Citation Nr: 21007167 Decision Date: 02/08/21 Archive Date: 02/08/21 DOCKET NO. 16-32 000 DATE: February 8, 2021 REMANDED Entitlement to service connection for left arm pain is remanded. Entitlement to service connection for lumbar spine disability with blood clots is remanded. Entitlement to service connection for bilateral hearing loss is remanded. Entitlement to service connection for tinnitus is remanded REASONS FOR REMAND The Veteran served on active duty from December 1972 to January 1976. In February 2021, the Veteran testified at a video conference hearing (hearing) before the undersigned Veterans Law Judge. The Board of Veterans Appeals (Board) has recaptioned the Veteran’s claim for blood clot as part of his lumbar spine disability because the Veteran testified that his blood clot was a onetime occurrence and was due to his lumbar spine disability that rendered him bedridden at one time. 1. – 4. Left arm, lumbar spine with blood clot, bilateral hearing loss and tinnitus Based on the Veteran’s testimony and a review of the record, the Board finds that a remand in warranted in order to schedule the Veteran for VA examinations for his claims because his claims were denied for failure to attend VA examinations. The Veteran was informed in February 2014 that the VA requested examinations through a private medical facility, and that he would be advised of such examination(s) by the private facility. See February 2014 VA Correspondence. On the same date of the letter, the VA requested VA examinations for his claims. See February 2014 Veterans Examination Request Information System. The examination was cancelled in March 2014 for failure to report to the examination, and no further attempt to reschedule the VA examination was made. However, the claims file does not contain any notification of the scheduled VA examinations. Notably, the Veteran also testified the he did not receive notice of VA examinations. Given that it appears as though the Veteran did not receive notice of the scheduled VA examination(s), the Board finds that remand is necessary to make another attempt to schedule the Veteran for new VA examinations for his claims. Upon remand, the RO should confirm the Veteran’s current mailing address and provide appropriate notice of the examination to the Veteran and his representative. The Veteran testified that he received private chiropractic treatment from Dr. Abisola (Afolalu) and Dr. McCollum for his lumbar spine disability. He also stated that there was an MRI taken of his lumbar spine in Mexico. Because this evidence is relevant to these claims on appeal, the Regional Office (RO) should obtain such records with the Veteran’s assistance. The Board notes the claims file reflects that the Veteran has been receiving treatment from the San Diego VA Medical Center (VAMC), to include the Mission Valley VA Clinic, and that records dated through May 2016 are associated with the file; however, more recent records may exist.   In fact, the Veteran testified he received treatment at the LaJolla VAMC. The Board emphasizes that records generated by VA facilities that may have an impact on the adjudication of a claim are considered constructively in the possession of VA adjudicators during the consideration of a claim, regardless of whether those records are physically on file.  See Sullivan v. McDonald, 815 F.3d 786, 793 (Fed. Cir. 2016).   Thus, on remand the RO should obtain any outstanding VA treatment records to include records from San Diego VAMC, La Jolla VAMC, and Mission Valley Clinic.  The matters are REMANDED for the following action: 1. Obtain the Veteran’s comprehensive VA treatment records for the period from May 2016 to the present, to include from VA medical centers, clinics, counseling centers, hospitals, and outpatient treatment centers.  See 38 C.F.R. § 3.159(c)(3) (2020).  The Board observes that the Veteran has been treated at various VA facilities, to include San Diego VAMC, La Jolla VAMC, and Mission Valley Clinic.  2. Contact the Veteran and inform him that current private treatment records to include records from Dr. McCollum and Dr. Abisola (Afolalu) as well as the MRI report from Mexico should be submitted or the appropriate authorizations provided to VA so they can obtain them. If he provides the necessary release(s), assist the Veteran in obtaining the records identified, following the procedures set forth in 38 C.F.R. § 3.159. Any new evidence should be associated with the record. If any of the records sought are not available, the record should be annotated to reflect that fact, and the Veteran and his representative should be notified. 3. The Board recognizes the potential practical difficulties in scheduling an examination in light of the COVID-19 epidemic and requests flexibility and understanding in affording the Veteran any warranted examination. 4. After completing the above development, schedule the Veteran with VA examinations for his claims to determine the etiology of his claimed conditions. • For each examination, the Veteran must be provided written notice of the time and place of the examination. A copy of the notice letter sent to the Veteran informing him of the time, place, and location of the examination must be associated with the Veteran’s electronic claims file. • The letter should also inform the Veteran of the consequence of any failure to report for the examination without good cause. See 38 C.F.R. § 3.655. Lumbar Spine Disability with blood clot 5. Schedule the Veteran for a VA examination to determine the nature and etiology of his lumbar spine disability with blood clots. Any required diagnostic testing should be completed. Based on examination and review of the claims file including this remand, the examiner is asked to address the following: (a.) Identify the Veteran’s current lumbar spine disability(s), including associated blood clots. (b.) For each disability identified, opine whether it is at least as likely as not (i.e. a probability of 50 percent or more), related to or caused by the Veteran’s active service to include his reports that he injured his low back while moving ice? • In forming his or her opinion, the VA examiner is asked to explicitly consider in the rationale portion of the opinion, the Veteran’s lay statements and all other relevant evidence regarding each disability, and comment specifically on whether the Veteran’s statements and all other relevant evidence make sense from a medical point of view. • Are the Veteran’s assertions consistent with medical knowledge or implausible; • Are the Veteran’s reports about symptoms or an in-service injury align with how the disease or disability is known to develop. (c.) If arthritis is found, the examiner should opine whether it at least as likely as not any arthritis (1) began during active service, (2) manifested within one year after discharge from service, or (3) was noted during service with continuity of the same symptomatology since service. Left arm pain 6. Schedule the Veteran for a VA examination to determine the nature and etiology of his left arm pain. Any required diagnostic testing should be completed. Based on examination and review of the claims file including this remand, the examiner is asked to address the following: (a.) Identify the Veteran’s current left arm disability(s). (b.) For each disability identified, opine whether it is at least as likely as not (i.e. a probability of 50 percent or more), related to or caused by the Veteran’s active service to include his reports that he injured his left arm while moving ice? • In forming his or her opinion, the VA examiner is asked to explicitly consider in the rationale portion of the opinion, the Veteran’s lay statements and all other relevant evidence regarding each disability, and comment specifically on whether the Veteran’s statements and all other relevant evidence make sense from a medical point of view. • Are the Veteran’s assertions consistent with medical knowledge or implausible; • Are the Veteran’s reports about symptoms or an in-service injury align with how the disease or disability is known to develop. (c.) If arthritis is found, the examiner should opine whether it at least as likely as not any arthritis (1) began during active service, (2) manifested within one year after discharge from service, or (3) was noted during service with continuity of the same symptomatology since service. 7. Schedule a VA examination to determine the nature and etiology of any currently diagnosed bilateral hearing loss and tinnitus. The Veteran’s claims file must be provided to the examiner for review. All appropriate audiological testing should be performed. Based on review of the record including this remand, and examination, the examiner is asked to address the following: (a.) Is it at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran’s bilateral ear hearing loss began in or is related to his active service? (b.) Is it at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran’s tinnitus began in or is related to his time in the service is related to his time in the service? (c.) The examiner should also opine whether bilateral hearing loss and/or tinnitus had their onset or manifested within one year of the Veteran’s discharge. • Any opinion expressed by the VA examiner should be accompanied by a complete rationale. If medical literature is relied upon in rendering this determination, the VA examiner should identify and specifically cite each reference material utilized. • If the VA examiner is unable to offer an opinion without resorting to speculation, a thorough explanation as to why an opinion cannot be rendered should be provided. 8. THE AOJ MUST REVIEW THE CLAIMS FILE AND ENSURE THAT THE FOREGOING DEVELOPMENT ACTION HAS BEEN COMPLETED IN FULL. IF ANY DEVELOPMENT IS INCOMPLETE, APPROPRIATE CORRECTIVE ACTION MUST BE IMPLEMENTED. IF ANY REPORT DOES NOT INCLUDE ADEQUATE RESPONSES TO THE SPECIFIC OPINIONS REQUESTED, IT MUST BE RETURNED TO THE PROVIDING EXAMINER FOR CORRECTIVE ACTION. YVETTE R. WHITE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board G. Lilly, Associate Attorney 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.