Citation Nr: 20021494 Decision Date: 03/26/20 Archive Date: 03/26/20 DOCKET NO. 19-22 380A DATE: March 26, 2020 REMANDED Entitlement to service connection for bilateral eye disability is remanded. Entitlement to service connection for bilateral hearing loss disability is remanded. Entitlement to service connection for a left ankle disability is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) prior to August 27, 2018, is remanded. REASONS FOR REMAND The Veteran had active duty service from March 1970 to November 1998. These matters come before the Board of Veterans’ Appeals (Board) on appeal from August 2018 and November 2018 Rating Decisions issued by a Department of Veterans Affairs (VA) Regional Office (RO). On August 23, 2017, the President signed into law the Veterans Appeals Improvement and Modernization Act, Pub. L. No. 115-55 (codified as amended in scattered sections of 38 U.S.C.), 131 Stat. 1105 (2017), also known as the Appeals Modernization Act (AMA). This law creates a new framework for Veterans dissatisfied with VA’s decision on their claim to seek review. Here, the appellant has not opted-in to VA’s test program, the Rapid Appeals Modernization Program (RAMP), with respect to the claims addressed herein. Although the AMA was implemented effective February 19, 2019, the Rating Decisions on appeal were issued prior to that date. Accordingly, the Board will review this appeal under the existing Legacy Appeals System. The Veteran seeks entitlement to service connection for bilateral eye disability, bilateral hearing loss disability, and a left ankle disability, as well as entitlement to a TDIU prior to August 27, 2018. Unfortunately, the Board finds that additional development must be undertaken before these claims can be adjudicated on the merits. The Veteran filed claims of entitlement to service connection for a bilateral eye condition, hearing loss, and a left ankle condition, among several other disabilities, in March 2017. In an Exam Scheduling Request associated with the record in March 2018, the Veterans Service Center (VSC) requested that Veterans Evaluation Services (VES) provide the Veteran with a number of examinations, to include an eye examination, an audiological examination, and a musculoskeletal examination. This request also specified that the Veteran resided outside the United States, and listed his address in Bang Lamung, Thailand. On March 21, 2018, the Veteran was afforded a number of VES contract examinations at a location in Bangkok, Thailand, to include examinations for Ear Conditions, Ankle Conditions, Knee and Lower Leg Conditions, Skin Diseases, Back (Thoracolumbar Spine) Conditions, and Scars/Disfigurement. Curiously, however, there were no examinations specific to the Veteran’s claimed hearing loss disability and bilateral eye disability. Rather, undated documents added to the record in August 2018 listed the status of his requested Eye Conditions and Hearing Loss and Tinnitus examinations as “No Show or Failure to Report.” In email correspondence dated in July 2018, a Veterans Service Representative noted that the Veteran was scheduled for examinations in March 2018 but that two contentions were still in “Triage” status with the proffered reason of, “No medical examinations are currently scheduled for this contention.” As such, the Veterans Service Representative inquired as to whether VES was still processing these contentions or whether they were cancelled. In response, a VES representative indicated that the Veteran was recorded as a “No Show” to both his audiology and ophthalmology examinations, and that the contentions listed in “Triage” status were due to a Veterans Benefits Management System (VBMS) data transmission error. In an August 2018 Rating Decision, the RO denied the Veteran’s claims of entitlement to service connection for a bilateral eye disability and a hearing loss disability based on his failure to report to the relevant scheduled VES examinations. However, in an October 2018 Decision Review Officer (DRO) Informal Conference Report, the Veteran’s agent indicated that the Veteran had good cause for not reporting to his scheduled Hearing Loss and Tinnitus examination because he was not notified of the examination until a day before the scheduled date and could not arrange transportation to the examination location. Additionally, the Veteran’s agent reported that the Eye Conditions examination was requested but not received from the VES contractor. As such, the DRO and Veteran’s agent agreed that these examinations would be rescheduled. In an Exam Scheduling Request associated with the record in November 2018, the VSC requested that VES provide the Veteran with an Eye Conditions examination as well as a Hearing Loss and Tinnitus examination. Again, this request specified that the Veteran resided outside the United States, and listed his address in Bang Lamung, Thailand. Curiously, however, the request also stipulated that, “Veteran is TERMINAL with Liver cancer and due to his health condition is unable to travel and requires an in-home examination. Request that VES accommodate Veteran and provide an in-home examination.” In email correspondence dated in November 2018, a VES representative indicated that, “While we do have providers available to evaluate the Veteran in his home, most necessary testing would not be able to be performed. We were unable to locate any current Audiograms, Visual Field Testing, or Eye Diagnostic results in VBMS.” As such, the examination requests were cancelled. Significantly, a review of the record does not reveal any correspondence from the Veteran or his agent indicating that the Veteran required an in-home examination. To the contrary, contemporaneous correspondence received from the Veteran’s agent in September 2018 indicated that the Veteran was currently residing with his sister in St. Petersburg, Florida, due to outpatient treatment he was receiving for melanoma at the Bay Pines VA Healthcare System in Bay Pines, Florida. A review of the claims file confirms outpatient treatment at the Bay Pines VA Healthcare System as recently as October 2018. Additional medical treatment records indicate that the Veteran was receiving outpatient treatment at Bumrungrad Hospital in Bangkok, Thailand, as well as Samitivej Srinakarin Hospital in Bangkok, Thailand, as recently as August 2018, while he received treatment at Bangkok Hospital Medical Center in Bangkok, Thailand, as recently as September 2018. The Board reiterates that the VES examinations provided to the Veteran in March 2018 were also conducted at location other than the Veteran’s home. VA’s duty to assist includes providing a medical examination when such is necessary to make a decision on a claim. 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4). Such development is necessary if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim, but (1) contains competent evidence of diagnosed disability or recurrent symptoms of disability, (2) establishes that the Veteran suffered an event, injury or disease in service, or has a presumptive disease during the pertinent presumptive period, and (3) indicates that the claimed disability may be associated with the in-service event, injury, or disease, or with another service-connected disability. 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79, 83-86 (2006) (noting that the third element establishes a low threshold and requires only that the evidence “indicates” that there “may” be a nexus between the current disability or symptoms and active service, including equivocal or non-specific medical evidence or credible lay evidence of continuity of symptomatology). Here, as the DRO and Veteran’s agent agreed that the Veteran should be rescheduled for an Eye Conditions examination as well as a Hearing Loss and Tinnitus examination, and as there is no evidence in the record that the Veteran or his agent indicated that such examinations had to be conducted at the Veteran’s home, the Board finds that these issues must be remanded in order to provide the Veteran with appropriate examinations to determine the nature and probable etiologies of any eye disability and hearing loss disability. With respect to his claim of entitlement to service connection for a left ankle disability, the Veteran asserted that his symptoms had their initial onset in service, with further aggravation as secondary to abnormal ambulation caused by his service-connected lumbosacral strain with degenerative arthritis of the spine and left knee strain with meniscal tear. The Veteran was provided with a VES Ankle Conditions examination in March 2018, at which time he was diagnosed as having lateral collateral ligament sprain of the left ankle. The VES contract examiner then opined that, “The veteran’s left ankle condition is less likely than not related to the ankle injury incurred during military service. There is an ankle injury requiring an x-ray for evaluation on 16 May 1972 in the veteran's c-file. There are no other records mentioning ankle problems. The veteran's job as a pilot with risks for minor ankle sprains. However, the lack of any other records gives no evidence to support the condition now stems from the injury in 1972.” Significantly, however, the March 2018 examiner did not opine as to the likelihood that the Veteran’s service-connected lumbosacral strain with degenerative arthritis of the spine and/or left knee strain with meniscal tear caused or aggravated his diagnosed lateral collateral ligament sprain. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (when VA undertakes to provide an examination or obtain a medical opinion, it must ensure that the examination or opinion is adequate); see also El-Amin v. Shinseki, 26 Vet. App. 136, 140 (2013) (indicating that findings of “not caused by,” and “not related to” a service-connected disability are insufficient to address the question of aggravation under 38 C.F.R. § 3.310(b). As such, an addendum opinion should be obtained which adequately addresses the question of secondary causation or aggravation of the left ankle disability in relation to the service-connected lumbosacral strain with degenerative arthritis of the spine and left knee strain with meniscal tear. With respect to the claim of entitlement to a TDIU prior to August 27, 2018, the Board finds that this issue is inextricably intertwined with the aforementioned remanded issues, as resolution of the service-connection claims in the Veteran’s favor could impact the outcome of his TDIU claim. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (holding that issues are inextricably intertwined and must be considered together when a decision concerning one could have a significant impact on the other). Finally, as mentioned above, correspondence received from the Veteran’s agent in September 2018 indicated that the Veteran was currently residing with his sister in St. Petersburg, Florida, until an undetermined date due to outpatient treatment he was receiving at the Bay Pines VA Healthcare System in Bay Pines, Florida. However, the most recent VA treatment records associated with the claims file are dated in October 2018, approximately two years ago. VA medical records, even if not in the claims file, are nevertheless considered part of the record on appeal because they are within VA's constructive possession. See 38 U.S.C. § 5103A (b) (West 2014); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992) (holding that VA adjudicators are deemed to have constructive notice of VA treatment records). Therefore, the Board finds that the RO must associate with the record any and all outstanding VA treatment records dated from October 2018 to the present. The matters are REMANDED for the following action: 1. Obtain the Veteran's updated VA treatment records from the Bay Pines VA Healthcare System in Bay Pines, Florida, and all associated outpatient clinics, since October 2018, and associate these records with the claims file. All attempts to obtain these records must be documented in the claims file. The Veteran and his agent must be notified of any inability to obtain the requested documents. 2. Provide the Veteran with an appropriate examination to determine whether any currently diagnosed eye disability is related to his period of active duty service, or proximately due to or caused by any of his service-connected disabilities. The claims file must be made available to the examiner in conjunction with the examination. All pertinent symptomatology and findings must be reported in detail. Based on a review of the evidence of record, the clinical examination results, and with consideration of the Veteran’s statements, the examiner must opine as to: Whether it is at least likely as not (a 50 percent probability or greater) that any currently-diagnosed eye disability had its onset during, or is otherwise etiologically related to, his period of active service. If the above opinion is negative, then provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that any currently-diagnosed eye disability was proximately due to any of his service-connected disabilities, to specifically include liver cancer, left axillary, subpectoral, and cervical lymph node cancer, malignant melanoma, left axillary region; and bone cancer, right ilium. If the above opinion is negative, then provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that any currently-diagnosed eye disability is aggravated beyond normal progression by his service-connected disabilities, to specifically include liver cancer, left axillary, subpectoral, and cervical lymph node cancer, malignant melanoma, left axillary region; and bone cancer, right ilium. A complete rationale must be provided for the opinions offered. 3. Provide the Veteran with an audiological examination by a qualified clinician to issue a medical opinion as to the nature and etiology of the Veteran’s claimed bilateral hearing loss. The clinician should review the Veteran’s entire claims file and all relevant studies, tests, and evaluations deemed necessary should be performed. Following a review of the record and examination of the Veteran, the examiner should offer an opinion as to whether the Veteran has hearing loss disability for VA purposes in one or both of his ears. If so, then the examiner is asked to opine as to whether the diagnosed hearing loss is at least as likely as not (50 percent probability or greater) related to service, to include in-service exposure to acoustic trauma. Rationale must be provided for the opinion proffered. In providing the requested rationale, the examiner must reconcile his/her opinion with the extent of any auditory threshold changes/shifts demonstrated during the Veteran's active service. If any in-service auditory threshold changes and/or shifts are found to be insignificant, then the examiner is asked to explain the rationale for this conclusion. In offering an opinion, the examiner must acknowledge that the Veteran is competent to report the initial onset of hearing loss and any continuity of symptomology since service. The examiner is advised that the absence of evidence of treatment for hearing loss in the service treatment records cannot, standing alone, serve as the basis for a negative opinion. 4. Return the claims file to the VES examiner who conducted the March 2018 Ankle Conditions examination, if available, to obtain an addendum opinion regarding the Veteran’s diagnosed lateral collateral ligament sprain of the left ankle. If the original examiner is not available, then forward the claims file to an appropriate examiner to obtain the requested opinion. If a new examination is deemed necessary, then one should be scheduled to determine whether the Veteran’s diagnosed lateral collateral ligament sprain of the left ankle is proximately due to or caused by any of his service-connected disabilities. The entire claims file must be made available to and reviewed by the examiner. Any indicated tests and studies must be accomplished and all clinical findings must be reported in detail and correlated to a specific diagnosis. An explanation for all opinions expressed must be provided. Based on a review of the evidence of record, the clinical examination results, and with consideration of the Veteran’s statements, the examiner must provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that the Veteran's diagnosed lateral collateral ligament sprain of the left ankle is proximately due to any of his service-connected disabilities, to specifically include lumbosacral strain with degenerative arthritis of the spine and left knee strain with meniscal tear. If the above opinion is negative, then provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that the Veteran’s diagnosed lateral collateral ligament sprain of the left ankle is aggravated beyond normal progression by any of his service-connected disabilities, to specifically include lumbosacral strain with degenerative arthritis of the spine and left knee strain with meniscal tear. A complete rationale must be provided for the opinions offered. The examiner should note that a finding that a disability is "not due to," "not caused by," and "not related to" a service-connected disability is insufficient to address the question of aggravation. See El Amin v. Shinseki, 26 Vet. App. 136, 140 (2013). 5. Notify the Veteran that it is his responsibility to report for any examination and to cooperate in the development of the claims. The consequences for failure to report for any VA examination without a showing of good cause may include denial of one or more of his claims. See 38 C.F.R. §§ 3.158, 3.655 (2019). 6. Thereafter, readjudicate the claims on appeal. If any benefit is not granted in full, then the Veteran and his agent must be issued a Supplemental Statement of the Case that informs him of the laws and regulations pertaining to his claims. An appropriate period should be   allowed for response, and then the case should be returned to the Board, if otherwise in order. U. R. POWELL Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Anthony M. Flamini 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.