Citation Nr: 21026618 Decision Date: 05/03/21 Archive Date: 05/03/21 DOCKET NO. 15-18 651A DATE: May 3, 2021 REMANDED Entitlement to service connection for an acquired psychiatric disability is remanded. Entitlement to service connection for bilateral hearing loss is remanded. REASONS FOR REMAND The Veteran served in the United States Marine Corps (USMC) from July 1976 to July 1980. This appeal comes to the Board of Veterans' Appeals (Board) from a Department of Veterans Affairs (VA) October 2014 rating decision of the Agency of Original Jurisdiction (AOJ). In September 2018 the Board remanded the case to the AOJ for additional development. Unfortunately, the Board finds following additional development on remand, the record requires another remand in order to afford the Veteran every consideration with respect to his claim. Further, the Board finds that there has not been substantial compliance with the remand directives on at least one of the issues on appeal. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Stegall v. West, 11 Vet. App. 268, 271 (1998). Specifically, aspects of the VA examinations obtained by the AOJ are conclusory and without adequate rationale in the case of the Veteran's claim for service connection for a psychiatric disability, or do not address relevant portions of the Veteran's service treatment records, in the case of the Veteran's claim for service connection for a bilateral hearing loss disability. 1. Entitlement to service connection for an acquired psychiatric disability is remanded. The Veteran claims his acquired psychiatric disability is caused by, or otherwise due to, his active duty military service, or alternatively secondary to a service-connected disability. In a March 2014 Statement in Support of Claim for Posttraumatic Stress Disorder (PTSD), the Veteran claimed that while he was deployed to Cuba from July 1979 to July 1980, he was "shot at day and night." The Veteran claimed that a fellow Marine died by suicide while deployed to Cuba, and another "died from alcohol poisoning". Additionally, while deployed to Hawaii, he was "shot at ... by local personel[sic] while standing post on guard duty" as well as "while climbing the mountains with others" in 1977 and 1978. The Board notes that the Veteran's service treatment records (STRs) indicate that from at least October 1979 to July 1980 his unit, if not the Veteran himself, was stationed in Camp Lejeune. In a November 2019 VA examination, the Veteran reported being "involved in an operation in Cuba," but did not elaborate on the details of his deployment. At the same VA examination, the Veteran reported being "shot at" and witnessing "the death by suicide of a Marine" while stationed in Hawaii. The Veteran also reported this history to an October 2020 private examiner. In September 2016, the Veteran was seen for a VA examination to determine the etiology of his psychiatric condition. As noted in the prior Board remand, although the September 2016 examiner extensively discussed a May 2015 private opinion providing a connection between the Veteran's depression and his service-connected tinnitus, the September 2016 examiner did not offer an opinion regarding any possible direct connection between the Veteran's depression and his active duty. Thus, further development in this regard was sought on remand. The Board notes that further that the examiner did not adequately address the impact, if any, of the Veteran's service-connected headache disability on his psychiatric condition. In November 2019, the Veteran underwent a VA examination to determine the etiology of his psychiatric disability. The examiner found that the Veteran's acquired psychiatric disability is "less likely than not ... incurred in or caused by" his active duty military service. The examiner noted that the Veteran's "reported symptoms do not meet the diagnostic criteria for PTSD." The examiner addressed the Veteran's claims of alleged "psychosis" during and after his service. The examiner concluded that because the Veteran "ingested LSD on a repeated basis while in the service and post discharge," any psychosis symptoms are attributable to that. There are otherwise "no reports or indications" that the Veteran "was a diagnosed psychosis within one year of discharge." The examiner noted that "there are no indications ... that the Veteran has service related mental health symptoms, tinnitus, or tension headaches." However, the Board finds that the conclusions reached by the examiner are inadequate as they conclusory, and not otherwise supported by adequate rationale. In October 2020 the Veteran submitted a mental health assessment performed by Dr. G., a non-VA psychologist who examined the Veteran. The Board notes that Dr. G.'s opinion relies solely on the reports of in-service events by the Veteran, without any corroborating evidence. Dr. G. noted that the Veteran's "depression more likely than not began in the service." Dr. G. did not expand on their finding, and did not address the fact that the Veteran did not seek mental health care while on active duty, or the fact that the Veteran denied any mental health issues during his separation examination. The Board also notes that Dr. G. does not explain how the Veteran's active duty service is as much a cause of the Veteran's current psychiatric condition as his well-documented post-service stressors, including but not limited to financial, family, employment, and social stressors as indicated by the VA examiners. Dr. G.'s opinion also noted that "it is more likely than not" that the Veteran's psychiatric disability "has been aggravated" by his service-connected headaches and "non-service connected back condition." Dr. G. cited to a study that showed how pain from chronic conditions "may accompany" the other symptoms of depression, but that "it is unclear, however, which patients with chronic pain are likely to develop depression." The Board finds that the language used in the supporting documentation by Dr. G. to link the Veteran's service-connected headache disability to his acquired psychiatric condition, in this case "may accompany" and pointing out that it is "unclear" which patients go on to develop psychiatric conditions, do not rise to the required level of certainty for adjudication purposes despite his more definitive conclusion. Additionally, Dr. G. was unable to show what the baseline for the Veteran's psychiatric condition was without his service-connected headache disability and how his headache disability worsened the psychiatric condition in relation to the baseline presumably in part because Dr. G. also found that the Veteran's psychiatric disability had its onset in service, a fact which is not established by the record. Finally, Dr. G.'s report also shows that the Veteran's non-service-connected disabilities play a role in his psychiatric condition, and Dr. G. failed to differentiate the effects of the Veteran's service-connected and non-service-connected disabilities. The Veteran's STRs are silent for treatment for, or complaints of, mental health conditions. At his July 1980 separation examination, the Veteran specifically denied any mental health concerns. However, the Veteran's personnel records are, noticeably, of poor quality. Furthermore, additional clarification is needed to determine whether the Veteran was stationed to Cuba in the timeframe he alleged, whether the Veteran's unit was "shot at" as claimed, and whether any soldiers in the Veteran's unit died by suicide during his period of active duty, as it would aid VA in determining if the Veteran experienced an in-service event, accident, injury, or condition that would precipitate his current acquired psychiatric disability. The Board finds that in light of the inconsistencies in the Veteran's claim, and the inadequacy of the November 2019 VA examination and Dr. G.'s October 2020 medical opinions, a further remand is necessary to allow the Veteran to develop his claim more fully. 2. Entitlement to service connection for bilateral hearing loss is remanded. The Veteran claims he has a bilateral hearing loss disability that is caused by, or otherwise due to, his active duty military service. In September 2014 the Veteran was seen for a VA examination to determine the etiology of his hearing loss. At the time, the examiner found that the Veteran had a hearing loss disability per 38 C.F.R. § 3.385. However, the examiner also noted that the Veteran's hearing loss was not due to his active duty service, on the grounds that the Veteran's audiometric examinations upon his enlistment and separation from the USMC showed no hearing loss, nor was there a threshold shift in his hearing. In November 2019, pursuant to the Board's September 2018 remand, the Veteran underwent another VA examination to determine the etiology of his hearing loss disability. The examiner was "unable to determine" the etiology of the Veteran's hearing loss disability on the basis that "only the enlistment examination is available for review." The Board recognizes that the copies of the Veteran's medical records are of poor quality, and some portions are difficult to make out. Nonetheless, the Veteran's separation audiometric examination is associated with the claims file, and therefore must be addressed when making a determination as to the etiology of the Veteran's hearing loss disability. The matters are REMANDED for the following action: 1. The AOJ shall obtain clarification from an appropriate governmental agency to determine the following, if possible: (a.) Whether the Veteran and his unit, the 3rd Battalion, 6th Marine Regiment, 2nd Marine Division, was deployed to Guantanamo Bay during any point from January 1, 1979 to July 31, 1980; and, (b.) Whether the Veteran's unit records show any incidents of being attacked by locals with firearms or otherwise; and, (c.) Whether the Veteran's unit records show any incidents of death by suicide of soldiers and alcohol poisoning during the Veteran's period of active duty service. The Veteran is invited to submit supporting evidence regarding the claimed in-service events, such as the names of other soldiers involved and the dates of the reported events. All documentation sent and received by the AOJ must be associated with the claims file. 2. Once the above has been completed, the AOJ shall obtain an addendum medical opinion from a qualified medical practitioner regarding the etiology of the Veteran's acquired psychiatric disability. The examiner must provide the following opinions: (a.) Whether it is as least as likely as not (50 percent chance or greater) that any current acquired psychiatric disability had its onset in, is caused by, or otherwise due to, the Veteran's active duty military service; and, (b.) Whether it is as least as likely as not (50 percent chance or greater) that the Veteran's acquired psychiatric disability is proximately due to, or aggravated by, his service-connected headache disability. If verified, the examiner must address the Veteran's claimed in-service stressors, to include but not limited to: reportedly being shot at while deployed to Cuba; reportedly being shot at while deployed to Hawaii; reportedly witnessing the aftermath of the death by suicide and/or alcohol poisoning of a fellow servicemember; possible exposure to contaminants while deployed to Camp Lejeune; the Veteran's service medical records including his separation examination; and relevant portions of the Veteran's post-service treatment records, to include the Veteran's treatment for post-service stressors. The examiner must provide a detailed rationale for all opinions provided. If the examiner is unable to provide the necessary opinions without resorting to mere speculation, the examiner must explain why that is the case. 3. The AOJ shall obtain an addendum medical opinion from a qualified medical practitioner regarding the Veteran's hearing loss disability. The examiner must provide the following opinions: (a.) Whether it is as least as likely as not (50 percent chance or greater) that any hearing loss disability is caused by his active duty military service. The examiner shall address the Veteran's lay statements regarding the onset of his hearing loss and in-service noise exposure, whether there was any permanent threshold shift while he was in service when comparing the Veteran's enlistment and separation audiology findings, the Veteran's history of post-service noise exposure, and the Veteran's post-service medical treatment records. (Continued on the next page) The examiner must provide a detailed rationale for all opinions provided. If the examiner is unable to provide the necessary opinions without resorting to mere speculation, the examiner must explain why that is the case. S. L. Kennedy Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Neville, 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.