Citation Nr: 21025799 Decision Date: 04/29/21 Archive Date: 04/29/21 DOCKET NO. 13-09 521A DATE: April 29, 2021 REMANDED Entitlement to service connection for bilateral hearing loss is remanded. Entitlement to an initial rating higher than 30 percent prior to September 9, 2016, and a rating higher than 70 percent since September 9, 2016, for posttraumatic stress disorder is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disability, is remanded. REASONS FOR REMAND The Veteran served on active duty from February 1968 to February 1971 and from March 1991 to September 1992, with additional service in the Army National Guard. His awards and decorations include the Republic of Vietnam Gallantry Cross with Palm and Vietnam Service Medal with Two Bronze Stars. These matters are on appeal from an April 2012 rating decision. In June 2015, the Veteran testified before the undersigned Veterans Law Judge. A transcript of the proceeding is associated with the claims file. In a November 2019 decision, the Board denied the Veteran’s claims. The Veteran appealed the decision to the United States Court of Appeals for Veterans Claims (Court). In a December 2020 Order, the Court granted a December 2020 Joint Motion for Remand (JMR) of the Veteran and the Secretary of Veterans’ Affairs (the Parties) and vacated the November 2019 Board decision. The Court then remanded the case to the Board for readjudication and disposition consistent with the JMR. 1. Bilateral hearing loss In the December 2020 JMR the Parties found that the Board failed to ensure the duty to assist was satisfied when it relied on inadequate VA examinations. Specifically, the March 2012 and September 2016 VA examiners failed to provide essential rationale for their opinions by failing to address the Veteran’s annual threshold shifts during and after his second enlistment in the 1990s. The examiners also failed to address the Veteran’s reports of in-service exposure without adequate hearing protection. The examiners did not discuss the significance of the progressively worsening threshold shifts he suffered from during his second period of service and into his training with the Army National Guard or address these shifts showed progressive worsening hearing loss due to his second period of service. In light of the points raised by the Parties, on remand an adequate examination and opinion should be obtained. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). 2. Increased Rating Claim In the December 2020 JMR, the Parties also found the Board erred by failing to provided adequate reasons or bases for denying entitlement to higher ratings for PTSD, because the Board failed to address favorable evidence, including reports of suicidal ideation. Specifically, in the November 2019 decision the Board failed to address the March 2012 VA examiner’s finding of spatial disorientation as a symptom of PTSD and September 2012 report of suicidal ideation. However, as to this claim, the current record before the Board is incomplete. The VA treatment records include a November 2014 report shows that he preferred going to the Vet Center for mental health treatment. As the record before the Board is incomplete as to this claim, on remand, the AOJ must ensure that all evidence considered in adjudication of the Veteran’s appeal is associated with the electronic claims file. In addition, an addendum should be obtained to afford a VA examiner an opportunity to review the Vet Center records and provide a retrospective opinion regarding the nature and severity of the Veteran’s PTSD. 3. TDIU In the December 2020 JMR, the Parties also found that the Board erred by failing to consider whether the issue of entitlement to TDIU was reasonably raised before the Board since the record indicated that VA began development on the issue. Specifically, a September 2016 administrative decision found that the Veteran met the schedular requirements for TDIU entitlement and ordered development, including providing the Veteran with a VA Form 21-8940, Veterans Application for Increased Compensation Based on Unemployability. However, the Board did not address whether the issue was reasonably raised by the record. See Rice v. Shinseki, 22 Vet. App. 447 (2009). To this point, the Board acknowledges that a September 2016 VA PTSD examination shows that the Veteran continued to work fulltime during the summer as a marina attendant, but stated that would be his last summer due to his inability to tolerate interactions with visitors. However, the Veteran’s current employment status is unclear and the Veteran has not provided VA with a completed Form 21-8940. On remand, a new VA Form 21-8940 should be completed to fully develop his claim. Moreover, the Board finds that the Veteran’s claim of entitlement to a TDIU is inextricably intertwined with the increased rating claim that is being remanded, and thus the Board will defer consideration of the appeal with regard to entitlement to a TDIU. See Harris v. Derwinski, 2 Vet. App. 180, 183 (1991). The matters are REMANDED for the following actions: 1. Contact the Veteran and verify his employment history or send the Veteran a VA Form 21-8940, Veterans Application for Increased Compensation Based on Unemployability, to be fully completed and returned to VA. 2. Contact the Veteran and request that he either submit, or provide VA sufficient information and authorization to obtain Vet Center treatment records related to his PTSD. If no such records exist, the claims file should be annotated to reflect as such and the Veteran notified as such. In order to expedite this case, the Veteran’s representative (and/or the Veteran) is asked to obtain these records herself/himself and inform the RO/AMC that all appropriate records have been submitted in order to ensure that all pertinent records have been submitted in a highly timely manner so that the VA may adjudicate this case quickly. 3. Obtain an appropriate addendum from a VA examiner of appropriate expertise regarding the level of severity of the Veteran’s PTSD prior to and since September 9, 2016. The claims file, including a copy of the December 2020Joint Motion for Remand, must be made available to the examiner for review who should indicate that the claims file was reviewed. The examiner should provide a retrospective medical opinion on the Veteran’s PTSD prior to and since September 9, 2016. That is, with consideration of the evidence of record (to specifically include Vet Center records), including the Veteran’s lay statements, June 2015 testimony, and his history, comment on the historical severity of the Veteran’s PTSD prior to and since September 9, 2016. The addendum should include the complete rationale for all opinions expressed. 4. Schedule the Veteran for a VA examination with an audiologist regarding the nature and etiology of the Veteran’s hearing loss. The claims file, including a copy of the December 2020 Joint Motion for Remand, must be made available to the examiner for review who should indicate that the claims file was reviewed. The examiner should provide the following opinion(s): Is it at least as likely as not (50 percent probability or more) that the Veteran’s bilateral hearing loss disability had its onset in or is etiologically-related to noise exposure during the Veteran’s active duty service, or was manifested within the first post-service year? In rendering the above bilateral hearing loss opinion, the examiner is advised that the mere absence of in-service evidence of a hearing loss disability during service is not fatal to a service connection claim. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Evidence of a current hearing loss 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, post-service audiometric findings meeting the regulatory requirements for hearing loss disability for VA purposes, and a medically sound basis upon which to attribute the post-service findings to the injury in service. If the examiner relies on the IOM report regarding delayed onset of noise-induced hearing loss, both the positive and negative findings in the report must be discussed in the opinion. See McCray v. Wilkie, 31 Vet. App. 243 (2019). The examiner is asked to consider and discuss as necessary the pertinent evidence of record to include the Veteran’s lay statements, June 2015 testimony, and complaints concerning the onset of his bilateral hearing loss including those made to medical providers. The examiner is asked to discuss the onset and progression of the Veteran’s hearing loss and impact of the Veteran’s in-service noise exposure without hearing protection. The examiner is also asked to discuss the significance of the progressively worsening annual threshold shifts the Veteran experienced during and after his second period of active military service in the 1990s and into his training with the Army National Guard. In addition, the examiner is asked to state whether these changes showed progressive worsening hearing loss due to his second period of service. The Board, by this remand, makes no determination, expressed or implied, concerning the credibility of any statements on file. The report of examination should include the complete rationale for all opinions expressed. The phrase “at least as likely as not” does not mean within the realm of medical possibility, but rather the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of that conclusion as it is to find against it. KELLI A. KORDICH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Adams, 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.