Citation Nr: 22018003 Decision Date: 03/27/22 Archive Date: 03/27/22 DOCKET NO. 17-64 145 DATE: March 27, 2022 REMANDED Entitlement to a rating in excess of 30 percent from May 16, 2012 to February 27, 2018, and in excess of 50 percent as of February 28, 2018, for depressive neurosis is remanded. Entitlement to service connection for bilateral hearing loss is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from June 1953 to October 1954. In March 2019, the Board denied service connection for bilateral hearing loss, increased ratings for depressive neurosis, and TDIU. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). In August 2021, the Court issued a Memorandum Decision vacating and remanding the Board's entire decision. 1. Entitlement to a rating in excess of 30 percent from May 16, 2012 to February 27, 2018, and in excess of 50 percent as of February 28, 2018, for depressive neurosis is remanded. The Veteran was afforded a VA examination for his psychiatric claim in February 2018. See VA Mental Disorders examination, February 2018. At that time, he reported receiving treatment from a private psychiatrist prior to 2016. However, there is no indication that the Agency of Original Jurisdiction attempted to obtain these records or sought a release of information for these records from the Veteran. As such, and in compliance with the Court's August 2021 Memorandum Decision, this claim must be remanded to attempt to obtain these private treatment records. 38 C.F.R. § 3.159(c). Additionally, if private treatment records are obtained, a retrospective medical opinion addressing the Veteran's occupational and social functioning in light of these records must also be obtained. 2. Entitlement to service connection for bilateral hearing loss is remanded. The Veteran has been afforded two VA opinions regarding his bilateral hearing loss. A September 2012 examiner diagnosed the Veteran with hearing loss and provided a negative nexus opinion. See VA Hearing Loss and Tinnitus examination, September 2012. However, the examiner's opinion had some internal inconsistencies, including a statement that hearing loss at separation could not be ruled out, while at the same time concluding that the Veteran's current hearing was not service connected because retroactive effects of noise exposure were not expected. She did not indicate whether it was at least as likely as not that the Veteran had hearing loss at discharge that is related to his current hearing loss. A February 2018 examiner provided a similar opinion regarding retroactive effects of noise exposure without consideration of whether the Veteran may have had some hearing loss or hearing damage at separation. See VA addendum opinion, February 2018. The examiner also pointed to the possible effects of post-service occupational noise exposure without considering whether this was consistent with the Veteran's post-service employment as a bank manager. In light of the deficiencies in these examinations and in compliance with the Court's August 2021 Memorandum Decision, the hearing loss claim must be remanded for a new medical opinion. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). 3. Entitlement to a TDIU is remanded. The Veteran claims that he is unemployable at least in part due to his psychiatric disorder and hearing loss. As such, a decision on the remanded issues of increased ratings for depressive neurosis and service connection for bilateral hearing loss could significantly impact a decision on the issue of TDIU. The issues are inextricably intertwined and a remand of the TDIU claim is required. The matters are REMANDED for the following actions: 1. Ask the Veteran to complete a VA Form 21-4142 for his records from his private psychiatrist and any other relevant providers and/or facilities. Make two requests for the authorized records from all identified providers and/or facilities unless it is clear after the first request that a second request would be futile. 2. If additional psychiatric treatment records are obtained, schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected depressive neurosis. The examiner must review the entire claims file, including any newly associated private psychiatric treatment records. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran's disability under the rating criteria. The examiner must attempt to elicit information regarding the FSD - Frequency, Severity, and Duration - of the symptoms, to include any flare-ups, and the degree of functional loss during flare-ups. To the extent possible, the examiner should identify any symptoms and functional impairments due to the service-connected disability alone and discuss the effect of the disability on any occupational functioning and activities of daily living. The examiner should also provide an opinion on the Veteran's level of occupational and social impairment throughout the appeals period, based on review of the record and the newly obtained private treatment records. 3. Send the Veteran's claims file to an appropriate examiner to provide an opinion regarding the nature and etiology of his bilateral hearing loss. The Veteran may be called for examination if deemed necessary. The examiner should opine whether the Veteran's currently diagnosed bilateral hearing loss is at least as likely as not related to an in-service injury, event, or disease, to include noise exposure. The examiner must specifically address: (1) the relevance of the whispered voice test at separation, (2) the Veteran's subjective unawareness of hearing loss at the September 2012 VA examination despite an audiogram confirming such, and (3) whether he likely had any post-service occupational noise exposure as a bank manager. The term "at least as likely as not" does not mean "within the realm of medical possibility." Rather, it means that 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 the conclusion (e.g., etiology) as it is to find against the conclusion. 4. THE AOJ MUST REVIEW THE CLAIMS FILE AND ENSURE THAT THE FOREGOING DEVELOPMENT ACTION HAS BEEN COMPLETED IN FULL. IF ANY DEVELOPMENT IS INCOMPLETE, APPROPRIATE CORRECTIVE ACTION MUST BE IMPLEMENTED. IF ANY REPORT DOES NOT INCLUDE ADEQUATE RESPONSES TO THE SPECIFIC OPINIONS REQUESTED, IT MUST BE RETURNED TO THE PROVIDING EXAMINER FOR CORRECTIVE ACTION. YVETTE R. WHITE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Moore, 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.