Citation Nr: 21067021 Decision Date: 11/03/21 Archive Date: 11/03/21 DOCKET NO. 14-34 242A DATE: November 3, 2021 REMANDED Entitlement to service connection for bilateral eye disability is remanded. Entitlement to a rating in excess of 20 percent for left shoulder strain, synovitis, rotator cuff impingement syndrome, tendonitis, labral tear, and degenerative joint disease is remanded. Entitlement to a compensable rating for bilateral hearing loss is remanded. REASONS FOR REMAND The Veteran served with the Army National Guard, to include a verified period of active duty for training (ACDUTRA) from July 1983 to November 1983. These matters initially came before the Board of Veterans' Appeals (Board) from a December 2011 rating decision. An informal hearing conference with a Decision Review Officer (DRO) was conducted in April 2014 in lieu of a formal hearing and a report of that conference is associated with the Veteran's claims file. In September 2014, a DRO awarded an increased (20 percent) rating for the service-connected left shoulder disability, from April 28, 2014. The Veteran testified before the undersigned Veterans Law Judge at a July 2017 hearing and a transcript of the hearing is associated with his claims file. In October 2017, the Board expanded the appeal to include the inferred issue of entitlement to a TDIU, as part and parcel of the Veteran's increased rating claims. See Rice v. Shinseki, 22 Vet. App. 447 (2009). The Board awarded a TDIU, from August 20, 2015, and remanded the issue of entitlement to a TDIU, prior to that date, and the other service connection and increased rating issues on appeal, for further development. In March 2020, the agency of original jurisdiction (AOJ) awarded an increased (20 percent) rating for the service-connected left shoulder disability, from April 22, 2009 through April 28, 2014. In April 2020, the Board awarded a TDIU, from April 13, 2010 through August 19, 2015. The Board also remanded the remaining service connection and increased rating issues on appeal for further development. 1. Entitlement to service connection for bilateral eye disability is remanded. The Veteran contends that he has current bilateral eye disability caused by several injuries in service, including gas explosions on multiple occasions, getting splashed in the eyes with tear gas chemicals during training, being hit in the eyes with lasers, and being shot in the head while on training duty in 1990. In the April 2020 remand, the Board instructed the AOJ to obtain a medical opinion as to whether any eye disability experienced by the Veteran since approximately October 2010 began during service, is related to any injury or disease during service (including his reported eye injuries from gas explosions, tear gas chemicals, lasers, and a gunshot injury to the head), or is aggravated by any period of service. Pursuant to the Board's remand, a VA eye examination was conducted in September 2021 and the Veteran was diagnosed as having right eye pinguecula, right eye corneal scar, and left eye choroidal nevus. The examiner who conducted the examination opined that it was not likely that the Veteran's claimed eye disability began during service, was related to an injury or disease during service, or was aggravated by any period of service. The September 2021 opinion is inadequate because it appears to be largely based on a finding that the Veteran's eye diagnoses are normal and do not cause disability. However, the examination report indicates that the sclera of the Veteran's right eye would occasionally become inflamed and that he did experience a slight decrease in his visual acuity. Also, the examiner only addressed the diagnoses provided in the examination report and did not acknowledge or discuss the other eye disabilities diagnosed during the claim period (including dry eye, cataracts, glaucoma suspect, dermatochalasis, and posterior vitreous detachment). Moreover, the examiner did not adequately address the Veteran's reported exposures/injuries in service, including gas explosions on multiple occasions, getting splashed in the eyes with tear gas chemicals during training, being hit in the eyes with lasers, and being shot in the head while on training duty in 1990. Lastly, although the examiner opined that none of the Veteran's claimed eye disabilities were related to service, he also suggested that the Veteran's corneal scar could possibly be related to his orbital injury (presumably referring to his gunshot injury). In light of the above inadequacies of the September 2021 opinion, the Board finds that a remand is unfortunately again necessary to obtain an adequate medical opinion as to whether any current eye disability is related to service. Moreover, the evidence indicates that there may be outstanding relevant VA treatment records. The most recent VA treatment records in the claims file are from the White City Vista electronic records system (dated to January 2014), the VA Palo Alto Health Care System (dated to September 2019), the VA Southern Nevada Healthcare System (dated to August 2020), the VA Portland Health Care System (dated to July 2013), the Northern Arizona VA Health Care System (dated to June 2020), and the Roseburg VA Health Care System (dated to June 2013). Any VA treatment records are within VA's constructive possession and must be obtained regardless of their relevance as long as they are sufficiently identified. Sullivan v. McDonald, 815 F.3d 786, 793 (Fed. Cir. 2016) (VA has a duty to assist in obtaining sufficiently identified VA medical records regardless of their relevance). See also Jones v. Wilkie, 918 F.3d 922 (Fed. Cir. 2019) (confirming the holding in Sullivan). A remand is required to allow VA to obtain them. 2. Entitlement to a rating in excess of 20 percent for left shoulder strain, synovitis, rotator cuff impingement syndrome, tendonitis, labral tear, and degenerative joint disease is remanded. The evidence reflects that the Veteran's service-connected left shoulder disability may have worsened since he was last examined by VA in August 2019. For instance, VA treatment records dated from November 2019 to March 2020 indicate that the Veteran reported worsening left shoulder pain, that he underwent a left shoulder surgical procedure in January 2020, and that some shoulder range of motion measurements had worsened since the August 2019 examination. In light of this information, the Veteran should be provided an opportunity to report for a new VA examination to ascertain the current severity and manifestations of his service-connected left shoulder disability. Also, all outstanding VA treatment records should be secured upon remand. 3. Entitlement to a compensable rating for bilateral hearing loss is remanded. In the April 2020 remand, the Board instructed the AOJ to obtain the specific results of the audiometry testing conducted during a VA audiological evaluation on July 7, 2015, which are available in "CPRS Tools Audio Display." In other words, the AOJ was instructed to obtain the specific pure tone values at various frequencies and the results of speech discrimination testing, not merely the July 2015 VA audiology consultation note itself. The AOJ subsequently obtained a duplicate copy of the July 2015 VA audiology consultation note, but did not obtain the specific audiometry results available in "CPRS Tools Audio Display," as requested by the Board. Therefore, another remand of the issue of entitlement to an increased rating for bilateral hearing loss is required for compliance with the Board's April 2020 remand instructions. Stegall v. West, 11 Vet. App. 268, 271 (1998). Also, all outstanding VA treatment records should be secured upon remand. The matters are REMANDED for the following action: 1. Ask the Veteran to identify the location and name of any VA or private medical facility where he has received treatment for eye disability, left shoulder disability, and hearing loss, to include the dates of any such treatment. Ask the Veteran to complete a VA Form 21-4142 for all records of his treatment for eye disability, left shoulder disability, and hearing loss from any sufficiently identified private treatment provider from whom records have not already been obtained. Make two requests for any authorized records, unless it is clear after the first request that a second request would be futile. 2. Obtain the specific results of the audiometry testing (i.e., specific pure tone values at various frequencies and the results of speech discrimination testing) conducted during the VA audiological evaluation on July 7, 2015, which are available in "CPRS Tools Audio display." 3. Obtain the Veteran's outstanding VA treatment records, to include: (a) all records from the White City Vista electronic records system for the period since January 2014; (b) all records from the VA Palo Alto Health Care System for the period since September 2019; (c) all records from the VA Southern Nevada Healthcare System for the period since August 2020; (d) all records from the VA Portland Health Care System for the period since July 2013; (e) all records from the Northern Arizona VA Health Care System for the period since June 2020; (f) all records from the Roseburg VA Health Care System for the period since June 2013; and (g) all such relevant records from any other sufficiently identified VA facility. 4. After all efforts have been exhausted to obtain and associate with the claims file any additional treatment records, obtain an opinion from an appropriate clinician regarding whether any eye disability experienced by the Veteran since approximately October 2010 (including, but not limited to, dermatochalasis, posterior vitreous detachment, dry eye, cataracts, glaucoma suspect, right eye pinguecula, right eye corneal scar, and left eye choroidal nevus) at least as likely as not (1) began during a period of ACDUTRA or inactive duty training (INACDUTRA); (2) is related to an injury or disease during a period of ACDUTRA or an injury during a period of INACDUTRA, including his reported eye injuries from gas explosions, tear gas chemicals, lasers, and a gunshot injury to the head; OR (3) is aggravated by any period(s) of ACDUTRA and INACDUTRA. The clinician must provide reasons for each opinion given. In this regard, the clinician must address all eye disabilities diagnosed since approximately October 2010 (including, but not limited to, dermatochalasis, posterior vitreous detachment, dry eye, cataracts, glaucoma suspect, right eye pinguecula, right eye corneal scar, and left eye choroidal nevus) and the Veteran's reported eye injuries in service from gas explosions, tear gas chemicals, lasers, and a gunshot injury to the head. 5. After all efforts have been exhausted to obtain and associate with the claims file any additional treatment records, schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected left shoulder disability. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran's disability under the rating criteria. In so doing, the examiner must test the Veteran's active motion, passive motion, and pain with weight-bearing and without weight-bearing of both the left and right shoulder. The examiner must also attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups and with repeated use over time. If it is not possible to provide a specific measurement based on direct observation, the examiner should provide an estimate, if at all possible, of the additional impairment due to flare-ups and with repeated use over time based on the other evidence of record and the Veteran's statements. If it is not possible to provide a specific measurement without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). The examiner may not rely solely upon his or her inability to personally observe the Veteran during a period of flare-up or following repeated use over time. (CONTINUED ON NEXT PAGE) The examiner must provide reasons for any opinion given. Jonathan Hager Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. Elwood, 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.