Citation Nr: 21023923 Decision Date: 04/21/21 Archive Date: 04/21/21 DOCKET NO. 15-18 418A DATE: April 21, 2021 ORDER Entitlement to service connection for a psychiatric condition, other than post-traumatic stress disorder (PTSD) is denied. REMANDED Entitlement to service connection for bilateral hearing loss is remanded. Entitlement to service connection for a heart condition is remanded. Entitlement to service connection for hypertension is remanded. FINDING OF FACT The Veteran’s anxiety is already contemplated by his service-connected PTSD. CONCLUSION OF LAW The criteria for entitlement to service connection for a psychiatric condition, other than post-traumatic stress disorder, have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from February 1972 to March 1982. This matter comes before the Board of Veterans’ Appeals (Board) on appeal of the November 2011 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran appeared for a hearing before a Veterans Law Judge in October 2018. The Veterans Law Judge, who conducted the hearing, has since retired. The hearing transcript is associated with the claims file. The Veteran was provided notice of the Veterans Law Judge’s retirement in December 2020. The Veteran responded later that month by indicating that he does not wish to appear at another Board hearing. In June 2019, the Board remanded this matter for more development. The Board finds that there was not substantial compliance with its prior remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that a remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with its remand instructions, and imposes upon VA a concomitant duty to ensure compliance with the terms of the remand); see also D’Aries v. Peake, 22 Vet. App. 97, 105 (2008) (holding that only substantial rather than strict compliance with the Board’s remand directives is required under Stegall). Most recently, in September 2020, the Veteran was awarded service connection for his post-traumatic stress disorder (PTSD) with alcohol use disorder, with an evaluation of 70 percent, effective June 11, 2010. Neither the Veteran nor his representative has raised any issues with regard to the duty to notify or duty to assist as they pertain to the issues considered in this decision. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board.”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). The analysis in this decision focuses on the most relevant evidence and on what the evidence shows or does not show with respect to the issues denied in this decision. The Veteran should not assume that evidence that is not explicitly discussed in this decision has been overlooked. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (noting that the law requires only that reasons for rejecting evidence favorable to the claimant be addressed). Entitlement to service connection for a psychiatric condition, other than post-traumatic stress disorder (PTSD) The Veteran contends that he has anxiety due to service. In November 2020, the Veteran was awarded service connection for his post-traumatic stress disorder (PTSD) with alcohol use disorder, with an evaluation of 70 percent, effective June 11, 2010. In general, all disabilities, including those arising from a single disease entity, are rated separately, and all disability ratings are then combined in accordance with 38 C.F.R. § 4.25. Pyramiding, the evaluation of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when rating a Veteran’s service-connected disability. 38 C.F.R. § 4.14. It is possible for a Veteran to have separate and distinct manifestations from the same injury which would permit rating under several diagnostic codes, however, the critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the conditions is duplicative or overlapping with the symptomatology of the other condition. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). The Board finds that the Veteran’s anxiety was already contemplated by his service-connected PTSD. The Veteran’s treatment records demonstrate that he has received treatment for is psychiatric conditions throughout the appeal. In March 2020 the Veteran underwent a VA examination for his psychiatric conditions. The Veteran was diagnosed with PTSD and an alcohol use disorder. The Veteran reported that he drinks a pint of alcohol every other day. The examiner indicated that it is not possible to differentiate the Veteran’s symptoms that are attributable to each diagnosis. The examiner noted that the Veteran’s symptoms manifested as, depressed mood; anxiety; mild memory loss; chronic sleep impairment; disturbances of motivation and mood; inability to establish and maintain effective relationships; and occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgement, thinking or mood. The examiner opined that the Veteran’s claimed condition (alcohol use disorder) was at least as likely than not (50 percent or greater probability) incurred in or caused by the claimed in-service injury, event, or illness. As to the rationale, the examiner explained that, the “Veteran’s diagnosed PTSD resulted in his diagnosed Alcohol Use Disorder. The Alcohol Use Disorder resulted from the veteran’s efforts to control his symptoms of PTSD.” In the September 2020 rating decision, the AOJ explicitly stated that the Veteran’s service connection for post-traumatic stress disorder (PTSD) with alcohol use disorder, included anxiety. The AOJ assigned the Veteran with a 70 percent rating based on depressed mood; anxiety; mild memory loss; chronic sleep impairment; disturbances of motivation and mood; inability to establish and maintain effective relationships; and occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgement, thinking or mood. Thus, service connection is not warranted for anxiety alone, because it was already contemplated in the Veteran’s service-connected disability, and it would constitute pyramiding to award anxiety separately. Finally, the Veteran was not diagnosed with a separate anxiety disability. Because the preponderance of the evidence is against the claims, for entitlement to service connection for a psychiatric condition, other than PTSD and the Veteran’s anxiety is already contemplated in his PTSD disability, the benefit-of-the-doubt doctrine is not for application, and the claims must be denied. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND 1. Entitlement to service connection for bilateral hearing loss is remanded. The Veteran contends that he has bilateral hearing loss that is directly related to his active service. Specifically, the Veteran testified that as a medic he was required to observe soldiers on the firing range and was not provided hearing protection. The Veteran further testified that he noticed a reduction in his hearing during his active service. See October 2018 Board hearing transcript. The Veteran’s testimony is consistent with the circumstances of his service, to include his specialty as a medical specialist and is not contradicted by any evidence of record. See DD Form 214. Therefore, his testimony is considered credible. See 38 U.S.C. § 1154(a). The VA has the duty to make reasonable efforts to assist a claimant in securing evidence necessary to substantiate their claim for VA benefits. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c). The duty to assist was not met when the VA failed to obtain an adequate VA examination or medical opinion for the Veteran’s disabilities. The case law is clear that once the Secretary undertakes the effort to provide an examination when developing a service-connection claim, he must provide an adequate one. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). The Veteran was afforded a VA examination in August 2010. The VA examiner reviewed the record, interviewed the Veteran and conducted an in-person examination. The August 2010 VA examination report reflects that the Veteran has a bilateral hearing loss disability for VA purposes. See 38 C.F.R. § 3.385. The VA examiner opined that it was less likely than not that the Veteran’s bilateral hearing loss is caused by or a result of an event in military service. As to the rationale, the VA examiner stated that the Veteran’s hearing tested within normal limits at the time of his separation from active service. Additionally, the VA examiner stated that the Veteran was exposed to loud noise in his post-military occupation. In October 2018, the Veteran testified at a Board hearing. The Veteran testified that after service he had a hearing test every year on his birthday for his job. He stated he wore hearing protection, but every year his hearing has gotten worse. The Veteran testified, Always out there on the rifle range and always had to be a medic out there when they were on the range and all this fire from the 50 cal to the machine guns without hearing protection. You being out there with them artillery people and their shooting cannons all night, went five, five produce it with no hearing protection. In December 2019, VA secured an addendum opinion for the Veteran’s bilateral hearing loss condition. The examiner opined that the Veteran’s hearing loss was less likely than not related to military noise exposure. As to the rationale, the examiner explained that after a review of the records, the Veteran’s hearing sensitivity evaluations in January 1982 and February 1982 revealed that the Veteran’s hearing sensitivity was within normal limits in both ears. The threshold was no worse than 10 decibels, which is well within the range of normal. The examiner stated that, “No exams for hearing were found in the review of records until the 2010 exam. Records from the Dublin VA in 2012 reported tinnitus but denied significant hearing impairment.” However, a review of the 2010 VA examination report demonstrates that the Veteran has a bilateral hearing loss disability, significant enough for VA purposes. The examiner accepted the Veteran’s testimony as credible, but the examiner based his opinion on the one incident in 1979, where the Veteran reported a simulator blowing up near his right ear. However, during the Veteran’s October 2018 hearing the Veteran stated that he was around loud noises persistently, while in service. The examiner did not discuss the potential of a delayed onset, but based his opinion on the one incident, and not the cumulative effects of being exposed to loud noises. In addition, the Veteran testified that he did not receive treatment after service for his ears because he was prioritizing his other medical conditions, specifically his psychiatric conditions. In view of the foregoing, the Board finds that the VA audiology examiner’s opinion is inadequate for decision-making purposes. Therefore, the matter must be remanded so that an adequate addendum opinion may be obtained. See Barr v. Nicholson, 21 Vet. App. at 303, 311. In addition, with the assistance of the Veteran, the AOJ should secure the hearing tests from the Veteran’s employer, that were identified during the Board hearing in October 2018. 2. Entitlement to service connection for a heart condition is remanded. 3. Entitlement to service connection for hypertension is remanded. The Veteran contends that he has hypertension and a heart condition that are directly related to his active service or secondary to his acquired psychiatric disorder. Specifically, the Veteran testified that he had elevated blood pressure during his active service and that his drug and alcohol use due to his acquired psychiatric disorder contributed to his hypertension and heart condition. See October 2018 Board hearing transcript. The evidence of record reflects that the Veteran has a current diagnosis of hypertension for which he is prescribed medications. Additionally, the Veteran has a current diagnosis of abnormal electrocardiogram (ECG). See November 2012 VA treatment record. The Veteran’s service treatment records do not show a diagnosis of hypertension or include blood pressure readings consistent with hypertension or symptoms related to a heart condition. See 38 C.F.R. § 4.104, Diagnostic Code 7101 Note (1). However, the Veteran’s separation examination contains a blood pressure reading of 100/80. Such reading meets the criteria for prehypertension, which is defined as moderately increased blood pressure with systolic pressure of 120 to 139 or a diastolic pressure of 80 to 89. See Dorland’s Illustrated Medical Dictionary 1510 (32nd ed. 2012). During the October 2018 Board hearing the Veteran testified that his hypertension and heart condition are secondary to his acquired psychiatric disorder. In March 2020, the Veteran underwent a VA examination for his heart condition. The examiner noted that the Veteran was diagnosed with hypertensive heart disease in 2010, and atrial fibrillation in September 2018. The Veteran reported that he had high blood pressure so was referred to a cardiologist. The Veteran reported that he was diagnosed with an irregular heart rate and cardiomyopathy due to his uncontrolled blood pressure. The Veteran reported that his current symptoms include intermittent chest pain with exertion, that is sharp with a duration of a few minutes to an hour. He also has shortness of breath when he bends forward and while walking or working. The examiner opined that the claimed [heart] condition was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. The examiner did not provide a rationale, but instead appears to have copied part of the remand instructions, and a list of treatment records and indicated that the Veteran has a diagnosis of a heart condition, but does not explain why the heart condition is not related to service. The examiner also states, “there is no indication of a psychiatric condition during active duty, the veteran did not claim any problems during separation exam.” In addition, in March 2020, the Veteran underwent a VA examination for his hypertension. The examiner noted that the Veteran’s separation examination recorded a 100/80 BP, and the Veteran denied heart trouble or hypertension. During the March 2020 examination the Veteran denied chest pain or palpitations, and he stated he is compliant with his blood pressure medications. The examiner opined that the claimed (hypertension) condition was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. The examiner indicated that the Veteran was diagnosed with hypertension in 2010. The examiner then listed some medical records but, failed to provide a rationale explaining why the Veteran’s diagnosed hypertension was not related to service. The examiner did not reconcile the Veteran’s contention that he has been treated for hypertension since service and was treated with medication during service for this condition. The examiner opined that the Veteran’s hypertension was less likely than not (less than 50 percent probability) proximately due to or the result of any acquired psychiatric disorder. The examiner also opined that it was less likely as not (less than 50 percent probability) that any hypertension was aggravated beyond natural progression by any acquired psychiatric disorder. As to the rationale, the examiner explained there is “no indication of a psychiatric condition during active duty, the veteran did not claim any problems during separation exam.” The medical opinions for the claimed heart and hypertension conditions are inadequate because they do not provide a rationale that can be used for adjudication purposes. In addition, the Veteran became service connected for PTSD, effective June 11, 2010. On remand, the VA examiner’s must address whether the Veteran’s hypertension and heart condition are proximately due to, or aggravated beyond natural progression by, his acquired psychiatric disorders. The matter is REMANDED for the following action: 1. Contact the Veteran and request that he complete and submit to VA a signed authorization for disclosure of medical records to VA for each private medical health care provider from whom he has received treatment for the disabilities at issue on appeal. The Board is specifically interested in records from the Veteran’s employer that provided him testing for his hearing annually. After receiving any completed authorization form(s), undertake all appropriate efforts to attempt to obtain the identified records. All development efforts with respect to this directive should be associated with the claims file. The Veteran is encouraged to submit directly to VA any outstanding, relevant medical records in his possession. 2. After the above, forward the record and a copy of this remand to the examiner who provided the December 2019 VA audiology medical opinion or, if that examiner is not available, to a similarly qualified VA clinician for preparation of an addendum opinion. If the examiner determines that another in-person examination of the Veteran is required to provide the below-requested information, then such an examination should be scheduled. Following review of the record, the examiner should express an opinion as to: (a.) Whether it is at least as likely as not (50 percent probability or greater) that the Veteran’s current bilateral hearing loss is caused by or otherwise etiologically related to his active service, to include in-service noise exposure. (b.) The examiner must specifically note and address the Veteran’s contentions that: i. He had hearing loss during service and address any cumulative effects of being around artillery daily without hearing protection. ii. He wore protective gear during his civilian employment, but his hearing diminished annually. iii. He did not prioritize his hearing loss disability because of his PTSD disability (which is service connected). iv. While the Veteran contends that his hearing loss was noticeable during service, discuss any delayed onsets of the severity of the Veteran’s hearing loss. Rationale must be provided for the opinion proffered. In rendering the requested rationale, the examiner must acknowledge the Veteran’s competent and credible reports of in-service noise exposure and, explain why a significant threshold shift or hearing loss upon separation is required to determine that the Veteran’s bilateral hearing loss was incurred in active service or is otherwise etiologically related to his active service. In this regard, the examiner must note that, under applicable law, the absence of in-service evidence of a hearing loss disability, to include the absence of a significant in-service threshold shift, is not always fatal to a service connection claim. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Evidence of a current hearing disability and a medically sound basis for attributing that disability to service may serve as a basis for a grant of service connection for hearing loss where there is credible evidence of acoustic trauma due to significant noise exposure in service. See Hensley v. Brown, 5 Vet. App. 155, 159 (1993). Therefore, the fact that the Veteran’s separation examination does not display bilateral hearing loss does not necessarily render the opinion requested impossible to provide without resort to mere speculation. In this case, the Veteran is considered competent and credible in his contention that he was exposed to noise during his active service. The opinion provided therefore should reflect consideration of whether, given the in-service noise exposure and the Veteran’s specific descriptions of his service, the evidence establishes that it is at least as likely as not that the Veteran’s bilateral hearing loss was incurred in active service or is otherwise etiologically related to his active service. See 38 C.F.R. § 3.303(d). 3. Obtain an addendum opinion from an examiner other than the one that provided the March 2020 medical opinions regarding the Veteran’s hypertension and heart condition. Provide a copy of this remand and the record for the examiner to review. The examiner must specifically note on the report whether such files were reviewed in connection with this addendum opinion. No examination of the Veteran is necessary unless the examiner deems otherwise. The examiner should then address the following: (a.) For each heart condition, provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that the condition had its onset during the Veteran’s service or is otherwise etiologically related to the Veteran’s service, specifically to include the blood pressure reading in the prehypertension range contained in his service treatment records. Rationale must be provided for the opinion proffered (b.) If not, whether it is at least as likely as not (50 percent or greater probability) that any heart condition is proximately due to or the result of any acquired psychiatric disorder. Rationale must be provided for the opinion proffered. (c.) If not, whether it is at least as likely as not (50 percent or greater probability) that any heart condition was aggravated beyond natural progression by any acquired psychiatric disorder. Rationale must be provided for the opinion proffered. (d.) Whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s hypertension had its onset during his active service or is otherwise etiologically related to the Veteran’s service, specifically to include the blood pressure reading in the prehypertension range contained in his service treatment records. Rationale must be provided for the opinion proffered. (e.) If not, whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s hypertension is proximately due to or the result of any acquired psychiatric disorder. Rationale must be provided for the opinion proffered. (f.) If not, whether it is at least as likely as not (50 percent or greater probability) that any hypertension was aggravated beyond natural progression by any acquired psychiatric disorder. Rationale must be provided for the opinion proffered. 4. The AOJ must review this opinion to ensure it is adequate and complies with the Board’s specific remand directives herein. If deficient in any manner, corrective action must be taken at once. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that AOJ compliance with Board remand directives is not discretionary or optional). (Continued on the next page)   5. Then, the Veteran’s claim must be readjudicated. If the benefit sought on appeal is not granted to the Veteran’s satisfaction, the Veteran and his representative must be provided a Supplemental Statement of the Case and be given an adequate opportunity to respond. Thereafter, the case should be returned to the Board for further appellate action. MICHAEL MARTIN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Quist 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.