to the present for hearing loss. In reaching the conclusion above, the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the Veteran’s claim, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND 1. Entitlement to service connection for an acquired psychiatric disability, to include depression and posttraumatic stress disorder is remanded The Board remanded this matter for further examination and opinion in November 2017. A VA examination was conducted in January 2020 and an addendum opinion was obtained to clarify conflicting statements within the initial opinion in December 2020. The examiner initially found that it was at least as likely as not that the Veteran’s diagnoses of Unspecified Trauma and Stressor Related Disorder and Major Depressive Disorder were incurred or caused by the in-service injury, event, or illness. The addendum opinion indicated that the preponderance of the evidence suggested his Unspecified Trauma and Stressor Related Disorder was not consistent with marker evidence his records. This addendum opinion noted that the Veteran’s Major Depressive Disorder was not currently service-connected but did not offer any further clarification as to whether it was consistent with the in-service events described by the Veteran. As the examination report is unclear as to whether the Veteran’s Major Depressive Disorder is related to service the Board finds that an addendum opinion is necessary. Additionally, the Board notes that a February 1, 2012 VA psychiatry progress note indicated that the Veteran has hearing loss and cannot make out what others are saying and that he was depressed and had crying spells. As this evidence suggests his depression may be caused or aggravated by his hearing loss, the Board will request that an opinion regarding secondary service connection and aggravation be obtained on remand. 2. Entitlement to a rating in excess of 20 percent from August 12, 2015, to January 23, 2020, for bilateral hearing loss is remanded The Veteran’s VA treatment records indicate that he was seen for a comprehensive audiological assessment on May 14, 2018. the complete audiological results of the hearing evaluations are not provided. The treatment record notes that audiograms were performed and showed essentially no change since a March 20, 2017 evaluation. As the puretone thresholds for the March 2017 and May 2018 audiograms, if procured, could bear on the outcome of his claim, efforts must be made to obtain them. See 38 U.S.C. § 5103A; 38 C.F.R. § 3.159; Bell v. Derwinski, 2 Vet. App. 611 (1992) (holding that VA is charged with constructive notice of medical evidence in its possession) 3. Entitlement to a total disability rating based on individual unemployability is remanded. The Veteran meets the schedular requirements for a TDIU from January 18, 2016 and the most recent VA examination for his bilateral hearing loss indicates that this condition would cause impairment with his ability to function within a work setting. The Board finds that the issue of entitlement to a TDIU has been raised by the record and is a part of the Veteran’s appeal for higher ratings for his hearing loss. See Rice v. Shinseki, 22 Vet. App. 447, 454. The matters are REMANDED for the following action: 1. Update VA and private treatment records. VA treatment records appear current up to March 2020. 2. Obtain the complete results of the audiograms preformed on March 20, 2017 and May 14, 2018 as noted in the Veteran’s VA treatment records. If either audiogram is unavailable, a formal finding of unavailability should be made and noted in the file. The Veteran should be notified and provided an opportunity to respond. 3. After all outstanding records have been associated with the claims file, obtain an addendum opinion from the January 2020 examiner. The need for further examination is left to the examiner’s discretion. The examiner must review the Veteran’s complete claims file and a copy of this remand. a) The examiner should identify all of the Veteran’s acquired psychiatric disorders that meet the American Psychiatric Association: Diagnostic and Statistical Manual of Mental Disorders (4th ed. 1994) (DSM-IV) criteria. b) The examiner should specifically indicate whether the Veteran meets the diagnostic criteria for PTSD. If the examiner does not find that the Veteran meets the DSM-IV’s criteria for PTSD, he or she should explain why in detail and explain why prior diagnoses are inappropriate. If the examiner diagnoses the Veteran with PTSD under DSM-IV, he or she should identify the elements supporting the diagnosis and should provide an opinion as to whether the Veteran’s PTSD is due to in-service stressors related to a fear of hostile military or terrorist activity. c) For each currently diagnosed acquired psychiatric disorder other than PTSD, the examiner should offer an opinion as to whether it is at least as likely as not (i.e., whether it is 50 percent or more probable) that any such disorder is related to the Veteran’s military service. The examiner may review and comment on the opinion given regarding depression in the August 2015 VA examination report. The examiner must provide the rationale for any proffered opinions. If the examiner is unable to provide any required opinion, he or she should explain why. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation as to why this is so. d) For each currently diagnosed acquired psychiatric disorder other than PTSD, the examiner should offer an opinion as to whether it is at least as likely as not (i.e., whether it is 50 percent or more probable) that any such disorder is caused by or aggravated by the Veteran’s service-connected disabilities. The examiner is advised that any aggravation need not be permanent in nature and is asked to specifically comment on the February 1, 2012 VA treatment record noting the Veteran’s hearing loss and depression. 4. Provide the Veteran with the proper notice of the elements necessary to substantiate claim for a TDIU and a VA Form 21-8940 with instructions that the form should be completed in order to assist with the adjudication of the TDIU claim. Complete any additional development indicated by the information on the returned form. 5. Ask the Veteran to provide IRS tax returns for the years he claims he has been unable to obtain and maintain substantially gainful employment due to service-connected disabilities (from 2006 to the present or for the years he claims TDIU) and a statement that the copy is an exact duplicate of the return filed with the IRS. Provide the Veteran with an IRS Form 4506-T “Request for Transcript of Tax Return” which may also be found at https://www.irs.gov/pub/irs-pdf/f4506t.pdf so that the Veteran may request tax returns and submit them to VA. Tell the Veteran that if he does not have copies of his tax returns for the requested years, he may use the IRS form cited to above. MARJORIE A. AUER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board John M. Middleton 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.