Citation Nr: 20009875 Decision Date: 02/06/20 Archive Date: 02/05/20 DOCKET NO. 15-06 260 DATE: February 6, 2020 REMANDED Entitlement to an initial compensable rating (prior to July 17, 2019) and an initial rating in excess of 10 percent (from July 17, 2019) for right scrotum varicocele is remanded. Entitlement to an initial rating in excess of 30 percent for residuals status post right eye orbitotomy is remanded. REASONS FOR REMAND The Veteran served on active duty from January 1996 to January 2000. In October 2017, a Travel Board hearing was held before the undersigned Veterans Law Judge, and a transcript of the hearing is associated with the record. In July 2018, the case was remanded for additional development. The Veteran had also initiated an appeal of the denial of service connection for a right trapezius muscle disability. Following the Board’s July 2018 remand of this issue, an August 2019 rating decision granted service connection for this disability (characterized as muscle group I, III, IV, and XXII strain, right). Consequently, this matter is no longer on appeal and is not before the Board. 1. Entitlement to an initial compensable rating (prior to July 17, 2019) and an initial rating in excess of 10 percent (from July 17, 2019) for right scrotum varicocele. The Veteran contends that he is entitled to higher initial ratings for his service-connected right scrotum varicocele. The May 2013 rating decision on appeal granted service connection for such disability and assigned an initial 0 percent rating under Diagnostic Code (DC) 7599-7529. Thereafter, an August 2019 rating decision granted an increased rating of 10 percent under DC 7529-7542 for such disability (effective July 17, 2019, the date of a VA genitourinary examination). Because this award does not represent a total grant of benefits sought on appeal for this disability, the claim for increase remains before the Board. AB v. Brown, 6 Vet. App. 35 (1993). [While the Veteran indicated in a November 2019 written statement that he was seeking an earlier effective date for the 10 percent rating assigned by the August 2019 rating decision for his right scrotum varicocele, the Board finds that this “effective date” issue is part and parcel of the increased rating claim already on appeal, and the Board’s adjudication of that increased rating claim will simultaneously address any effective date concerns for all ratings assigned within the appeal period.] The Board cannot make a fully-informed decision on this issue at this time because the record reflects that there are outstanding pertinent treatment records that have not yet been associated with the claims file, as identified in VA treatment records obtained pursuant to the Board’s July 2018 remand. Specifically, two August 2016 VA treatment records documented that the Veteran was authorized through the Veterans Choice Program to receive urology treatment from a private provider (TriWest). Thereafter, a February 2019 VA treatment record documented that he had had a community care consult in urology by a private provider (Dr. Yafi) on January 7, 2019, with notes having been uploaded to VistA Imaging; however, the records of this private treatment are not currently viewable in the claims file. On remand, all outstanding treatment records must be associated with the claims file. 2. Entitlement to an initial rating in excess of 30 percent for residuals status post right eye orbitotomy. The Veteran contends that he is entitled to a higher initial rating for his service-connected residuals status post right eye orbitotomy. The July 2013 rating decision on appeal granted service connection for such disability (characterized as swelling of the right upper eyelid causing ptosis, status post right lateral orbitotomy) under the provisions of 38 U.S.C. § 1151 (based on an April 2009 VA right eye orbitotomy) and assigned an initial 30 percent rating under DC 6099-7800. The Board also cannot make a fully-informed decision on this issue at this time because the record reflects that there are outstanding pertinent treatment records that have not yet been associated with the claims file, as identified in VA treatment records obtained pursuant to the Board’s July 2018 remand. Specifically, an October 2017 VA treatment record documented that the Veteran was authorized through the Veterans Choice Program to receive ophthalmology treatment from a private provider (Dr. Agarwal). Thereafter, a November 2017 VA treatment record documented that he had had a Choice consult in ophthalmology (with an orbital MRI and electroretinogram) by Dr. Agarwal on November 2, 2017, with notes having been uploaded to VistA Imaging; however, the records of this private treatment are not currently viewable in the claims file. Furthermore, a January 2018 VA treatment record documented that he had had a community care consult in ophthalmology by Dr. Agarwal on January 9, 2018 (with the report having been uploaded to VistA Imaging), and a June 2018 VA treatment record referred to a community care note from Dr. Agarwal dated on January 25, 2018; however, the records of this private treatment are not currently viewable in the claims file. Finally, an October 2018 VA treatment record documented that he had had a community care consult in optometry by a private provider (Southern College Optometry) on September 20, 2018, with notes having been uploaded to VistA Imaging; however, the records of this private treatment are not currently viewable in the claims file. In addition, pursuant to the Board’s July 2018 remand, the Veteran underwent a new VA eye examination in July 2019. At that examination, the VA examiner noted a current diagnosis of right eye enophthalmos and opined that such condition was directly related to the Veteran’s April 2009 right eye orbitotomy; however, the VA examiner went on to indicate that the Veteran did not have scarring or disfigurement attributable to any eye condition. The Board notes that this finding (of no disfigurement) is inconsistent with the findings noted at the Veteran’s March 2013 VA eye examination (when it was indicated that he had right eye enophthalmos which was productive of visible or palpable tissue loss) and at his June 2013 VA eye examination (when it was indicated that he had right eye hypoglobus, right eye enophthalmos, and right upper eyelid ptosis which were productive of asymmetry of a paired set of features). Following his July 2019 VA eye examination, the Veteran alleged in a November 2019 written statement that he had “lost all vision” in his right eye and that his facial symmetry on his right side “droops and is deformed” due to his April 2009 right eye surgery. On remand, after all outstanding treatment records have been associated with the claims file, a new VA eye examination should be scheduled in order to ascertain the current level of severity of the Veteran’s service-connected residuals status post right eye orbitotomy, as there is an indication that the current record does not adequately reflect the severity of his condition. In addition to conducting all necessary testing to evaluate any current visual impairment, the examiner must also specifically evaluate any disfigurement associated with the Veteran’s service-connected right eye disability in accordance with the rating criteria of DC 7800. The matters are REMANDED for the following actions: 1. Ask the Veteran to complete a VA Form 21-4142 for all private providers who have treated him for his disabilities on appeal at any time during the appeal period, including from TriWest, Dr. Yafi, Dr. Agarwal, Southern College Optometry, and any other Choice-authorized treatment providers. Make two requests for the authorized records from each identified provider, unless it is clear after the first request that a second request would be futile. 2. Obtain all updated VA treatment records for the Veteran from each of the following facilities: the VA Greater Los Angeles Healthcare System (dating from June 2018 to the present), the VA San Diego Healthcare System (dating from March 2019 to the present), the VA Loma Linda Healthcare System (dating from April 2019 to the present), and the VA Long Beach Healthcare System (dating from August 2019 to the present). In addition, a viewable copy of each of the following records for the Veteran should be associated with the claims file, as these were each noted to have been uploaded to VistA Imaging: the notes of his community care consult in urology by Dr. Yafi on January 7, 2019; the notes of his Choice consult in ophthalmology (with an orbital MRI and electroretinogram) by Dr. Agarwal on November 2, 2017; the reports of his community care consults in ophthalmology by Dr. Agarwal on January 9, 2018 and on January 25, 2018; and the notes of his community care consult in optometry by Southern College Optometry on September 20, 2018. 3. After all requested records have been associated with the claims file, schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected residuals status post right eye orbitotomy. The electronic claims file must be made available to the examiner for review in conjunction with the examination. All necessary tests should be performed, and the results reported, to include all necessary testing to evaluate any current visual impairment. All pertinent symptomatology and findings must be reported in detail. Any appropriate Disability Benefits Questionnaire (DBQ) should be filled out for this purpose, if possible. The examiner must specifically evaluate any disfigurement associated with the Veteran’s service-connected right eye disability in accordance with the rating criteria of DC 7800 and specifically address the conflicting medical evidence. See July 2019 VA examination (no scarring or disfigurement attributable to any eye condition) versus March 2013 VA examination (right eye enophthalmos which was productive of visible or palpable tissue loss) and June 2013 VA examination (right eye hypoglobus, right eye enophthalmos, and right upper eyelid ptosis which were productive of asymmetry of a paired set of features). A complete rationale for all opinions must be provided. If the clinician cannot provide a requested opinion without resorting to speculation, it must be so stated, and the clinician must provide the reasons why an opinion would require speculation. MICHELLE L. KANE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board L. B. Yantz, Counsel The Board’s decision in this case is binding only with respect to the instant matters decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303 (2018).