Citation Nr: 18123948
Decision Date: 08/03/18	Archive Date: 08/03/18

DOCKET NO. 03-05 988
DATE:	August 3, 2018
ORDER
1. A 100 percent rating is granted for the Veteran’s depressive disorder (dysthymia) from February 12, 2016, subject to the regulations governing payment of monetary awards.  
2. A rating for depressive disorder in excess of 50 percent prior to February 12, 2016, is denied.
3. Revision on the basis of clear and unmistakable error (CUE) in the October 1993 rating decision that denied a compensable rating for a low back disability, is denied.
REMANDED
Entitlement to service connection for erectile dysfunction (ED) is remanded.
Entitlement to service connection for a tooth disability is remanded.
Entitlement to service connection for bilateral hearing loss is remanded.
Entitlement to service connection for tinnitus is remanded.
Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) on an extra-schedular basis prior to March 7, 2012, is remanded.
FINDINGS OF FACT
1. Prior to February 12, 2016, the Veteran’s depressive disorder was manifested by symptoms no more severe than productive of occupational and social impairment with reduced reliability and productivity, and occupational and social impairment with deficiencies in most areas was not shown; from that date symptoms of the psychiatric disability are reasonably shown to have been productive of total occupational and social impairment.
2. The October 1993 rating decision that denied a compensable rating for a low back disability considered the statutory or regulatory provisions extant at that time and did not contain an undebatable or egregious error of fact or law that was outcome determinative.
CONCLUSIONS OF LAW
1. The Veteran’s depressive disorder warrants “staged” initial ratings of 50 percent (but no higher) prior to February 12, 2016, and (an increased) 100 percent rating from February 12, 2016.  38 U.S.C. §§ 1155, 5110; 38 C.F.R. §§ 3.159, 4.3, 4.126, 4.130, Diagnostic Code (Code) 9433.
2. There was no CUE in the October 1993 rating decision that denied a compensable rating for a low back disability.  38 U.S.C.§ 5109A; 38 C.F.R. § 3.105.
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The appellant is a Veteran who served on active duty (AD) from December 1971 to June 1973 and from December 1990 to February 1992, with additional service in the National Guard, so presumably on active duty for training (ACDUTRA) and inactive duty training (INACDUTRA).
This case has a complex procedural history dating back several years.  It initially came before the Board of Veterans’ Appeals (Board) on appeal from a June 2002 decision which denied a compensable rating for the Veteran’s service-connected low back disability.
This appeal, however, also stems from a more recent March 2007 rating decision that denied an increase in a now higher 40 percent schedular rating for the Veteran’s service-connected low back disability.  In August 2012, the Board denied the claim for increase and inferred a claim for a TDIU as part and parcel of that claim.  See Rice v. Shinseki, 22 Vet. App. 447, 453 (2009).  The claim for a TDIU was remanded to the Agency of Original Jurisdiction (AOJ) for additional development.  The RO denied the derivative TDIU claim in September 2013 and December 2015 rating decisions, and in a December 2015 Supplemental Statement of the Case (SSOC).  In a May 2017 Board decision, the Board awarded a TDIU rating effective March 7, 2012, and remanded the matter of entitlement to a TDIU rating on an extra-schedular basis prior to March 7, 2012.  
The matters of service connection for ED, a fractured tooth, bilateral hearing loss, and tinnitus are before the Board on appeal from a December 2011 rating decision.  The matter of an increased rating for his depressive disorder is on appeal from an April 2015 rating decision which granted service connection for such disability, rated 50 percent effective March 7, 2012.  
The Board’s May 2017 decision/remand referred to “perfected” appeals concerning claims of entitlement to increased ratings for service-connected psychiatric and back disabilities.  Upon further review of the record, the Veteran did not appeal a September 2014 rating decision which continued the 40 percent rating for his low back disability.  Rather, in October 2014, he claimed CUE in an October 1993 rating decision (which denied a compensable rating for his service-connected back disability).  An April 2015 rating decision found that no revision of the low back rating was warranted; in a February 2016 VA Form 9 (formal appeal), the Veteran perfected an appeal of that rating decision.  The Board’s May 2017 remand noted that the Veteran requested a Board hearing on the matters of service connection for hearing loss and tinnitus, increases in his psychiatric and low back (now properly identified as a CUE claim) disability ratings, and a TDIU rating.  [The May 2017 Board decision also remanded the issues of service connection for ED and a fractured tooth, as discussed in further detail below.]  In a subsequent May 2017 statement, his attorney withdrew the hearing request.  
The Board further notes that the Veteran testified before two separate Veterans Law Judges (VLJs) with respect to his claim for an increase in his service-connected low back disability (in August 2005 and September 2008).  Therefore, and in accordance with Arneson v. Shinseki, 24 Vet. App. 379 (2011), the Board’s decision/remand in August 2012 was signed by three separate VLJs, i.e., by a panel of judges.  But only the September 2008 hearing before the undersigned VLJ addressed the matter of the Veteran’s employability (or rather, unemployability).  Accordingly, his appeal concerning entitlement to a TDIU is before the undersigned VLJ only.
Legal Criteria, Factual Background, and Analysis
The Board notes that it has reviewed all of the evidence in the record, with an emphasis on the evidence relevant to this appeal.  Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record.  Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000).  Hence, the Board will summarize the relevant evidence as deemed appropriate and the Board’s analysis will focus specifically on what the evidence shows, or fails to show, as to the claims.

Increased Rating for Depressive Disorder (Dysthymia)
Disability evaluations are determined by the application of a schedule of ratings, which is based on average impairment of earning capacity caused by the given disability.  Separate diagnostic codes identify the various disabilities.  38 U.S.C. § 1155; 38 C.F.R. Part 4. 
Where, as here, the appeal is from the initial rating assigned with an award of service connection, the severity of the disability during the entire period from the award of service connection to the present, and the possibility of “staged” ratings for distinct periods of time when varying degrees of disability were shown, must be considered.  See Fenderson v. West, 12 Vet. App. 119 (1999).  When a question arises as to which of two ratings applies under a particular code, the higher rating is assigned if the disability more closely approximates the criteria for the higher rating.  38 C.F.R. § 4.7.  After careful consideration of the evidence, any reasonable doubt remaining, including regarding degree of disability, is resolved in favor of the Veteran.  38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3.  
The Veteran’s depressive disorder has been assigned a 50 percent rating under the General Rating Formula for Mental Disorders (General Rating Formula).  A 50 percent rating is warranted where there is occupational and social impairment with reduced reliability and productivity due to such symptoms as flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short and long term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; and difficulty in establishing and maintaining effective work and social relationships.  
A 70 percent rating is warranted where there is occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a worklike setting); inability to establish and maintain effective relationships.  
A 100 percent rating is warranted for total occupational and social impairment due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (ADLs) (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name.  38 C.F.R. § 4.130, Code 9400.  
Ratings for psychiatric disability are assigned according to the manifestation of particular symptoms, but the use of the term “such as” in 38 C.F.R. § 4.130 demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating.  Mauerhan v. Principi, 16 Vet. App. 436 (2002).  Accordingly, the evidence considered in determining the level of impairment from an anxiety disorder under 38 C.F.R. § 4.130 is not restricted to the symptoms listed in Code 9400 (and the General Rating Formula for Mental Disorders).  Instead, VA must consider all symptoms of a claimant’s condition that affect occupational and social function.  When evaluating a mental disorder, the rating agency shall consider the frequency, severity, and duration of psychiatric symptoms, length of remissions, and the Veteran’s capacity for adjustment during periods of remission. 38 C.F.R. § 4.126(a).  When evaluating the level of disability from a mental disorder, the rating agency will consider the extent of social impairment, but shall not assign a rating solely on the basis of social impairment.  38 C.F.R. § 4.126(b).
On March 7, 2012, VA received the Veteran’s claim seeking service connection for depression.  [An April 2015 rating decision granted service connection for depressive disorder (dysthymia) rated 50 percent, effective March 7, 2012 (the date of the claim).]  
A December 2011 VA mental health record notes that the Veteran arrived promptly and was casually dressed and groomed.  He showed a “mildly depressed mood.”  He denied suicidal/homicidal ideation.  He reported living alone (although he maintained contact with his wife) and regular phone/in-person contact with others.  
A September 2013 VA mental health record notes the Veteran arrived early, was casually dressed and groomed, and was positive and upbeat.  He reported “some positive change in long-term mental and physical health issues.”  His speech was within normal limits and he denied suicidal/homicidal ideation.  He reported that his relationship was “ok at this time”; although he lived in the same home with his wife, they did not interact much.  He conducted outside chores in the morning and moved around his house during the hotter part of the day.
On April 2014 VA mental health examination, the Veteran reported that he lived with his wife in the same house, but that they did not talk much.  He maintained contact with his daughter two to four times per month, but did not have good relations with his other children.  He reported spending most of his time alone and denied having any hobbies.  He reported feeling worthless because of a decreased ability to perform house chores due to his back disability.  He endorsed the following symptoms: depressed mood nearly every day, diminished interest or pleasure in almost all activities, insomnia, fatigue or loss of energy nearly every day, and diminished ability to think or concentrate.  The examiner diagnosed persistent depressive disorder (dysthymia) and opined that the symptoms manifest in occupational and social impairment with occasional decrease in work efficiency and inability to perform occupational tasks.   
In August 2014, the Veteran’s son was murdered in prison.  See August 7, 2014 VA mental health record.  Over the next several months, he reported periodic worsening and improvement of his depression symptoms as he processed his son’s death.  Clinical records consistently showed that he was casually dressed and groomed, spoke within normal limits, and denied suicidal/homicidal ideation.  He generally reported depression and anxiety with low energy and decreased motivation.  See November 19, 2014 VA mental health record.  Although he experienced worsening sleep for several months following his son’s death, he reported a mild improvement in sleep in December 2014.  See December 1, 2014 VA mental health record.  In January 2015, the Veteran reported an improvement in his mood which he attributed to seeing his daughter over the holidays and “not thinking” about his son.  See January 9, 2015 VA mental health record.  
Over the next several months, the Veteran continued to report periodic worsening and improvement of his depressive symptoms.  Clinical records consistently showed he was casually dressed and groomed, spoke within normal limits, and denied suicidal/homicidal ideation.  In February 2015, he reported ongoing depressive symptoms but reported that they were improved as he turned his focus to the prosecution of his son’s alleged killer; his psychologist noted impression of moderate recurrent depressive disorder, persistent depressive disorder, and unspecified anxiety.  See February 10, 2015 mental health record.  In March 2015, the Veteran reported that he had been under “a lot of pressure” due to several illnesses of long-distance family members.  He reported talking to his pastor several times a week, though rarely about his depression.  
A May 2015 VA mental health record notes the Veteran’s report of nightmares, daytime intrusive thoughts, and an increase in his anxiety.  He was casually dressed and groomed; his speech was within normal limits; he denied suicidal/homicidal ideation.  He reported regular phone contact with family members and was anticipating several future visits with his daughter.  The impression was mild recurrent depressive disorder, persistent depressive disorder, and unspecified anxiety.
A June 2015 VA mental health record notes that the Veteran arrived promptly, was casually groomed and dressed, denied suicidal/homicidal ideation, and had speech within normal limits.  He reported decreased sleep quality and increased anxiety related to family stressors (such as his other son’s divorce).  Symptoms such as sadness, decreased motivation, poor sleep, boredom, irritability, and preoccupation with negative thoughts were discussed; the Veteran denied interest in antidepressant medication.  The examiner noted that he had “moderate depressive symptoms, but tends to view himself as powerless to change.”  
On November 2015 VA mental health examination, the Veteran was alert, oriented, adequately groomed, and appropriately dressed.  He related to the examiner with ease and candor after rapport was developed.  His speech was clear and eye contact was good; there were no bizarre or unusual gestures, nor was there evidence of hallucinations or delusions.  He reported that he lived alone but had social support from friends and his daughter.  He also reported that he gets irritated easily, prefers to be alone, and noted “issues with [his] family,” particularly his mother and sister.  He reported depressed mood, anxiety, sleep impairment, flattened affect, disturbances in motivation and mood, and difficulty in establishing and maintaining effective work and social relationships.  The examiner diagnosed moderate dysthymia that “seems to be worsened by his family stressors.”  She opined that the symptoms manifest in occupational and social impairment with reduced reliability and productivity.      
A December 11, 2015 VA psychotherapy record notes that the Veteran arrived promptly and was casually dressed and groomed.  His affect was mildly depressed.  He reported that he continued to feel irritable and preferred to be by himself.  He reported that the trial for the individual charged in his son’s death was postponed until February 2016.  
A December 30, 2015 Statement of the Case (SOC) continued the 50 percent rating assigned for the Veteran’s depressive disorder.   
A January 15, 2016 VA mental health record notes that the Veteran arrived promptly, was casually dressed and groomed, and spoke within normal limits.  His affect was mildly depressed.  He reported continued irritability and his preference to be alone.  Although he lived with his wife in the same home, he reported that their interactions were limited.  He reported attending church, but not socializing before or after service.  Although he stopped socializing at the car wash, he continued to eat and socialize at the truck stop.  
A February 12, 2016 VA mental health record notes that the Veteran arrived promptly, was casually dressed and groomed, and spoke within normal limits.  His affect was depressed and he was tearful at times.  He reported an increase in his mental health symptoms due to recent stressors, including “episodes of interpersonal conflict in the past few weeks” (including the upcoming trial and the arrest of a grandson).  He reported increased time alone, as well as anxiety, sadness, irritability, sleep disturbance, worry, rumination, social withdrawal, fatigue, and tearfulness.  The psychologist noted that his “prognosis for significant improvement to the extent that he could engage in consistent gainful employment is poor…In fact, it appears that [his impairment in interpersonal relationships] is worsening and his isolation is increasing.  It would appear that he could not tolerate the demands of regular contact with the public or coworkers.”  
On April 2016 VA mental health examination (conducted pursuant to development in a claim seeking service connection for a personality disorder), the examiner diagnosed moderate major depressive disorder, persistent depressive disorder, and unspecified anxiety disorder.  [The examiner noted the Veteran’s isolation from others and familial discord, but explained that the criteria for a personality disorder were not met.]  The examiner noted the following symptoms: depressed mood, anxiety, suspiciousness, panic attacks that occur weekly or less often, chronic sleep impairment, impairment of short- and long-term memory, flattened affect, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty in adapting to stressful circumstances, inability to establish and maintain effective relationships, and intermittent inability to perform activities of daily living, including maintenance of minimal personal hygiene.  “When asked about suicide, he said that he feels no one cares, so there is no reason to stay alive.”  The examiner opined that the Veteran’s symptoms manifest in total occupational and social impairment.  She explained that the symptoms of his service-connected depressive disorder and his non-service-connected anxiety disorder were co-morbid; she was unable to differentiate which symptoms were attributable to each diagnosis.         
VA mental health records since April 2016 continue to suggest a worsening of the Veteran’s depression symptoms.  Notably, a January 2017 VA mental health record notes the Veteran’s report of increased emotional distress, worsening sleep, and an increase in nightmares; a June 2017 VA mental health record notes his report of “worsening of sadness”; and, an August 2017 VA mental health record notes the psychologist’s impression of “some worsening of depression relative to past months.”  
Considering the symptoms that manifested throughout the period on appeal, the Board finds that since February 12, 2016, the Veteran’s psychiatric disability has presented a disability picture consistent with a characterization of total occupational and social impairment.  A February 12, 2016 VA mental health record notes the Veteran’s report of increased psychiatric symptomatology; the treating psychologist noted that the Veteran’s isolation was increasing and his impairment in interpersonal relationships was worsening.  On April 2016 VA mental health examination (two months later), the examiner diagnosed moderate major depressive disorder, persistent depressive disorder, and anxiety disorder.  She indicated that the Veteran’s mental diagnoses manifest in total occupational and social impairment and was unable to differentiate the symptoms attributable to each disorder.  Accordingly, the Board finds that a 100 percent schedular rating is warranted from February 12, 2016, the date of the first competent (clinical) evidence of worsening psychiatric symptoms following the December 2015 VA examination (which noted moderate dysthymia).  [Although the Veteran has not waived initial agency of original jurisdiction (AOJ) consideration of the clinical evidence of record (including the April 2016 VA examination report) since the December 2015 SOC, he is not prejudiced by the Board’s assignment of a 100 percent (total) schedular rating effective February 12, 2016, the earliest date following the December 30, 2015 SOC that the competent (clinical) evidence shows a worsening of his psychiatric disability.]
The analysis turns to whether a rating in excess of 50 percent is warranted for any period of time prior to February 12, 2016.  Considering the symptoms manifested during that period, the Veteran’s psychiatric disability presented a disability picture most consistent with a characterization of occupational and social impairment with reduced reliability and productivity, as contemplated by the 50 percent rating assigned.  VA mental health records consistently note that he was appropriately groomed and dressed, spoke within normal limits, and denied suicidal/homicidal ideation.  The evidence did not show impaired impulse control, spatial disorientation, neglect of personal hygiene, hallucinations, delusions, or other symptoms of such nature and severity.  Although he preferred to be alone and his relationship with his spouse was strained, he maintained social relations with some family members via telephone, he attended church service, he anticipated/enjoyed visits with his daughter, and socialized with others over meals at the truck stop.  His treating psychologists regularly characterized his depressive symptoms as mild or moderate.  In sum, the disability picture presented simply does not reflect occupational and social impairment in most areas (as required for the next higher (70 percent) rating).  Accordingly, a rating in excess of 50 percent is not warranted for the period prior to February 12, 2016 (the date his treating psychologist noted that his symptoms had worsened).  The Board has considered the benefit-of-the-doubt rule, applying it in the Veteran’s favor when such doubt regarding degree of disability presented.  See 38 C.F.R. § 4.3.  
Lastly, in light of the Board’s above award of a 100 percent for the Veteran’s depressive disorder (effective February 12, 2016), and the previously awarded TDIU rating for the same period, the Board has considered whether Special Monthly Compensation (SMC) at the housebound (HB) rate is warranted.  See Bradley v. Peake, 22 Vet. App. 280 (2008).  In Bradley, the U.S. Court of Appeals for Veterans Claims (CAVC) determined that a separate TDIU predicated on one disability (although perhaps not ratable at the schedular 100 percent level) when considered together with another disability separately rated at 60 percent or more could warrant SMC under 38 U.S.C. § 1114(s).  Thus, the CAVC reasoned, it might benefit the Veteran to retain or obtain the TDIU even where a 100 percent schedular rating also has been granted.  Bradley, at 293-94.  Consequently, VA must consider a TDIU claim despite the existence of a schedular total rating and award SMC under 38 U.S.C. § 1114(s) if VA finds the separate disability supports a TDIU independent of the other 100 percent disability rating. See id. 
A TDIU is warranted in addition to a schedular 100 percent evaluation where the TDIU had been granted for a disability other than the disability for which a 100 percent rating was in effect.  Under the facts presented in Bradley, there was no “duplicate counting of disabilities.”  Bradley, 22 Vet. App. at 293.
This case is distinguishable from Bradley, however, because the award of TDIU was based on the same disabilities as the 100 percent schedular rating.  The Board finds that SMC is not warranted as the TDIU was awarded due to the impact of several service-connected disabilities (including his depressive disorder and low back disability), not instead one or the other in isolation.  See May 2017 Board decision. 
CUE of an October 1993 rating decision that denied a compensable rating for a low back disability.  
The Veteran asserts there was CUE in the October 1993 rating decision that denied a compensable rating for his service-connected low back disability.  The Veteran specifically contends that “the residuals from his back condition which occurred while serving on active duty has not been properly adjudicated in its entirety regarding the residuals from this injury.”  In support of his argument, he notes that a June 1992 MRI (within one year of separation from service) noted a herniated disc.  In an April 2015 Notice of Disagreement (NOD), he stated, “It is my contention that the current severe back condition has been caused due to injuries suffered while serving on active duty.”     
The Court has established a three-prong test defining CUE, which is as follows: (1) either the correct facts, as they were known at the time, were not before the adjudicator or the statutory or regulatory provisions extant at the time were incorrectly applied; (2) the error must be undebatable and of the sort which, had it not been made, would have manifestly changed the outcome at the time it was made; and, (3) a determination that there was CUE must be based on the record and law that existed at the time of the adjudication in question.  See Damrel v. Brown, 6 Vet. App. 242, 245 (1994); Russell v. Principi, 3 Vet. App. 310, 314 (1992). 
“In order for there to be a valid claim of [CUE]... [t]he claimant, in short, must assert more than a disagreement as to how the facts were weighed or evaluated.” Id. See also Eddy v. Brown, 9 Vet. App. 52, 54 (1996).  An asserted failure to evaluate and interpret correctly the evidence is not CUE.  See Id.; Damrel v. Brown, 6 Vet. App. 242, 245-246 (1994).  CUE is a very specific and rare kind of error; it is the kind of error, of fact or of law, that when called to the attention of later reviewers compels the conclusion, to which reasonable minds could not differ, that the result would have been manifestly different but for the error.  Thus, even where the premise of error is accepted, if it is not absolutely clear that a different result would have ensued, the error complained of cannot be, ipso facto, [CUE].  Fugo v. Brown, 6 Vet. App. 40, 43-44 (1993).  The failure to fulfill the duty to assist also cannot constitute CUE.  Crippen v. Brown, 9 Vet. App. 412, 424 (1996); Caffrey v. Brown, 6 Vet. App. 377 (1994). 
To reiterate, the record in an appeal to be reviewed for CUE is the record and law that existed at the time of the prior rating decision in question, not additional evidence submitted or otherwise obtained after the fact.  A finding of CUE must be based solely on the evidence of record at the time of the decision in question. See Russell v. Principi, 3 Vet. App. 310, 313-14 (1992). 
Here, in the October 1993 rating decision at issue the RO denied a rating in excess of 0 percent for the Veteran’s low back strain.  An August 2000 Board decision denied a compensable rating for his low back strain; accordingly, the October 1993 rating decision is a final and binding determination based on the evidence then of record.  38 U.S.C. § 7105; 38 C.F.R. § 3.104 (a), 3.156, 3.160(d), 20.200, 20.302, 20.1103.  RO decisions that are final and binding will be accepted as correct in the absence of collateral attack showing the decision involved CUE.  See 38 U.S.C. § 5109A; 38 C.F.R. § 3.105(a). 
The Veteran’s argument in essence amounts to a disagreement with how the facts were weighed in October 1993.  As noted above, he has cited a June 1992 MRI (which showed a herniated disc) as support for his contention that he should have been assigned a higher rating at the time of the October 1993 rating decision.  Review of the October 1993 rating decision shows that, in fact, the RO considered the June 1992 MRI results.  However, an increased rating was denied as the evidence showed that his increased back symptomatology (including the herniated disc) was attributed to a postservice motor vehicle accident and aggravated by his postservice employment.  [Notably, the Board’s August 2000 decision weighed the same factual history and denied a compensable rating for his lower back disability.]  
To present a valid claim of CUE the claimant cannot simply request that the Board reweigh or reevaluate the evidence.  See Crippen, supra.  In order to show that CUE occurred, the evidence must show that the law was incorrectly applied to the facts as they were known at the time and that, had the error not occurred, the decision would have been manifestly different.  
In applying the test set forth in Russell, there is no indication the RO did not have the correct facts available when initially adjudicating the claim, nor that the RO applied the law incorrectly.  Accordingly, the Board concludes that there is no CUE in the October 1993 rating decision which denied an increased rating for his lower back disability.  
REASONS FOR REMAND
Entitlement to service connection for ED and a fractured tooth are remanded.
The Veteran filed a timely December 2012 Notice of Disagreement (NOD) initiating an appeal of a December 2011 rating decision denying service connection for ED and a tooth disability.  As noted in the Board’s May 2017 remand, an SOC concerning these additional claims had not been issued.  [The filing of an NOD signals the initiation of an appeal of a claim.  38 C.F.R. § 20.201.  When there has been adjudication by the AOJ and a timely NOD has been filed, an SOC addressing the issue must be furnished to the Veteran.  The appropriate disposition in this circumstance is to remand, not merely refer, the claim.  Manlincon v. West, 12 Vet. App. 238 (1999).]  The Board directed the AOJ to issue an SOC addressing the claims of entitlement to service connection for ED and a tooth disability.  Review of the claims file and the Veterans Appeals Control and Locator System (VACOLS) found that the AOJ has not issued such an SOC before returning the appeal to the Board, as required.  Accordingly, remand is necessary to furnish an SOC on these issues to the Veteran.  After receiving this required SOC, the Veteran also must be given time to complete the steps necessary to “perfect” his appeal of these claims by also filing a timely Substantive Appeal (VA Form 9 or equivalent statement).  38 C.F.R. §§ 20.200, 20.202, 20.300, 20.301, 20.302, 20.303, 20.304, 20.305, and 20.306.
Entitlement to service connection for bilateral hearing loss and tinnitus are remanded.
The medical opinions obtained regarding the Veteran’s diagnosed bilateral hearing loss and tinnitus are inadequate for rating purposes.  The Veteran was afforded a VA examination in November 2011; bilateral sensorineural hearing loss and tinnitus were diagnosed; the examiner provided negative nexus opinions, but failed to address the October 2011 lay statements from the Veteran, his former non-commissioned officer in charge (NCOIC), and a friend submitted in support of the claims.  At a July 2012 RO hearing, the Veteran testified that he was exposed to noise trauma (specifically 10 to 12 hours of engine noise per day in a metal building) in service without hearing protection.  The RO sought an addendum medical opinion which considered the lay evidence of record.  A February 2013 addendum opinion is of record; the examiner opined that the Veteran’s hearing loss was less likely than not related to service, but explained in her rationale that, “I am unable to determine the etiology of the veteran’s current hearing loss without resorting to speculation due to a lack of evidence following 1989.”  She provided an identical rationale regarding the Veteran’s tinnitus.  The Board finds these opinions inadequate for rating purposes as they lack adequate rationale and are apparently based on an incomplete factual record as they failed to address the lay statements of record or discuss any evidence after 1989.   An adequate examination which considers the entire factual record and provides adequate rationale for the opinions provided is necessary.
Entitlement to an extra-schedular TDIU rating (for the period prior to March 7, 2012), is remanded.
As detailed above, the claims seeking service connection for ED, a fractured tooth, bilateral hearing loss, and tinnitus must be remanded for additional development.  The Board finds that the issue of entitlement to an extra-schedular TDIU is inextricably intertwined with those other claims.  See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (holding that two or more claims are inextricably intertwined if resolution of one could have significant impact on the resolution of another).
The matters are REMANDED for the following action:
1.  Secure for the record updated (to the present, those not already associated with the record) complete clinical records of all VA evaluations since December 2017 (when the most recent VA treatment records in the record are dated).
2.  Issue an appropriate SOC addressing the claims of entitlement to service connection for ED and a tooth disability.  The Veteran and his attorney must be notified of the time limit for perfecting an appeal to the Board of these additional claims and afforded opportunity to do so.  These claims should only be returned to the Board for further appellate review if he timely perfects an appeal of these additional claims.
3.  Arrange for an audiological examination of the Veteran to ascertain the existence and likely etiology of his bilateral hearing loss and tinnitus.  Based on review of the entire record (to include this remand and any records received pursuant to the development ordered above) and examination/interview of the Veteran, the consulting audiologist should offer opinions that respond to the following [for purposes of this opinion the consulting provider should acknowledge that it is not in dispute that during service the Veteran was subjected to loud noises]: 
(a) Please indicate whether or not the Veteran has a hearing loss disability (in accordance with 38 C.F.R. § 3.385) in either/both ear(s) and/or tinnitus?
(b) Please identify the likely etiology for any hearing loss disability and tinnitus found.  Specifically, is it at least as likely as not (a 50 percent or better probability) that such disability is related to the Veteran’s service, to include as due to exposure to acoustic trauma therein? 
The examiner must explain the rationale for all opinions, citing to supporting factual data as appropriate.  The rationale for the opinions provided must specifically include comment on the lay statements of record (including the Veteran’s lay statements regarding exposure to loud engine noise in service, his former NCOIC’s report that the Veteran failed at times to respond to being called in service, and a friend’s lay statement regarding progressive worsening in hearing from 2007 to 2011).  
(Continued on the next page)
 
4.  Review the record, arrange for any further development (suggested by the development sought above), and readjudicate the claims (TDIU in light of the determinations on the other remanded claims, and including a determination regarding whether referral to the Director of Compensation on an extraschedular basis is warranted).
 
KEITH W. ALLEN
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	J. Dupont, Associate Counsel 

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