10-49 237
10-49 237
| Board of Vet. App. | Oct 31, 2017Background
- Veteran served on active duty from September 1977 to September 1981 and appealed RO rating decisions from 2009, 2011, and 2013.
- Claims on appeal: service connection for an acquired psychiatric disorder (depression/anxiety) including as secondary to service‑connected bilateral hearing loss and tinnitus; service connection for a sleep disorder (e.g., insomnia, narcolepsy) including as secondary to hearing loss/tinnitus; and entitlement to TDIU.
- The Veteran testified at an April 2016 Board hearing; the Board previously remanded the matter in July 2016 for development (VCAA notice, records, and exams).
- VA sent VCAA notice in December 2016 for the TDIU claim but the record lacks confirmation of the Veteran’s response and does not show that outstanding VA treatment records were obtained.
- No VA examinations have yet been completed for the psychiatric or sleep claims; the Board found further development (records retrieval and examinations) required before adjudication.
- The Board ordered steps to confirm the Veteran’s current address, obtain outstanding treatment records, schedule comprehensive VA exams addressing onset, etiology, and aggravation (including secondary causation by hearing loss/tinnitus), and to re‑adjudicate the claims; the matter was REMANDED (not finally decided).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Service connection — acquired psychiatric disorder (including secondary to hearing loss/tinnitus) | Veteran contends psychiatric disorder began in service and/or is secondary to service‑connected hearing loss/tinnitus | VA/RO: further records and medical opinion needed; development incomplete | Remanded for records retrieval and a VA psychiatric exam addressing direct and secondary causation and aggravation |
| Service connection — sleep disability (including secondary to hearing loss/tinnitus) | Veteran contends sleep disorder began in service and/or is secondary to hearing loss/tinnitus | VA/RO: further records and medical opinion needed; development incomplete | Remanded for records retrieval and a VA sleep exam addressing direct and secondary causation and aggravation |
| TDIU (individual unemployability) | Veteran asserts service‑connected conditions produce unemployability | VA/RO: current schedular criteria not met; resolution depends on outcomes of psychiatric/sleep claims and requires development | Remanded as inextricably intertwined with above claims; AOJ to re‑adjudicate and consider extraschedular referral if warranted |
| Compliance with prior remand orders | Veteran expects prior Board remand actions to be followed | VA/RO: prior remand tasks (records, exams) not completed per record | Remanded for full compliance with prior Board remand (Stegall compliance) and to complete ordered development |
Key Cases Cited
- Stegall v. West, 11 Vet. App. 268 (1998) (Board remand confers right to compliance with prior remand directives)
- Henderson v. West, 12 Vet. App. 11 (1998) (claims that are closely related may be inextricably intertwined for adjudication)
- Harris v. Derwinski, 1 Vet. App. 180 (1991) (procedural guidance on intertwined issues and development)
- Kutscherousky v. West, 12 Vet. App. 369 (1999) (appellant retains right to submit additional evidence while matter is remanded)