Citation Nr: 22014227 Decision Date: 03/11/22 Archive Date: 03/11/22 DOCKET NO. 17-42 478 DATE: March 11, 2022 ORDER Service connection for bilateral upper extremity peripheral neuropathy has been withdrawn. An initial rating of 40 percent, but no higher, for diabetes mellitus, type II, is granted. REMANDED Entitlement to service connection for hypertension, to include as due to exposure to herbicide agents and/or as due to the service-connected diabetes mellitus, Type II disability, is remanded. Entitlement to service connection for an acquired psychiatric disorder, to include depression and anxiety, is remanded. Entitlement to service connection for bilateral hearing loss is remanded. FINDINGS OF FACT 1. At the December 2020 Board hearing, prior to the promulgation of a decision in the appeal, the Veteran notified the undersigned Veterans Law Judge that a withdrawal of the issue of service connection for bilateral upper extremity peripheral neuropathy was requested. 2. The Veteran required one or more daily injection of insulin and had a medically restricted diet and regulated physical activities during the period on appeal. CONCLUSIONS OF LAW 1. The criteria for withdrawal of the issue of service connection for bilateral upper extremity peripheral neuropathy by the Veteran are met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 2. The criteria for a rating of 40 percent, but no higher, for diabetes mellitus type II are met. 38 U.S.C. §§ 1155; 5107(b); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.119, DC 7913. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1967 to February 1970. This matter is before the Board of Veterans' Appeals (Board) on appeal from an August 2013 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In December 2020, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. The transcript is of record. Furthermore, during the course of this appeal, a June 2017 rating decision granted service connection for tinnitus. As such, this matter is no longer on appeal due to the full grant of the benefits sought and it will not be discussed. See Grantham v. Brown, 114 F.3d 1156, 1158 (Fed. Cir. 1997). 1. Service connection for bilateral upper extremity peripheral neuropathy. The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105. Only an appellant, or an appellant's authorized representative, may withdraw an appeal. An appeal may be withdrawn as to any or all issues involved in the appeal. 38 C.F.R. § 19.55(a). "[I]t is well settled that withdrawal of a claim is only effective where the withdrawal is explicit, unambiguous, and done with a full understanding of the consequences of such action on the part of the claimant." DeLisio v. Shinseki, 25 Vet. App. 45, 57 (2011); Acree v. O'Rourke, 891 F.3d 1009, 1012-13 (Fed. Cir. 2018). In the present case, the Veteran, through his appearance at the December 2020 Board videoconference hearing, expressed his desire to withdraw his appeal of the issue of bilateral upper extremity peripheral neuropathy. See 12/15/2020 Hearing Transcript, at page 2. The Veteran affirmed the withdrawal of the issues and was informed that no decision would be made, the issue would be dismissed, and it would end the issue. Based on the undersigned's observations at the hearing, the Board finds that such withdrawal was explicit, unambiguous, and done with a full understanding of the consequences. Indeed, the Veteran and his authorized attorney representative showed no desire to continue the appeal for this issue. As such, the Board finds that there remains no allegations of errors of fact or law for appellate consideration since the withdrawal of the issue was an effective one. Accordingly, the Board does not have jurisdiction to review this issue and it is dismissed. 2. An initial rating of 40 percent, but no higher, for diabetes mellitus, type II. Increased Rating Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The percentages are based on the average impairment of earning capacity as a result of service-connected disability, and separate diagnostic codes identify the various disabilities and the criteria for specific ratings. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If two disability evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. All reasonable doubt as to the degree of disability will be resolved in favor of the claimant. 38 C.F.R. § 4.3. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, the Board must also consider staged ratings, which are appropriate in this case. Hart v. Mansfield, 21 Vet. App. 505, 50910 (2007). Hyphenated diagnostic codes are used when a rating under one diagnostic code requires the use of an additional diagnostic code to identify the basis for the evaluation assigned; the additional code is shown after the hyphen. The evaluation of the same disability under several diagnostic codes, known as pyramiding, must be avoided; however, separate ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not duplicative of or overlapping with the symptomatology of the other. Esteban v. Brown, 6 Vet. App. 259, 262 (1994); 38 C.F.R. § 4.14. In view of the number of atypical instances it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified. Findings sufficiently characteristic to identify the disease and the disability therefrom, and above all, coordination of rating with impairment of function will, however, be expected in all instances. 38 C.F.R. § 4.21. In evaluating the evidence, the Board has been charged with the duty to assess the credibility and weight given to evidence. Davidson v. Shinseki, 581 F. 3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). Indeed, the U.S. Court of Appeals for Veterans Claims (Court) has declared that in adjudicating a claim, the Board has the responsibility to do so. Bryan v. West, 13 Vet. App. 482, 488-89 (2000). In doing so, the Board is free to favor one medical opinion over another, provided it offers an adequate basis for doing so. Owens v. Brown, 7 Vet. App. 429, 433 (1995). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under the laws administered by VA. VA shall consider all information and medical and lay evidence of record. Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. The Veteran is competent to report symptoms observable by sense and contemporaneous medical diagnoses, but not competent to diagnose or assess the etiology of complex medical disorders. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The record showed that the August 2013 rating decision granted service connection for diabetes mellitus, type II and assigned an initial rating of 20 percent, effective April 6, 2012, in accordance with the General Rating Formula for the Endocrine System. 38 C.F.R. § 4.97, DC 7913. In July 2014, the Veteran filed a timely notice of disagreement with the assigned rating. Under Diagnostic Code 7913, a 20 percent rating is warranted for diabetes requiring insulin and a restricted diet, or oral hypoglycemic agents and a restricted diet. A 40 percent rating is warranted when diabetes requires insulin, restricted diet, and regulation of activities (avoidance of strenuous occupational and recreational activities). A 60 percent rating is warranted for diabetes requiring insulin, restricted diet, and regulation of activities with episodes of ketoacidosis or hypoglycemic reactions requiring one or two hospitalizations per year or twice a month visits to a diabetic care provider, plus complications that would not be compensable if separately evaluated. A 100 percent rating is warranted when diabetes requires more than one daily injection of insulin, restricted diet, and regulation of activities, with episodes of ketoacidosis or hypoglycemic reactions requiring at least three hospitalizations per year or weekly visits to a diabetic care provider, plus either progressive loss of weight and strength or complications that would be compensable if separately evaluated. The Veteran contends entitlement to a higher disability rating for his service-connected diabetes disability. Specifically, at the Board hearing, the Veteran's authorized attorney representative argued that the Veteran is entitled to a 40 percent disability rating since the record showed that the Veteran was prescribed a restricted diet and regulation of activities. Additionally, the Veteran testified that he uses insulin twice per day, has a restricted diet, walks a little bit because he gets tired quickly, and was told by his health care provider to exercise to what he can handle. See 12/15/2020 Hearing Transcript, at pages 3, 5-7. A review of the Veteran's outpatient treatment records shows that he has been continuously treated for diabetes mellitus throughout the appeal period. Treatment has included regulation of diet, regulation of activities, and insulin medication. A July 2013 VA diabetes examination documented that the Veteran followed a restricted diet, was prescribed insulin more than one injection per day, and was prescribed oral hypoglycemic agents. His activities were not regulated. The Veteran had not been hospitalized during the past year for ketoacidosis or hypoglycemic reactions, and he had diabetic care less than two times per month. Finally, the examiner opined that there was no functional impact. See 7/17/2013 VA Examination. The Veteran underwent another VA diabetes examination in September 2018. The examination showed that the Veteran was prescribed insulin more than one injection per day. He was prescribed oral hypoglycemic agents. His activities were regulated; the examiner noted that as activity restrictions are due to diabetes, the Veteran reported that he becomes too tired with activity such as yard work, and he is able to walk short distances. The Veteran had not been hospitalized during the past year for ketoacidosis or hypoglycemic reactions and he saw his diabetic care provider less than two times per month. Finally, as functional impact, the examiner opined that the Veteran is only able to do light yard work and walk short distances before becoming too tired. See 9/17/2018 C&P Examination. The record showed a private diabetes mellitus medical source statement from Dr. J.S., D.O. Dr. J.S. opined that that the Veteran required insulin, a restricted diet, and to avoid strenuous occupational and recreational activities. Dr. J.S. further stated that the Veteran may exercise but needs to monitor his blood sugar levels. See 12/15/2020 Medical Treatment Record Non-Government Facility, at page 1. After having carefully reviewed the evidence of record, the Board finds that the Veteran's symptoms of diabetes mellitus warrant a higher disability rating. In this regard, the competent and probative evidence of record is in approximate balance (or is nearly equal) in showing that the Veteran's diabetes mellitus is of such severity that it requires dietary restriction, regulation of activities, and insulin with more than one injection per day. 38 C.F.R. § 4.3. Therefore, an increased rating of 40 percent is granted. After a review of the record, the Board finds that a rating in excess of 40 percent is not warranted since there is no evidence, nor does the Veteran contends, that he was ever hospitalized for episodes of ketoacidosis or hypoglycemic reactions, nor was he required to visit his provider twice monthly for diabetic treatment. See 7/17/2013 VA Examination; see also 8/25/2014 Medical Treatment Record Government Facility; 9/17/2018; C&P Examination. Finally, the Board has considered the doctrine of reasonable doubt. However, as the most probative evidence of record is against a rating higher than 40 percent, the Board finds that this doctrine is not for application. As such, based on this competent and probative evidence, a higher rating in excess of 40 percent is not warranted. 38 U.S.C. § 5107(b). REASONS FOR REMAND Service Connection Service connection will be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Where a disease is first diagnosed after discharge, service connection will be granted when all the evidence, including that pertinent to service, establishes it was incurred in active service. 38 U.S.C. § 1113(b); 38 C.F.R. § 3.30(d). Service connection requires evidence showing: (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 condition incurred or aggravated by service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). VA is obliged to provide an examination or obtain a medical opinion in a claim of service connection when the record contains competent lay or medical evidence of (1) a current diagnosed disability or persistent or recurrent symptoms of disability; (2) evidence establishing that the veteran suffered an event, injury or disease in-service; and (3) an indication that the claimed disability or symptoms may be associated with the established event, injury, or disease in-service or with another service-connected disability; and (4) insufficient competent medical evidence for VA to make a decision on the claim. McLendon v. Nicholson, 20 Vet. App. 79, 81-83 (2006); 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4). Furthermore, the threshold for finding a link between current disability and service is low. McLendon, 20 Vet. App. at 83. The scope of a disability claim includes any disability that may reasonably be encompassed by the claimant's description of the claim, reported symptoms, and the other information of record. Clemons v. Shinseki, 23 Vet. App. 1, 4-6 (2009). The Veteran is competent to report symptoms and experiences observable by his senses. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); 38 C.F.R. § 3.159(a). In relevant part, 38 U.S.C. § 1154(a) requires that VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability benefits. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). 1. Service connection for hypertension, to include as due to exposure to herbicide agents and/or as due to the service-connected diabetes mellitus, Type II disability. After review of the record, a remand is required in this case to ensure that VA's responsibilities under the duty to assist are followed and that the Veteran is afforded every possible consideration. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. At the Board hearing, the Veteran's authorized attorney representative argued that the Veteran's hypertension is due to his service-connected diabetes mellitus disability. See 12/15/2020 Hearing Transcript, at page 4. Regulations provide that service connection is warranted for a disability which is aggravated by, proximately due to, or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Further, a disability which is aggravated by a service-connected disorder may be service connected to the degree that the aggravation is shown. Allen v. Brown, 7 Vet. App. 439, 449 (1995); 38 C.F.R. § 3.310(b). In order to establish entitlement to secondary service connection, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; (3) medical evidence establishing a nexus between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). As discussed above, service connection is currently in effect for diabetes mellitus. Post-service treatment records showed a diagnosis of hypertension. See 5/13/2013 Medical Treatment Record Non-Government Facility, at page 35. The Veteran has suggested that his current hypertension disability is due to his service-connected diabetes mellitus. The agency of original jurisdiction (AOJ) did not obtain a VA examination and/or opinion regarding whether the Veteran's hypertension is due to his service-connected diabetes mellitus. However, based on the evidence of record, the Board finds that a VA examination/medical opinion is required to determine the nature and etiology of the Veteran's hypertension. On remand, the AOJ should take appropriate action to schedule a VA hypertension examination that considers the entire record. Furthermore, the Board notes that the Veteran's service records confirm service in Vietnam during the Vietnam Era. See 3/3/1972 Certificate or Release or Discharge from Active Duty. Therefore, exposure to herbicide agents is presumed. 38 C.F.R. § 3.307(a)(6). In addition, the Board notes that the National Academy of Sciences (NAS) has found that there is "limited or suggestive evidence of an association between" hypertension and exposure to herbicide agents (such as Agent Orange) based on a recent statistical study. See Determinations Concerning Illnesses Discussed in National Academy of Sciences Report: Veterans and Agent Orange: Update 2012, 79 Fed. Reg. 20,308 (Apr. 11, 2014); see also 38 U.S.C. § 1116(b) (2012). The category "limited or suggestive evidence of an association" means that the "evidence suggests an association between exposure to herbicide agents and the outcome, but a firm conclusion is limited because chance, bias, and confounding could not be ruled out with confidence." Id. A more recent study by NAS released on November 15, 2018, concluded that after an examination of the literature that had been previously reviewed with the additional new evidence, the committee determined that there is sufficient evidence of an association between at least one of the chemicals of interest and hypertension. Nat'l Acad. of Sci., Inst. of Med., Veterans & Agent Orange: Update 2018, at 498, available at https://www.nap.edu/read/25137. The Board finds that the suggestive evidence of an association between hypertension and herbicide exposure is also sufficient to establish an "indication" that the current disability "may be related" to herbicide exposure during service, as contemplated by 38 U.S.C. § 5103A(d)(2)(B). The Court of Appeals for Veterans Claims has described the threshold of the statute as being low. McLendon v. Nicholson, 20 Vet. App. 79, at 83. Therefore, considering the above, the Board finds a remand is necessary. In sum, as mentioned above, the AOJ did not obtain a VA examination and/or opinion regarding whether the Veteran's hypertension is due to his active service, to include as due to his service-connected diabetes mellitus. However, such VA examination/medical opinion is required prior to adjudication on the merits; and, on remand, the AOJ is to take appropriate action to obtain the needed VA medical opinion. 2. Service connection for an acquired psychiatric disorder, to include depression and anxiety. After review of the record, a remand is required in this case to ensure that VA's responsibilities under the duty to assist are followed and that the Veteran is afforded every possible consideration. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. The Veteran contends entitlement to service connection for an acquired psychiatric disorder. Specifically, at the Board hearing, the Veteran testified that he has been taking psychiatric medication for 5 years. Additionally, he testified that if he stops taking his medication, he experiences "dark thoughts." See 12/15/2020 Hearing Transcript, at pages 8-9. Post-service treatment records showed that the Veteran was diagnosed with depression and anxiety. See 8/25/2014 Medical Treatment Record Government Facility, at pages 144 and 145. Service connection for depression and anxiety will be discussed under the umbrella of an acquired psychiatric disorder. Clemons, 23 Vet. App. at 4-6. Additionally, the Veteran's treatment records suggest that the onset of his psychiatric disorders was due to a stressful event experienced in Vietnam. Id. at page 65. The Veteran's authorized attorney representative also makes this argument. See 12/15/2020 Hearing Transcript, at page 4. As noted above, the Veteran has suggested that his current acquired psychiatric disorder is due to his service in Vietnam. The AOJ did not obtain a VA examination and/or opinion regarding whether the Veteran's depression and anxiety are due to his active service. However, based on the evidence of record, the Board finds that a VA examination/medical opinion is required to determine the nature and etiology of the Veteran's acquired psychiatric disorder. On remand, the AOJ should take appropriate action to schedule a VA psychiatric examination that considers the entire record. In sum, as mentioned above, the Veteran has not undergone a VA examination to determine the nature and etiology of any current mental health disorder and the record now reflects that VA's duty to assist in this regard has been triggered. As such, a VA examination/medical opinion is required prior to adjudication on the merits; and, on remand, the AOJ is to take appropriate action to obtain the needed VA medical opinion. 3. Service connection for bilateral hearing loss. After review of the record, another remand is required in this case to ensure that VA's responsibilities under the duty to assist are followed and that he is afforded every possible consideration. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. The Veteran contends service connection for a hearing loss disability due to military noise exposure to loud noises. Specifically, at the Board hearing, the Veteran testified that while he was in service, he was in a helicopter unit, it was noisy in the helicopter, and he was exposed to combat noise, such as rockets and mortars. Additionally, he testified that even though they wore headphones, they were not good. Further, he testified that he flew "just about every day" because they were doing accident investigations. Moreover, he testified that he is able to hear "super well" out of the right ear; however, he cannot hear out of his left ear. See 4/6/2012 VA 21-526; see also 12/15/2020 Hearing Transcript, at pages 7-8, and 10. Service treatment records showed that the Veteran's left ear hearing loss pre-existed his entry to service. In this regard, the Veteran's May 1967 enlistment examination showed a diagnosis of left ear hearing loss. See 9/27/2012 STR Medical, at page 5. As such, there is evidence of left ear hearing loss being identified at the entrance examination and, thus, the Veteran is not entitled to the presumption of soundness regarding his left ear hearing loss. 38 U.S.C. § 1111. When a defect, infirmity, or disorder is noted on the enlistment examination, the only benefits that can be awarded are for aggravation pursuant to 38 U.S.C. § 1153 and 38 C.F.R. § 3.306. See Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). A pre-existing injury or disease will be presumed to have been aggravated by active service where there is an increase in disability during such service, unless there is a specific finding that the increase in disability was due to the natural progress of the disease. 38 C.F.R. § 3.306(a). In such claims, the evidence of record must simply show that there was an increase in disability during service to trigger the presumption of aggravation; the burden then shifts to the government to show a lack of aggravation by establishing "that the increase in disability is due to the natural progress of the disease." See Wagner, 370 F.3d at 1096 (citing 38 U.S.C. § 1153). This requires the government to show by clear and unmistakable evidence that any increase in disability was due to the natural progress of the condition. See Cotant v. Principi, 17 Vet. App. 116, 130-32 (2003); see also 38 C.F.R. § 3.306(b). Post-service records showed that the Veteran was diagnosed with left ear sensorineural hearing loss. See 9/17/2018 C&P Examination. The record showed that the Veteran underwent a VA hearing loss examination in June 2013. The examiner stated that he could not provide a medical opinion regarding the etiology of the Veteran's hearing loss disability without resorting to speculation "[d]ue to inconsistent responses by the [V]eteran during the audiometric evaluation[,] the reported test results are not considered to be reliable and do not provide an accurate representation of current hearing sensitivity." Therefore, the examiner determined that there was no hearing loss and did not render a nexus opinion. See 5/31/2013 VA Examination. However, the Board finds this examination inadequate. Since that VA audiological examination, the record showed a diagnosis of left ear sensorineural hearing loss. Additionally, the examiner failed to address the Veteran's lay statements of military noise exposure in-service. The Veteran underwent an additional VA hearing loss examination in June 2017. The examination showed that the Veteran's hearing loss did not meet the criteria to be considered a disability for VA purposes for the right ear and provided no nexus opinion. Regarding the left ear, the Veteran was diagnosed with sensorineural hearing loss. At the conclusion of the examination, the examiner opined that his left hearing loss disability pre-existed service and it was less likely than not that the Veteran's left ear hearing loss was caused by service. As rationale, the examiner stated that the enlistment audiogram showed a moderate to moderately severe hearing loss, but the separation audiogram showed normal hearing and is not considered valid. Therefore, it could not be determined if the hearing loss in the left ear was aggravated beyond normal progression by service. See 6/17/2017 C&P Examination. However, the Board finds this opinion inadequate. The examiner failed to address the Veteran's lay statements of military noise exposure in-service. Additionally, the examiner did not show by clear and unmistakable evidence that any increase in disability was due to the natural progress of the condition. See Cotant v. Principi, 17 Vet. App. 116, 130-32 (2003); see also 38 C.F.R. § 3.306(b). The most recent VA hearing loss examination was afforded in September 2018. The examination showed that the Veteran's hearing loss did not meet the criteria to be considered a disability for VA purposes for the right ear. Regarding the left ear, the Veteran was diagnosed with sensorineural hearing loss. However, the examiner provided no nexus opinion. See 9/17/2018 C&P Examination. In sum, the AOJ is to obtain an addendum opinion that addresses if the Veteran's disabilities are related and/or aggravated by service. These matters are REMANDED for the following actions: 1. Update any outstanding VA treatment records. All requests and responses for the records must be documented. If any identified records cannot be obtained, notify the Veteran of the missing records, the efforts taken, and any further efforts that will be made by VA to obtain such evidence, and allow him an opportunity to provide the missing records. 2. After completion of step # 1, schedule the Veteran for a VA examination by an appropriate clinician to determine the nature and etiology the Veteran's hypertension disability. The clinician is to review the virtual file, including a copy of this Remand. After review of the claims file, the examiner is to specifically address: (a.) Whether it is at least as likely as not (probability of approximately 50 percent or more), that the Veteran's hypertension disability, in whole or part, had their onset in service. (b.) Whether it is at least as likely as not (probability of approximately 50 percent or more) that the Veteran's current hypertension disability was (1) proximately due to, OR (2) aggravated by the service-connected diabetes mellitus. If aggravation is found, please state, to the extent possible, the baseline level of disability prior to aggravation. **The examiner is asked to note, as appropriate, evidence of record to support his/her conclusions, such as references from this Veteran's relevant medical history and/or medical literature. In doing so, please address the reasonable raised theory by the record that his hypertension disability is due to in-service exposure to herbicide agents. The examiner is asked to address the significance of the NAS 2018 publication "Veterans & Agent Orange: Update 2018," on whether the Veteran's hypertension was caused by his presumed exposure to herbicide agents, such as Agent Orange.** A comprehensive rationale for all opinions is to be provided and must not be based on the lack of an in-service record of the claimed disability. All pertinent evidence, including both lay and medical evidence, should be considered. If an opinion cannot be given without resorting to speculation, the examiner should explain why and state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), the record (additional facts are required), or the examiner (does not have the knowledge or training). 3. After completion of step # 1, schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any currently mental health disorder. The clinician is to review the virtual file, including a copy of this Remand. The examiner is to identify any current psychiatric disorders, to include depression, anxiety, or any other psychiatric disorder since the period on appeal (shortly before and/or since April 3, 2013). The examiner must make clear whether the Veteran has or has not had any acquired psychiatric disorder during the period on appeal (since 2013). Additionally, if the examiner disagrees with any diagnosis or lack thereof during the period on appeal, the examiner must explain why. After review of the claims file, the examiner is to specifically address: (a.) Compile a list of all psychiatric disorders. (b.) For EACH psychiatric disorder identified on the current examination, state whether it is at least as likely as not (probability of approximately 50 percent or more), that any of the Veteran's current psychiatric disorders, in whole or part, had their onset in service. A comprehensive rationale for all opinions is to be provided and must not be based on the lack of an in-service record of the claimed disability. All pertinent evidence, including both lay and medical evidence, should be considered. If an opinion cannot be given without resorting to speculation, the examiner should explain why and state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), the record (additional facts are required), or the examiner (does not have the knowledge or training). 4. After completion of step # 1, return the claims file to the clinician who performed the June 2017 VA hearing loss examination and rendered the opinion regarding the Veteran's hearing loss disability. A copy of this Remand request should also be provided. After a review of the claims file and his previous opinion, the examiner must address: (a.) Is it at least as likely as not (probability of approximately 50 percent or more) that the Veteran's left hearing loss noted upon entrance increased in disability during his active service? In forming an opinion consider and reference the Veteran's STRs and statements (see, e.g., 9/27/2012 STR Medical; 4/6/2012 VA 21-526; 12/15/2020 Hearing Transcript, at pages 7-8, and 10). (b.) If so, was the increase in severity clearly and unmistakably (i.e., undebatable) due to the natural progress of the disease? Note: In addressing subpart (b), the examiner is required to reference affirmative evidence demonstrating that there was no aggravation, and this burden cannot be met by finding that the record contains insufficient evidence of aggravation. **The examiner must provide specific evidence of record to support his conclusions, such as references from this Veteran's relevant medical history and/or medical literature. Additionally, please address the Veteran's contentions that his left ear disability is due to military noise exposure to loud noises. Specifically, at the Board hearing, the Veteran testified that while he was in service, he was in a helicopter unit, it was noisy in the helicopter, and he was exposed to combat noise, such as rockets and mortars. Additionally, he testified that even though they wore headphones, they were not good. Further, he testified that he flew "just about every day" because they were doing accident investigations. Moreover, he testified that he is able to hear "super well" out of the right ear; however, he cannot hear out of his left ear. See 4/6/2012 VA 21-526; see also 12/15/2020 Hearing Transcript, at pages 7-8, and 10.** If the June 2017 examiner is no longer available, then the claims file and the June 2017 examination report and opinion should be forwarded to another examiner of at least equal qualifications to obtain the requested opinion. A new physical examination is not required unless deemed necessary by the clinician. A comprehensive rationale for all opinions is to be provided and must not be based on the lack of an in-service record of the claimed disability. All pertinent evidence, including both lay and medical, should be considered. If medical literature is reference, please provide a copy of it or a full citation that allows general access. If an opinion cannot be given without resorting to speculation, the examiner should explain why and state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), the record (additional facts are required), or the examiner (does not have the knowledge or training). Paul Sorisio Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J.F., 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.