Citation Nr: 21007786 Decision Date: 02/10/21 Archive Date: 02/10/21 DOCKET NO. 17-05 554 DATE: February 10, 2021 REMANDED Entitlement to service connection for bilateral hearing loss is remanded. Entitlement to service connection for left below-the-knee amputation is remanded. REASONS FOR REMAND The Veteran served on active duty from November 2003 to December 2005. By way of procedural history, the Board notes that an April 2016 rating decision, in part, denied service connection for bilateral hearing loss, left leg below-the-knee amputation, and kidney stones. In October 2016, the Veteran filed a notice of disagreement (NOD) as to the issues of bilateral hearing loss, left leg below-the-knee amputation, MRSA infection, and left stomach hernia. The Board notes that the Veteran did not have claims of entitlement to service connection for a MRSA infection or service connection for a left stomach hernia at the time of this NOD. In January 2017, the Agency of Original Jurisdiction (AOJ) contacted the Veteran to clarify the issues on appeal. The Veteran stated that he wished to appeal the issues of service connection for bilateral hearing loss and left leg below-the-knee amputation. He was notified that service connection for a MRSA infection and service connection for a left stomach hernia had not been adjudicated. Although the Veteran believed that a stomach hernia and kidney stones were the same disability, it was clear from the Veteran’s statements that he did not wish to appeal entitlement to service connection for kidney stones based on his October 2016 NOD and his January 2017 statements. However, in January 2017, the AOJ issued a statement of the case (SOC) addressing the issue of entitlement to service connection for kidney stones. In his January 2017 substantive appeal, the Veteran continued to appeal the issues of service connection for bilateral hearing loss, left leg below-the-knee amputation, MRSA infection, and left stomach hernia. Subsequently in March 2017, the Veteran filed an application for entitlement to service connection for a MRSA infection and service connection for a stomach hernia. A March 2017 rating decision denied service connection for these issues: however, the Veteran filed a NOD for entitlement to service connection for a stomach hernia. An August 2017 SOC denied service connection for a stomach hernia and the Veteran did not file a timely appeal. Therefore, the issues of entitlement to service connection for kidney stones or entitlement to service connection for a stomach hernia are not before the Board. Failure to report to VA examinations Under 38 C.F.R. § 3.655, when a claimant fails to report for an examination scheduled in conjunction with an original compensation claim, the claim shall be rated based on the evidence of record. VA regulations define an original claim as an initial application on a form prescribed by the Secretary. 38 C.F.R. § 3.160 (b). When a Veteran misses a scheduled VA examination, the Board must consider (1) whether the examination was necessary to establish entitlement to the benefit sought, and (2) whether the Veteran lacked good cause to miss the scheduled examination. See 38 C.F.R. § 3.655 (a); Turk v. Peake, 21 Vet. App. 565, 569 (2008). Examples of good cause include, but are not limited to, the illness or hospitalization of the claimant and death of an immediate family member. Id. In this case, an examination was necessary to establish entitlement to the benefits sought because the examination was necessary to address the crucial question of whether the Veteran’s bilateral sensorineural hearing loss is related to his active duty service. The evidence of record was not sufficient to reach a decision on these issues. Regarding whether good cause was shown for the Veteran’s failure to report to his scheduled VA examinations in December 2016, a November 2016 note that was received in January 2017 indicated that the Veteran was not taking his psychiatric medication and that there were concerns for the safety of the examiner and the staff. Therefore, the examination was cancelled as the Veteran was medically unable to attend. Thus, the Board finds that the Veteran failed to report for VA examinations with good cause. 1. Service connection for bilateral hearing loss is remanded. The Veteran contends that his bilateral hearing loss is related to in-service noise exposure. Service treatment records (STRs) from November 2005 indicated that the Veteran complained of hearing loss. VA audiology notes indicate that the Veteran has been diagnosed with severe sensorineural hearing loss. A May 2016 otolaryngology note indicated that the Veteran reported losing bilateral hearing prior to being diagnosed with mastoiditis. Therefore, the Veteran should be afforded a VA examination, and if such is still not feasible at this time, a VA opinion should be obtained based upon review of the record. 2. Service connection for left below the knee amputation is remanded. The Veteran contends that his left below-the-knee amputation is due to service or to his service-connected disabilities. Service connection has, in pertinent part, been established for bilateral plantar fasciitis and degenerative arthritis of the feet; left lower radiculopathy with sensory deficit associated with intervertebral disc syndrome of the thoracolumbar spine; and bilateral ankle sprain associated with plantar fasciitis and degenerative arthritis. VA treatment records from 2014 and 2015 noted that the Veteran had chronic septic joint infections of his left ankle. In February 2015 the Veteran had a left below-the-knee amputation to prevent chronic infections. Therefore, the Veteran should be afforded a new VA examination, and if such is not feasible at this time, a VA opinion should be obtained based upon review of the record.. The matters are REMANDED for the following action: 1. Obtain and associate with the record copies of all clinical records of the Veteran’s treatment at the Las Vegas, Nevada VA medical facility dated from March 2017 to the present. 2. Provide the Veteran with the appropriate examination to determine the etiology of the Veteran’s bilateral hearing loss. If an examination of the Veteran is not feasible, obtain a VA medical opinion based upon review of the record. If an examination is feasible, any indicated tests and studies must be accomplished and all clinical findings must be reported in detail; a complete and accurate history regarding the nature and onset of the Veteran’s bilateral hearing loss should be obtained by the examiner. Specifically, the examiner should seek clarification from the Veteran as to the date of onset of bilateral hearing loss. The examiner should respond to the following: (a.) The examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater) that the Veteran’s hearing loss is etiologically related to, incurred in, or caused by the Veteran’s military noise exposure, or manifest within one year of service discharge. The examiner should provide a complete rationale for all opinions expressed and conclusions reached. If it is not possible to provide an opinion 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). 3. Schedule an appropriate VA examination to determine the etiology of chronic septic joint infections of the Veteran’s left ankle that resulted in the left below-the-knee amputation. If an examination of the Veteran is not feasible, obtain a VA medical opinion based upon review of the record. The claims folder must be made available to the examiner for review of the case, and the examination report should include discussion of the Veteran’s documented medical history and lay statements. (a.) The examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater) that the Veteran’s chronic septic joint infections of the Veteran’s left ankle that resulted in the left below-the-knee amputation is related to any in-service event or injury, or is proximately due to or aggravated by a service-connected disability to include bilateral plantar fasciitis and degenerative arthritis of the feet; left lower radiculopathy with sensory deficit associated with intervertebral disc syndrome of the thoracolumbar spine; and bilateral ankle sprain associated with plantar fasciitis and degenerative arthritis. (Continued on the next page)   The examiner should provide a complete rationale for all opinions expressed and conclusions reached. If it is not possible to provide an opinion 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). S. L. Kennedy Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Costello, 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.