Citation Nr: 21024982 Decision Date: 04/27/21 Archive Date: 04/27/21 DOCKET NO. 17-53 506 DATE: April 27, 2021 REMANDED Entitlement to an initial compensable disability rating for lipomas (claimed as cysts on arms, stomach, back, and legs) is remanded. Service connection for bilateral hearing loss is remanded. Service connection for tinnitus is remanded. Service connection for any acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), depression, and anxiety, is remanded. REASONS FOR REMAND The Veteran served on active duty from June 1972 to May 1976. These matters come to the Board of Veterans’ Appeals (Board) on appeal from a June 2015 rating decision issued by the Department of Veterans’ Affairs (VA) Regional Office (RO) in Portland, Oregon. By way of background, the RO denied these claims in the June 2015 rating decision from which the Veteran timely appealed requesting a hearing before the Board. The hearing occurred in December 2020 and a transcript has been associated with the claims file and reviewed. The evidentiary record was left open following the hearing during which additional evidence was submitted by the Veteran’s representative and has since been reviewed. 1. Entitlement to an initial compensable disability rating for lipomas (claimed as cysts on arms, stomach, back, and legs) is remanded. The Veteran contends his lipomas have worsened entitling him to a compensable disability rating. The Board finds the evidence of record is insufficient to resolve his claim. The Veteran was last afforded a VA examination regarding his lipomas in June 2017. The Veteran testified that his symptoms have worsened since then. See December 2020 hearing transcript, p. 4-5. The Veteran testified that he has more lipomas over his body, some of which can be “extremely painful,” and had to have some removed. Id. Whenever the Veteran reports a worsening of symptoms that might result in a higher rating, the VA’s duty to assist requires that the Board remand for a new VA examination. See Snuffer v. Gover, 10 Vet. App. 400 (1997). Thus, the Veteran should be provided an opportunity to report for a contemporaneous VA examination to ascertain the current severity and manifestations of his lipomas. See Green v. Derwinski, 1 Vet. App. 121, 124 (1991). Consequently, this matter is remanded to afford the Veteran another VA examination. 2. Service connection for bilateral hearing loss is remanded. The Veteran contends that he has bilateral hearing loss that was caused by or incurred during service. The Board finds the evidence of record is insufficient to resolve his claim. In Hensley v. Brown, 5 Vet. App. 155, 164 (1993), the Court determined that a Veteran “may establish direct service connection for a hearing disability initially manifest several years after separation from service on the basis of evidence showing that the current hearing loss is causally related to injury or disease suffered in service.” The Court found that service connection may not be denied based solely on normal audiometric results upon separation from service. Id. at 160. The Veteran was afforded a VA examination in September 2013 to determine the nature and etiology of any hearing loss disability. The examiner opined that the Veteran had bilateral sensorineural hearing loss, which was not at least as likely as not caused by or incurred during service. The VA examiner, however, relied upon the Veteran’s normal audiogram results post-separation that did not show significant changes from his entrance audiogram without adequately addressing whether the Veteran’s contended in-service noise exposure is related to his current hearing loss disability. Further, the VA examiner failed to address the Veteran’s service treatment records (STRs) reflecting an ear infection in May 1975 with complaints of hearing loss. The Veteran also testified that he conducted boiler maintenance without ear protection during service and his “hearing was not great” following shifts in the boiler room describing that he was “hard pressed to hear anything for a while.” See December 2020 hearing transcript, p. 11-12. The Veteran also stated that he has not experienced noise exposure post separation. These contentions remain unaddressed by a VA examiner. Thus, remand is necessary for consideration of the Veteran’s specific medical history and military history. See Polovick v. Shinseki, 23 Vet. App. 48 (2009). Consequently, this matter is remanded to afford the Veteran another VA examination. 3. Service connection for tinnitus is remanded. The Veteran contends he has tinnitus that was caused by or incurred during service. The Board finds the evidence of record is insufficient to resolve his claim. The Veteran was afforded a VA examination in September 2013 wherein the examiner opined that the Veteran’s tinnitus was not at least as likely as not caused by or incurred during service. The examiner reasoned that the Veteran did not know the onset of his tinnitus and tinnitus is associated with hearing loss. The examiner further reasoned that because the Veteran’s STRs showed hearing loss occurred after separation, it was most likely secondary to his hearing loss post-service. The Veteran testified, however, that he has experienced ringing in his ears since service that has never gone away. He stated that he remembers his ears ringing during service. Thus, remand is necessary for consideration of the Veteran’s lay statements of symptoms and onset. See Miller v. Wilkie, 32 Vet. App. 249 (2020). In any case, in light of the September 2013 VA examiner’s opinion linking tinnitus to the Veteran’s hearing loss, the Board observes the issue is inextricably intertwined with the resolution of his hearing loss appeal. 4. Service connection for any acquired psychiatric disorder, to include PTSD, depression, and anxiety, is remanded. The Veteran contends that he has PTSD that was caused by or incurred during service. The Board finds the evidence of record is insufficient to resolve his claim. At the outset, the Board notes the Veteran’s treatment records contain reference to and treatment for depression and anxiety. In compliance with Clemons, the Board has recharacterized the Veteran service connection claim for PTSD to any acquired psychiatric disorder, to include PTSD, depression, and anxiety. Clemons v. Shinseki, 23 Vet. App. 1, 4-5 (2009). The Veteran was afforded a VA examination to determine the nature and etiology of his contended PTSD in August 2013 wherein the examiner opined that the Veteran has PTSD under the DSM-IV. 38 C.F.R. § 4.125(a), provides that, for VA purposes, all mental disorder diagnoses including PTSD must conform to the Fifth Edition of the American Psychiatric Association’s Diagnostic and Statistical Manual for Mental Disorders (DSM-5) unless the Veteran’s claim was initially certified for appeal to the Board before August 4, 2014, in which case the diagnosis of PTSD must conform to the DSM-IV. The Veteran’s claim was certified to the Board after August 4, 2014. Thus, remand is necessary for an additional VA examination to clarify whether the Veteran currently has, or had at any time during the pendency of this claim, any acquired psychiatric disorder under the DMS-V, to include PTSD, depression, and anxiety. See Bowling v. Principi, 15 Vet. App. 1, 12 (2001); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). Thus, this claim is remanded to afford the Veteran another VA examination. The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination before an appropriate examiner to determine the current severity of the Veteran’s lipomas. The entire claims file and this remand should be made available to the examiner. The examiner shall provide a full description of the Veteran’s disability and discuss all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. The examiner must attempt to elicit information regarding the severity, frequency, and duration of symptoms. To the extent possible, the examiner shall identify any functional, social, and occupational effects or impairments due to his lipomas. The examiner is directed to consider the Veteran’s lay statements of symptom worsening including an increase in the number of lipomas, experiencing pain, and having some lipomas removed due to “extreme pain.” 2. Schedule the Veteran for a VA examination before an appropriate examiner that is different from the 2013 examiner to determine the nature and etiology of any hearing loss and/or tinnitus disability and its relation, if any, to service. The entire claims file and this remand should be made available to the examiner. The examiner shall render an opinion, including rationale, addressing the following: (a.) Whether it is at least as likely as not (50 percent or greater probability) the Veteran has bilateral hearing loss and/or tinnitus; and The examiner is directed to address the Veteran’s treatment records reflecting bilateral hearing loss and tinnitus. (b.) If the Veteran has bilateral hearing loss and/or tinnitus, whether it is at least as likely as not (50 percent or greater probability) each condition is related to service, to include his contended noise exposure performing boiler maintenance without ear protection. The examiner should consider all medical and lay evidence of record, including the Veteran’s reports of noise exposure during service while maintaining boilers in the boiler room with “no hearing protection.” Regarding hearing loss, in so opining, the examiner is directed to address the Veteran’s STRs reflecting an ear infection in May 1975 with complaints of hearing loss as well as the Veteran’s lay statements of experiencing hearing loss immediately after performing boiler maintenance including that his “hearing was not great” following shifts in the boiler room describing that he was “hard pressed to hear anything for a while;” that he serviced boilers without ear protection; and his contended lack of noise exposure following separation. Regarding tinnitus, in so opining, the examiner is directed to address the Veteran’s statements of experiencing ringing in his ears which began during service while performing boiler maintenance and has continued since separation. 3. Schedule the Veteran for a VA examination before an appropriate examiner to determine the nature and etiology of any acquired psychiatric disorder and its relation, if any, to service. The entire claims file and this remand should be made available to the examiner. The examiner shall render an opinion, including rationale, addressing the following: (a.) Whether the Veteran has posttraumatic stress disorder (PTSD) or any other acquired psychiatric disorder in accordance with the DSM-V, to include depression and anxiety at any time during the pendency of the Veteran’s claim; In so opining, the examiner is directed to consider and address the Veteran’s lay statements of symptoms related to an acquired psychiatric disorder and the onset thereof. The examiner is also directed to address the Veteran’s treatment records reflecting depression and anxiety as well as the 2013 PTSD diagnosis under the DSM-IV. If the examiner finds that a diagnosis of PTSD is not appropriate, the examiner should give specific reasoning for that conclusion. If no disorder is currently found, the examiner must express whether any disorder existed earlier in the appeal period and the examiner should explain why the noted evidence does not establish a chronic diagnosis. (b.) If PTSD is diagnosed, determine whether it is at least as likely as not (50 percent or greater probability) that the identified service stressor incidents are adequate to support a diagnosis of PTSD and that the Veteran’s symptoms are related to the claimed stressors; and (c.) For any and all acquired psychiatric disorder(s), the examiner shall determine whether it is at least as likely as not (50 percent or greater probability) related to service. The examiner must provide a complete rationale for any opinion expressed, based on the examiner’s clinical and medical expertise; established medical principles; and references to the evidence of record, as appropriate. If any opinion cannot be expressed without resort to speculation, ensure that the examiner so indicates and discusses why an opinion is not possible, to include whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. 4. After the above development, and any other development deemed necessary, readjudicate the claims. Shereen M. Marcus Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A.C. Allen, 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.