Citation Nr: 21003447 Decision Date: 01/21/21 Archive Date: 01/21/21 DOCKET NO. 14-37 371 DATE: January 21, 2021 REMANDED Entitlement to service connection for bilateral hearing loss is remanded. Entitlement to service connection for tinnitus is remanded. Entitlement to service connection for cervical strain is remanded. Entitlement to service connection for a right leg condition is remanded. Entitlement to a total disability rating based upon individual unemployability (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty from January 1982 to February 1982. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from January 2014, April 2014, and September 2014 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Oakland, California. The Veteran testified before the undersigned Veterans Law Judge during a November 2017 hearing. A transcript of the hearing is associated with the Veteran’s claim file. This matter was previously before the Board in March 2018, wherein the Board remanded for additional development to include scheduling the Veteran for examinations. The matter has returned to the Board for adjudication. Although the Board regrets the additional delay, a remand is necessary to ensure that due process is followed and there is a complete record upon which to decide the Veteran’s claim so that he is afforded every possible consideration. See 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c). 1. Entitlement to service connection for bilateral hearing loss, tinnitus, cervical strain and a right leg condition The Veteran contends that his bilateral hearing loss, tinnitus, cervical strain, and right leg condition are related to a fall he sustained during his active duty service. See August 2013 Statement in Support of Claim; see also November 2017 Board Hearing Transcript at pgs. 10, 12, 21. Per the March 2018 Board remand instructions, in May 2019, the RO scheduled the Veteran for VA examinations for service connection for bilateral hearing loss, tinnitus, cervical strain, and a right leg condition. However, correspondence from the examination contracting facilities dated August 2019 showed that the examinations were cancelled because the Veteran was a no show to the examination appointments. It is unclear what steps the RO and/or the VA contracting facility took to contact the Veteran to provide notice of the examinations. No further explanation was provided, and there is no documentation in the record of any specific attempts to contact the Veteran. Also, the Veteran’s claim files contained numerous VA correspondence that has been deemed to be undeliverable to the Veteran’s address beginning from September 2017. It is well established that VA's duty to assist includes the provision of an adequate examination when additional medical evidence is needed to substantiate a claim on appeal. See 38 U.S.C. § 5103A(d); McClendon v. Nicholson, 20 Vet. App. 79, 81 (2006). In light of the lack of documentation regarding the scheduling of the examinations in this case and numerous undeliverable correspondence to the Veteran, the Board finds that VA is obligated to attempt to reschedule the examinations in compliance with its prior remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). In doing so, all attempts to contact the Veteran and inform him of the scheduled examinations should be documented in the record. If the Veteran cannot be reached, the Veteran’s representative should be contacted to assist with locating the Veteran. The Veteran is reminded that the duty to assist is a two-way street. If the Veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the relevant evidence. Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). 2. Entitlement to a TDIU The issue of entitlement to a TDIU is inextricably intertwined with the appeal for service connection for bilateral hearing loss, tinnitus, cervical strain and right leg condition issues being remanded, and thus the Board will defer consideration of the appeal with regard to entitlement to a TDIU. See 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 on one issue cannot be rendered until the other issue has been considered). The matters are REMANDED for the following action: 1. Verify the Veteran’s current mailing address and ensure that his mailing address is annotated in his electronic profile. Attempt to verify his address by both telephone and mail. If attempts to verify the Veteran’s current address are not successful, contact the Veteran’s representative to assist with obtaining his address. All reasonable efforts to obtain the Veteran’s current mailing address should be documented in the Veteran’s file. 2. Obtain any VA medical treatment records. All reasonable attempts should be made to obtain any identified records. 3. The Veteran should also be afforded the opportunity to identify and submit any outstanding private treatment records that relate to the conditions on appeal. He should provide those records or in the alternative, provide a release so that VA can attempt to obtain those records. 4. After the Veteran’s current address is verified, schedule the Veteran for a VA examination with medical opinion to address the claim for bilateral hearing loss. The decision for an in-person examination of the Veteran is left to the discretion of the examiner. All indicated tests and studies should be accomplished (with all findings made available to the requesting examiner prior to the completion of his or her report), and all clinical findings should be reported in detail. The electronic records, to include a copy of this remand, should be made available to and reviewed by the examiner, and an opinion as follows is requested: a) Is there clear and unmistakable evidence (i.e., undebatable) that bilateral hearing loss preexisted service? b) If there is clear and unmistakable evidence that a bilateral hearing loss preexisted service, is there clear and unmistakable evidence that the preexisting hearing loss did not undergo an increase in the underlying pathology during service, i.e., was not aggravated during service? c) If there was an increase in the severity of such a pre-existing bilateral hearing loss during service, the examiner should offer an opinion as to whether such increase was clearly and unmistakably due to the natural progress of the disease. d) For any bilateral hearing loss that did not exist prior to service, is it at least as likely as not (a 50 percent or greater probability) that any such disability is related to service, to include the Veteran’s fall during basic training? e) Is there clear and unmistakable evidence (i.e., undebatable) that tinnitus preexisted service? f) If there is clear and unmistakable evidence that tinnitus preexisted service, is there clear and unmistakable evidence that the preexisting tinnitus did not undergo an increase in the underlying pathology during service, i.e., was not aggravated during service? g) If there was an increase in the severity of such a pre-existing tinnitus during service, the examiner should offer an opinion as to whether such increase was clearly and unmistakably due to the natural progress of the disease. h) For any tinnitus that did not exist prior to service, is it at least as likely as not (a 50 percent or greater probability) that any such disability is related to service, to include the Veteran’s fall during basic training? 5. Schedule the Veteran for a VA examination with medical opinion to address the claim for cervical strain. The decision for an in-person examination of the Veteran is left to the discretion of the examiner. All indicated tests and studies should be accomplished (with all findings made available to the requesting examiner prior to the completion of his or her report), and all clinical findings should be reported in detail. The electronic records, to include a copy of this remand, should be made available to and reviewed by the examiner, and an opinion as follows is requested: a) The examiner should identify any current diagnoses the Veteran has presented related to the cervical strain disability at any time during the claim period (i.e., from July 2013 to the present). b) For each diagnosis, the examiner shall opine as to whether it is at least as likely as not (a 50 percent or greater probability) that such condition had its onset during the Veteran’s service or otherwise results from or was caused by any injury or disease that occurred in service, to include the Veteran’s fall during basic training. 6. Schedule the Veteran for a VA examination with medical opinion to address the claim for a right leg condition. The decision for an in-person examination of the Veteran is left to the discretion of the examiner. All indicated tests and studies should be accomplished (with all findings made available to the requesting examiner prior to the completion of his or her report), and all clinical findings should be reported in detail. The electronic records, to include a copy of this remand, should be made available to and reviewed by the examiner, and an opinion as follows is requested: a) The examiner should identify any current diagnoses the Veteran has presented related to the right leg disability at any time during the claim period (i.e., from August 2013 to the present). b) For each diagnosis, the examiner shall opine as to whether it is at least as likely as not (a 50 percent or greater probability) that such condition had its onset during the Veteran’s service or otherwise results from or was caused by any injury or disease that occurred in service, to include the Veteran’s fall during basic training. In considering any lay statements of record, the examiner should note that the Veteran is competent to attest to matters of which he had first-hand knowledge, including observable symptomatology. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. The examination report must include a complete rationale for any opinion provided. If the examiner cannot provide the requested opinion without resorting to speculation, the examiner should so state and explain why an opinion cannot be provided without resorting to speculation. MARJORIE A. AUER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. Kim, Associate 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.