Citation Nr: 21005282 Decision Date: 02/01/21 Archive Date: 02/01/21 DOCKET NO. 17-19 102 DATE: February 1, 2021 REMANDED Entitlement to a rating in excess of 40 percent, prior to May 13, 2016, for bilateral hearing loss, and in excess of 50 percent thereafter, is remanded. Entitlement to service connection for a bilateral eye condition, to include bilateral cataracts, is remanded. Entitlement to service connection for valvular heart disease (including rheumatic heart disease) is remanded. Entitlement to a total disability rating for compensation based on individual unemployability (TDIU) due to service-connected disabilities is remanded. REASONS FOR REMAND Although the Board regrets the additional delay, a remand is necessary to ensure that due process is followed and that 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. The Veteran had active military service from November 1948 to April 1949. This matter comes before the Board of Veterans’ Appeals (Board) from the October 2014, May 2015, and August 2015 rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran appeared at a July 2019 hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the record. This matter was previously before the Board in June 2020 and was remanded for further development. 1. Entitlement to a rating in excess of 40 percent prior to May 13, 2016, for bilateral hearing loss, and in excess of 50 percent hereafter, is remanded. As noted above, this matter was previously before the Board in June 2020. Specifically, the Board directed the Agency of Original Jurisdiction to schedule the Veteran for a VA examination determine the current nature and severity of his service-connected bilateral hearing loss. Subsequently, in August 2020, the Veteran underwent a VA hearing loss examination. However, the Veteran’s most recent October 2020 Supplemental Statement of the Case (SSOC) only discusses a March 2020 VA hearing loss examination (which does not appear to be in the claims file). Although the Veteran’s claims file includes an August 2020 VA examination, that examination was not discussed by the October 2020 SSOC. When pertinent evidence is submitted by an appellant or representative and is received by the Board pursuant to 38 C.F.R. § 19.37 (b), “[t]he Board will then determine what action is required with respect to the additional evidence.” Here, the evidence was not submitted but rather was created by VA. In these circumstances, a remand is warranted for initial AOJ review of the August 2020 VA examination and, if the claim remains denied, issuance of a SSOC to the Veteran and his representative if necessary. See Sprinkle v. Shinseki, 733 F.3d 1180, 1184 (Fed. Cir. 2013). 2. Entitlement to service connection for a bilateral eye condition, to include bilateral cataracts, is remanded. The Veteran contends that his bilateral eye condition, to include bilateral cataracts, is related to his military service. Pursuant to the Board’s June 2020 remand, the Veteran underwent a VA examination in August 2020. The examination noted that the Veteran is diagnosed with asteroid hyalosis in the left eye, bilateral nuclear sclerotic cataract, and bilateral cortical cataract. The examiner opined that the Veteran’s bilateral eye condition is less likely than not related to the Veteran’s military service. The examiner explained what cataracts, ptosis, and asteroid hyalosis are and stated that the medical records show a past history of these diagnoses in 2014 and 2015. However, the examiner did not provide any rationale as to why the Veteran’s bilateral eye condition was not related to his military service and is thereby inadequate. Therefore, the Board finds that a remand is warranted for an addendum opinion to be obtained. 3. Entitlement to service connection for valvular heart disease (including rheumatic heart disease) is remanded. The Veteran contends that his heart disability is related to his military service. Pursuant to the Board’s June 2020 remand, the Veteran underwent a VA heart conditions examination in August 2020. The examiner noted that the Veteran is diagnosed with acute, subacute, or old myocardial infarction, coronary artery disease, valvular heart disease, aortic stenosis, status post aortic valve replacement, and atrial fibrillation. However, the examiner opined that the Veteran’s heart disabilities are less likely than not related to his military service. The examiner referenced several statements regarding the Veteran’s heart attack in service. Additionally, the examiner noted that the Veteran had a myocardial infarction in 2011, had a stent placement in 2014, as well as a diagnosis of aortic stenosis in 2015, and a valve replacement in August 2018. The examiner stated that the common clinical finding in aortic stenosis is presence of a murmur even in asymptomatic patients. However, the examiner stated that there is no documentation of the Veteran having a heart murmur in service. Additionally, the examiner stated that there are inconsistent reports about when the Veteran’s first heart attack occurred. The examiner concluded that the Veteran’s current cardiac conditions are less likely than not incurred in or caused by the Veteran’s military service, to include being exposed to increased amounts of poisonous gas and cigarette smoke during his military service. However, the Board finds that the examiner failed to provide a proper rationale for this opinion. Additionally, the Board notes a VA examiner must offer a full rationale for all opinions given and should not rely on the absence of evidence of in-service treatment or injury in the Veteran’s service treatment records as a basis for any given opinion. Furthermore, the Board notes that the Veteran’s service treatment records were unable to be located and therefore, it is misleading for the examiner to state that there is no documentation of the Veteran having a heart murmur in service. Finally, the Veteran’s representative argues that it is an unfair assertion to draw attention to the inconsistent reports regarding the Veteran’s first heart attack as the Veteran is currently suffering from dementia. Therefore, the Board finds that a remand is warranted to obtain an addendum opinion regarding whether or not the Veteran’s current cardiac conditions are related to his military service, to include being exposed to increased amounts of poisonous gas and cigarette smoke. 4. Entitlement to a total disability rating for compensation based on individual unemployability (TDIU) due to service connected disabilities is remanded. As the resolution of the claims above might be determinative of the TDIU claim, the issues are inextricably intertwined, and the TDIU issue must also be remanded. See Henderson v. West, 12 Vet. App. 11, 20 (1998); Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). The matters are REMANDED for the following action: 1. The RO should obtain a copy of the March 2020 hearing loss examination report (if such a report exists) and add it to the claims file. The RO must review the Veteran’s August 2020 hearing loss VA examination and any other pertinent evidence received since the Veteran’s October 2020 SOC. Then the RO should readjudicate the claims on appeal. If any benefit sought on appeal remains denied, furnish the Veteran and his representative a SSOC and return the case to the Board. 2. Obtain an addendum opinion by an appropriate clinician to determine the nature and etiology of the Veteran’s bilateral eye disabilities. The examiner must opine whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s bilateral eye disabilities are related to an in-service injury, event, or disease. All opinions provided must be thoroughly explained and an adequate rationale for any conclusions reached must be provided. The examiner should not rely on the absence of evidence of in-service treatment or injury in the Veteran’s service treatment records as a basis for any given opinion. If any requested opinion cannot be provided without resort to speculation, the medical professional should state and explain why an opinion cannot be provided without resort to speculation. 3. Obtain an addendum opinion by an appropriate clinician to determine the nature and etiology of the Veteran’s current cardiac conditions. The examiner must opine whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s current cardiac conditions are related to an in-service injury, event, or disease, including being exposed to increased amounts of poisonous gas and cigarette smoke, during his military service. All opinions provided must be thoroughly explained and an adequate rationale for any conclusions reached must be provided. The examiner should not rely on the absence of evidence of in-service treatment or injury in the Veteran’s service treatment records as a basis for any given opinion. If any requested opinion cannot be provided without resort to speculation, the medical professional should state and explain why an opinion cannot be provided without resort to speculation. 4. Following completion of the above, and a review of any additional evidence received, the RO should also undertake any other development it deems to be necessary, to include, if warranted, an addendum medical opinion which considers any newly received evidence. MICHAEL MARTIN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Mountford, 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.