Citation Nr: 19155167 Decision Date: 07/17/19 Archive Date: 07/17/19 DOCKET NO. 13-18 094 DATE: July 17, 2019 REMANDED The claim of entitlement to service connection for bilateral hearing loss is remanded. The claim of entitlement to service connection for hypertension, claimed as secondary to service-connected diabetes mellitus type 2, is remanded. The claim of entitlement to service connection for an eye disability, claimed as secondary to service-connected diabetes mellitus type 2, is remanded. The claim of entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disability(ies) is remanded. REASONS FOR REMAND The Veteran served on active duty from October 1965 to October 1975. This appeal to the Board of Veterans’ Appeals (Board) arose from two rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO). In a September 2011 rating decision, the RO, inter alia, denied service connection for bilateral hearing loss, GERD (claimed as acid reflux), hypertension and an eye disability. In December 2011, the Veteran filed a notice of disagreement (NOD) with the denial of all the service connection claims. In June 2013, the RO issued a statement of the case (SOC), and later that month, the Veteran filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans’ Appeals). In June 2013 rating decision, the RO, inter alia, denied claims for a rating in excess of 70 percent for PTSD and for a TDIU. In July 2013, the Veteran filed an NOD with respect to both denials. In November 2015, the RO issued an SOC, and in In December 2015, the Veteran filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans’ Appeals). In April 2016, the Veteran and his spouse testified during a Board video-conference hearing before the undersigned Veterans Law Judge (VLJ); a transcript of that hearing is of record. In June 2016, the Board dismissed the claims for service connection for GERD and for an increased rating for PTSD, and remanded the remaining matters on appeal (listed above) to the agency of original jurisdiction (AOJ) for further development. Unfortunately, the Board finds that further AOJ action on the remaining claims on appeal is warranted, even though such will, regrettably, further delay an appellate decision on these matters. A remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with the remand instructions, and imposes upon VA a concomitant duty to ensure compliance with the terms of the remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998). In January 2019, the Board remanded the claim for bilateral hearing loss to obtain VA treatment records, to specifically include the April 2016 VA audiological treatment record. Regarding the claims for hypertension and an eye disability, the AOJ was to obtain addendum opinions as to whether the Veteran’s hypertension or any diagnosed eye disability was caused or aggravated beyond the normal progression by service-connected diabetes mellitus type 2. Each opinion was to be accompanied by complete, clearly-stated rationale. As regards VA treatment records, all records from the James J. Howard Community Based Outpatient Clinic (CBOC) were obtained. The April 2016 audiologic treatment record was also obtained. However, the April 2016 audiologic record shows that an audiogram was conducted and notes to “please see ‘audiogram display’ under Tools.” The same is true of a September 2018 audiologic treatment record. No audiograms from any VA audiologic treatment are of record. Thus, it appears there are still outstanding, potentially relevant VA treatment records. As regards an eye disability, in April 2019 (following certification of this appeal to the Board), a VA optometrist opined that “The Veteran does not have diabetic retinopathy. There is no diagnosed eye conditions secondary to or aggravated beyond their normal progression by the SC diabetes.” The optometrist offered no rationale to support that opinion as to secondary service connection. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008) (stating that a medical examination report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two). As regards hypertension, in December 2018, a VA physician opined that it was not at least as likely as not that the Veteran’s hypertension was caused by or aggravated by service-connected diabetes mellitus type 2. The examiner stated “[i]n this Veteran, diabetes did not cause his hypertension. In spite of the expected natural progression of hypertension, the Veteran’s blood pressures remained stable and well controlled. Thus, in this Veteran, there is no evidence whatsoever for aggravation of hypertension.” While the physician offered a rationale as to why hypertension was not aggravated by service-connected diabetes mellitus type 2, the physician did not offer a rational as to why diabetes did not cause hypertension. See Nieves-Rodriguez, supra. Under these circumstances, the Board concludes that substantial compliance with the June 2016 remand directives for the noted claims has not been achieved. See D’Aries v. Peake, 22 Vet. App. 97, 105-06 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). Accordingly, further remand of this obtain all outstanding VA treatment records (to specifically include the April 2016 and September 2018 audiograms) and the previously requested opinions as to hypertension and an eye disability is necessary. See Stegall, supra. The Board points out that, as any decision with respect to the claims for service connection may affect the Veteran’s claim for a TDIU, this claim is inextricably intertwined with the other claims on appeal. See Parker v. Brown, 7 Vet. App. 116 (1994); Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (two issues are “inextricably intertwined” when they are so closely tied together that a final Board decision cannot be rendered unless both are adjudicated). As the claims should be considered together, it follows that, any Board action on the TDIU claim, at this juncture, would be premature. Hence, this matter is being remanded, as well. Also, while these matters are on remand, to ensure that all due process requirements are met, and the record is complete, the AOJ should give the appellant another opportunity to provide additional information and/or evidence pertinent to any remaining claim(s) on appeal (particularly as regards any private (non-VA) treatment and/or employment), explaining that he has a full one-year period for response. See 38 U.S.C. § 5103(b)(1); but see also 38 U.S.C § 5103(b)(3) (clarifying that VA may decide a claim before the expiration of the one-year notice period). Thereafter, the AOJ should attempt to obtain any additional evidence for which the appellant provides sufficient information, and, if needed, authorization, following the current procedures prescribed in 38 C.F.R. § 3.159. The actions identified herein are consistent with the duties imposed by the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C. §§ 5103, 5103A; 38 C.F.R. § 3.156. However, identification of specific actions requested on remand does not relieve the AOJ of the responsibility to ensure full compliance with the VCAA and its implementing regulations. Hence, in addition to the actions requested above, the AOJ should also undertake any other development and/or notification action deemed warranted by the VCAA prior to adjudicating the claims on appeal. The matters are hereby REMANDED for the following action: 1. Obtain from the James J. Howard CBOC the April 2016 and September 2018 audiograms, which are discussed in those specific treatment records, as well as any updated records of VA evaluation and/or treatment. Follow the procedures set forth in 38 C.F.R. § 3.159(c) regarding requesting records from Federal facilities. All records and/or responses received should be associated with the electronic claims file. 2. Furnish to Veteran and his agent a letter requesting that the Veteran provide information concerning, and, if necessary, authorization to enable VA to obtain, any additional evidence pertinent to any remaining claim(s) on appeal that is not currently of record. Specifically request that the Veteran furnish, or furnish appropriate authorization to obtain, any pertinent, outstanding private (non-VA) records and/or employment records. Clearly explain to the Veteran that he has a full one-year period to respond (although VA may decide the matters within the one-year period). 3. After all records and/or responses received from each contacted entity have been associated with the claims file or a reasonable time for the Veteran’s response has expired, arrange to obtain from author of the April 2019 opinion an addendum opinion. If that individual is no longer employed by VA or is otherwise unavailable, document that fact in the record, and arrange to obtain an addendum opinion from an appropriate physician based on claims file review (if possible). Only arrange for the Veteran to undergo further examination, by an appropriate physician, if one is deemed necessary in the judgment of the individual designated to provide the addendum opinion. The contents of the entire, electronic claims file, to include a complete copy of this REMAND, must be made available to the designated individual, and the addendum opinion/examination report should include discussion of the Veteran’s documented history and lay assertions. For each diagnosed eye disability (currently present, or present at any point pertinent to each current claim, even if now resolved or asymptomatic), the physician should provide an opinion, consistent with sound medical judgment, addressing whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the disability (a) was caused OR (b) is or has been aggravated (worsened beyond the natural progression) by his service-connected diabetes mellitus type 2. If aggravation is found, the physician should attempt to quantify the degree of additional disability resulting from the aggravation, to include by identifying, to the extent possible, the baseline level of disability prior to the aggravation. In addressing the physician must consider and discuss all pertinent medical and other objective evidence, as well as all lay assertions. The physician is advised that the Veteran is competent to report his symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinions. If lay assertions in any regard are discounted, the physician should clearly so state, and explain why. All examination findings/testing results (if any), along with complete, clearly-stated rationale for the conclusions reached, must be provided. The Board emphasizes that the physician must provide a rationale for each opinion rendered. 4. After all records and/or responses received from each contacted entity have been associated with the claims file or a reasonable time for the Veteran’s response has expired, arrange to obtain from author of the December 2018 opinion an addendum opinion. If that individual is no longer employed by VA or is otherwise unavailable, document that fact in the record, and arrange to obtain an addendum opinion from an appropriate physician based on claims file review (if possible). Only arrange for the Veteran to undergo further examination, by an appropriate physician, if one is deemed necessary in the judgment of the individual designated to provide the addendum opinion. The contents of the entire, electronic claims file, to include a complete copy of this REMAND, must be made available to the designated individual, and the addendum opinion/examination report should include discussion of the Veteran’s documented history and lay assertions. For hypertension, the physician should provide an opinion, consistent with sound medical judgment, addressing whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the disability was caused by his service-connected diabetes mellitus type 2. In addressing the above physician must consider and discuss all pertinent medical and other objective evidence, as well as all lay assertions. The physician is advised that the Veteran is competent to report his symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinions. If lay assertions in any regard are discounted, the physician should clearly so state, and explain why. All examination findings/testing results (if any), along with complete, clearly-stated rationale for the conclusions reached, must be provided. The Board emphasizes that the physician must provide a rationale for each opinion rendered. 5. To help avoid future remand, ensure that all requested actions have been accomplished (to the extent possible) in compliance with this REMAND. If any action is not undertaken, or is taken in a deficient manner, appropriate corrective action should be undertaken. See Stegall, supra. 6. After completing the requested actions, and any additional notification and/or development deemed warranted, adjudicate the remaining claims on appeal, considering all pertinent evidence (to include all evidence added to the electronic claims file since the last adjudication, to specifically include the April 2019 VA Optometrist’s opinion and all evidence received pursuant to this remand) and legal authority. JACQUELINE E. MONROE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Michael Sanford, 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.