Citation Nr: 18154237 Decision Date: 11/29/18 Archive Date: 11/29/18 DOCKET NO. 10-32 191 DATE: November 29, 2018 REMANDED Entitlement to service connection for a left eye disability is remanded. Entitlement to service connection for a heart disability is remanded. Entitlement to an increased rating in excess of 10 percent for a right knee disability is remanded. Entitlement to an increased rating in excess of 10 percent for a right knee subluxation is remanded. Entitlement to an increased rating in excess of 20 percent until May 24, 2017 and excess of 40 percent thereafter for diabetes is remanded. REASONS FOR REMAND The Veteran served on active duty from December 1970 to December 1973. 1. Entitlement to service connection for a left eye disability is remanded. Upon review of the Veteran’s recent June 2016 and July 2017 VA examinations, the Board finds that the examinations are inadequate. The Veteran private medical records indicate that he has been diagnosed with a traumatic iritis of his left eye by Dr. Nhyen in April 2001 and has mild nonproliferative diabetic retinopathy by the same doctor in July 2015. The June 2016 VA examination did not contain a discussion of these diagnoses or include them as a diagnosed disability. Likewise, the October 2017 records based examination, did not contain any discussion or mention of nonproliferative diabetic retinopathy, and while this examiner noted the traumatic iris, the notation did not include any discussion. Only a cursory statement that this disability was not mentioned in the previous 2016 VA examination. The Court of Appeals for Veterans Claims (Court) has held that once VA undertakes the effort to provide an examination when developing a claim, even if not statutorily obligated to do so, VA must ensure that the examination provided is adequate. See Barr v. Nicholson, 21 Vet. App. 303, 311-12 (2007). Considering the foregoing, the Board finds that a new examination is warranted. 2. Entitlement to service connection for a heart disability is remanded. The Veteran was provided with a VA examination in July 2016 and subsequent records based examination on October 2017. Neither examination included any diagnosis of the heart. However, the Veteran’s private medical records include an October 2015 Radiology Report wherein he was diagnosed with “[p]rogressive coronary artery calcification” and “atherosclerotic calcification.” Additionally, in a March 2009 private treatment the Veteran was diagnosed with a tricuspid valve disorder and in September 2010 a private treatment note contains a diagnosis of arterial disease” This evidence was not addressed in the VA examination reports of July 2016 or July 2017, and directly contradicts the both reports findings of no heart disabilities. As noted above, the Court has held that VA undertakes the effort to provide an examination when developing a claim, even if not statutorily obligated to do so, VA must ensure that the examination provided is adequate. See Barr v. Nicholson, supra. Considering the foregoing, the Board finds that a new examination is warranted. 3. Entitlement to an increased rating for a right knee disability is remanded and entitlement to an increased rating in excess of 10 percent for a right knee subluxation is remanded. Unfortunately, the examination conducted to review the severity of the Veteran’s knee is inadequate. The Board explicitly directed the examiner to review the claims file, and the examiner notes that he did not accomplish this. He wrote “virtual va and/or vbms claim file was reviewed as far as possible as timed allowed due to scheduled time limit for exam.” Therefore, the Board finds that the Board’s remand directive was not fulfilled and where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance. See Stegall v. West, 11 Vet. App. 268 (1998). Considering the foregoing, the Board finds that a new examination is warranted. Entitlement to an increased rating in excess of 20 percent from and in excess of 40 percent from for diabetes is remanded. Unfortunately, the July 2016 VA examination provided to the Veteran determine the severity of his diabetes is inadequate. The Board notes that the examiner wrote initially that the evidence reviewed was limited to the Veteran Benefits Management System (VBMS) folder and Computerized Patient Record System (CPRS) file for the Veteran. He then later wrote “Vet was accompanied by his wife who […] brought multiple records fr/pcps [from primary care physicians] which were reviewed and returned to Vet’s wife.” The Board is left to speculate whether these records were new and never associated with the Veteran’s claims file or if they were merely duplicative. Importantly, there no evidence that VA attempted to associate these records reviewed by the VA examiner. As noted above, the Court has held that VA undertakes the effort to provide an examination when developing a claim, even if not statutorily obligated to do so, VA must ensure that the examination provided is adequate. See Barr v. Nicholson, supra. Additionally, the July 2016 examiner noted frequently in the examination that his information was provided “per wife.” It appears from the evidence in the claims file that the AOJ could not locate certain information in the claims file which the examiner had noted as “per wife.” The AOJ then requested the examiner to re-review the claims file. In November 2016, the examiner upon review admitted that he could not find certain information he included in his July 2016 examination report upon review of the claims file. Considering the foregoing, the Board finds that a new examination is warranted. The matters are REMANDED for the following action: 1. Contact the Veteran and request that he identify the names, addresses, and approximate dates of treatment for all VA and non-VA health care providers who have treated him for his disabilities. The Veteran should be requested to sign any necessary authorization for release of medical records to VA, and appropriate steps should be made to obtain any identified records. In particular, the AOJ should request the Veteran provide the medical records which were brought to his July 2016 diabetes examination. Regardless of the Veteran’s response, VA treatment records should be collected from the Houston, Texas VAMC and all associated outpatient center and clinics. In particular, the AOJ should retrieve VA treatment records from April 2017 to present should be collected. Any archived records should be retrieved from storage. If any requested records are not available, or the search for any such records otherwise yields negative results, that fact must clearly be documented in the claims file. If the records are unavailable, notify the Veteran in accordance with 38 C.F.R. § 3.159. 2. Thereafter provide the Veteran a VA examination to assess the nature and etiology of any eye disabilities. The claims file and a copy of this remand must be reviewed by the examiner in conjunction with the examination. Any indicated diagnostic tests and studies must be accomplished. Thereafter, the examiner should address the following: Identify all applicable eye disabilities present during the pendency of the appeal, to include glaucoma, cataracts, nasal pinguecula, presbyopia / refractive error, toxic optic neuropathy, traumatic iritis with angle recession and mild neuropathic retinopathy. In so opining, the examiner should reconcile his or her diagnoses with the diagnoses of record. If the examiner finds that any of the above diagnoses have not been present during the appeal period, a full explanation should be provided. (A). For each diagnosed eye disability, the examiner should state whether it is at least as likely as not (50 percent or greater degree of probability) that the diagnosed disability began in service, was caused by service, or is otherwise related to service. In so opining, the examiner should address the private treatment records and opinions, lay statements of record, the Veteran’s service treatment and personnel records, noting that the Veteran’s sunglasses broke and glass entered his eye, the June 2011 VA examiner’s notation that the Veteran had decreased left eye vision secondary to service, and the May 2009 treatment record noting that the glaucoma could be due to the Veteran’s history of left eye trauma. Additionally, the examiner’s attention is drawn to private treatment notes from Dr. Nhyen in April 2001 wherein he diagnosed mild nonproliferative diabetic retinopathy and in July 2015 wherein the same doctor again diagnosed mild nonproliferative diabetic retinopathy. (B). With regard to any refractive error, the examiner should state whether it is at least as likely as not (50 percent or greater degree of probability) that any increase in the Veteran’s refractive error was due to a superimposed disease or injury during service. In so opining, the examiner should address the private treatment records, lay statements of record, and the Veteran’s service treatment and personnel records noting that the Veteran’s sunglasses broke and glass entered his eye. The examiner should note that the Veteran’s November 1970 report of medical examination indicated the Veteran’s left eye 20/25 vision and his September 1973 report of medical examination indicated his left eye vision was 20/50. (C) For each diagnosed eye condition, the examiner should state whether it is at least as likely as not (50 percent or greater degree of probability) caused or aggravated (worsened beyond the natural progression of the disease) by his service-connected diabetes. In so opining, the examiner should address the November 2011 VA examination report noting that the Veteran’s cataract was related to his diabetes. The examiner must provide a complete rationale for all opinions offered in the examination report. 3. Thereafter provide the Veteran a VA examination to assess the nature and etiology of any heart disability. The claims file and a copy of this remand must be reviewed by the examiner in conjunction with the examination. Any indicated diagnostic tests and studies must be accomplished. Thereafter, the examiner should address the following: Identify all applicable heart diagnoses present during the pendency of the appeal, to include hypertensive heart disease, coronary artery disease, and/or PVD. The examiner is asked to specifically address whether the Veteran has ischemic heart disease. In so opining, the examiner should reconcile his or her diagnoses with the diagnoses of record. If the examiner finds that any of the above diagnoses have not been present during the appeal period, a full explanation should be provided. (A). For each diagnosed disability, the examiner should state whether it is at least as likely as not (50 percent or greater degree of probability) that the diagnosed disability began in service, was caused by service, or is otherwise etiologically related to active service, to include his in-service herbicide exposure. In so opining, the examiner should address an October 2015 Radiology Report wherein he was diagnosed with “[p]rogressive coronary artery calcification” and “atherosclerotic calcification.” As well as, a March 2009 private treatment the Veteran was diagnosed with a tricuspid valve disorder and a September 2010 private treatment note which diagnosed the Veteran with arterial disease” (B). For each diagnosed heart disability, the examiner should state whether it is at least as likely as not (50 percent or greater degree of probability) caused or aggravated (worsened beyond the natural progression of the disease) by his service-connected diabetes. The examiner must provide a complete rationale for all opinions offered in the examination report. 4. Provide the Veteran with an appropriate VA examination to determine the current nature and severity of his service-connected diabetes. The claims file and a copy of this remand must be made available to and reviewed by the examiner in conjunction with the examination. Any necessary diagnostic testing must be conducted. All pertinent symptomatology and findings must be reported in detail. The Veteran’s symptoms should be evaluated in accordance with VA rating criteria. Symptoms should be evaluated in accordance with the applicable VA rating criteria. A complete rationale must be provided for any opinion offered. 5. Schedule the Veteran for a VA examination to determine the current nature and severity of his service-connected right knee disability to include his subluxation. The claims file and a copy of this remand must be made available to and reviewed by the examiner in conjunction with the examination. Any necessary diagnostic testing, to include range of motion testing, must be conducted. If pain on motion is shown, the examiner must state at what degree the pain begins. All pertinent symptomatology and findings must be reported in detail. The Veteran’s symptoms should be evaluated in accordance with the applicable VA rating criteria. Symptoms should be evaluated in accordance with the applicable VA rating criteria. A complete rationale must be provided for any opinion offered. ROBERT C. SCHARNBERGER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Acosta