Citation Nr: 21008936 Decision Date: 02/18/21 Archive Date: 02/18/21 DOCKET NO. 16-26 155 DATE: February 18, 2021 REMANDED The claim of entitlement to service connection for bilateral hearing loss is remanded. The claim of entitlement to service connection for diabetes mellitus is remanded. The claim of entitlement to service connection for skin cancer is remanded. The claim of entitlement to service connection for hypertension is remanded. The claim of entitlement to service connection for residuals of a stroke is remanded. REASONS FOR REMAND The Veteran had honorable active duty service with the United States Marine Corps from March 1980 to February 1988. The instant matter is on appeal from April 2015 and February 2017 rating decisions. In August 2019, the Board denied the claims of entitlement to service connection for bilateral hearing loss and diabetes mellitus. The Veteran appealed to the Court of Appeals for Veterans Claims (Court), and the Court vacated the Board’s denial pursuant to an August 2020 Joint Motion for Remand (JMR). Unfortunately, the Veteran’s service treatment records are unavailable for review. A February 1985 memorandum in his personnel record indicates that his health records were not received during a change in command. It is unclear if those records were ever recovered, and the National Personnel Records Center (NPRC) confirmed that it sent all available records for the Veteran in August 2016. Where service treatment records are unavailable, there is a heightened obligation to explain findings and conclusions, as well as consider the rule regarding benefit of the doubt. See O’Hare v. Derwinski, 1 Vet. App. 365, 367 (1991); Pruitt v. Derwinski, 2 Vet. App. 83, 85 (1992). VA additionally has a heightened duty to assist the Veteran in developing his claims when records are lost through no fault of his own. See Washington v. Nicholson, 19 Vet. App. 362, 369-70 (2005); see also 38 C.F.R. § 3.159. 1. The claim of entitlement to service connection for bilateral hearing loss is remanded. The Board regrets the additional delay, but remand is necessary in order to obtain an addendum opinion with respect to the etiology of the Veteran’s bilateral hearing loss. The April 2015 VA audiology examination acknowledged that service records were unavailable for the Veteran, but it did not address the Veteran’s earlier contention that his wife informed him that he exhibited symptoms of hearing loss when he left active service, or around 2001. His wife reportedly had to repeat herself when speaking with him. During service, the Veteran worked around aircraft, and thus noise exposure has been conceded. Accordingly, remand is necessary in order to obtain an addendum medical opinion to consider the Veteran’s additional lay statements of observable symptomatology, particularly in light of the missing service treatment records. 2. The claim of entitlement to service connection for diabetes mellitus is remanded. Remand is also necessary to obtain a VA examination to determine the etiology of his diabetes mellitus. The Veteran reported that he was diagnosed with hypoglycemia during active duty service. He experienced instances of fainting spells, which were attributed to his blood sugar at that time. Purportedly these symptoms were later diagnosed as diabetes mellitus. Given the fact that the Veteran’s service treatment records were lost through no fault of his own, the lay statements of record are sufficient to trigger VA’s duty to assist by affording him a VA examination. See McLendon v. Nicholson, 20 Vet. App. 79 (2006) (recognizing that 38 C.F.R. § 3.159 (c)(4) presents a low threshold for the requirement that evidence indicates a claim disability may be associated with military service for the purposes of a VA examination). Accordingly, an examination is necessary on remand. 3. The claim of entitlement to service connection for skin cancer is remanded. Remand is also necessary in order to obtain an addendum opinion with respect to the Veteran’s skin cancer. In the Board’s August 2019 remand of the issue, it instructed the examiner to address whether the Veteran’s skin cancer was related to his claims of excessive sun exposure during service, as well as exposure to jet fuel. The November 2019 examination, however, only addressed the issue of exposure to jet fuel. Furthermore, the examiner stated that the service treatment records did not contain complaints related to skin cancer, which failed to recognize that these records were, in fact, lost entirely, and not merely silent with respect to skin cancer complaints. Accordingly, an addendum opinion is warranted on remand in order to comply with previous remand instructions, as well as appropriately consider the Veteran’s missing service treatment records. 4. The claim of entitlement to service connection for hypertension is remanded. Similarly, an addendum opinion is necessary on remand in order to obtain a more thorough medical opinion with respect to the etiology of the Veteran’s hypertension. While the June 2017 and September 2019 examination reports address secondary service connection, the Veteran also reported that his hypertension started during active duty service. Unfortunately, an opinion with respect to direct service connection has not been obtained. Thus, remand is necessary in order to correct this omission. 5. The claim of entitlement to service connection for residuals of a stroke is remanded. As the Veteran is asserting entitlement to service connection for residuals of a stroke, which were purportedly caused by his hypertension and diabetes mellitus, the Board finds that this issue is inextricably intertwined with the resolution of the remanded issues. The appropriate remedy where a pending claim is inextricably intertwined with a claim currently on appeal is to defer the claim on appeal pending the adjudication of the inextricably intertwined claim. See Harris v. Derwinski, 1 Vet. App. 180 (1991). Accordingly, this issue is remanded for readjudication following evidentiary development. The matters are REMANDED for the following action: 1. Contact the Veteran and the representative of record in order to identify any outstanding non-VA treatment records regarding the issues on appeal. If non-VA providers are identified, obtain releases for those records. Make all reasonable attempts to obtain the non-VA treatment records and associate them with the claims file. If such records cannot be obtained, inform the Veteran and the representative of record, and afford an opportunity to provide these outstanding records. 2. Obtain any relevant, outstanding VA treatment records that are not already associated with the claims file. If no records are available, the claims folder must indicate this fact and the Veteran should be notified in accordance with 38 C.F.R. § 3.159 (e). All attempts to contact the Veteran should be documented in the record. 3. Once the aforementioned development is complete, obtain an addendum opinion with respect to the etiology of the Veteran’s bilateral hearing loss. A new examination may be ordered, if necessary, and may be conducted via telehealth, if feasible. The examiner should review the entire claims file, including a copy of this remand with particular attention to the absence of the Veteran’s service treatment records through no fault of his own. After a thorough review of the medical and lay evidence of record, the examiner should opine as to the following: (a.) Does the Veteran have a present diagnosis of hearing loss for VA purposes? If an examination is conducted, the examiner should specifically indicate all pure tone threshold values and Maryland Speech Recognition scores. (b.) If so, is it at least as likely as not (50 percent or greater probability) that the Veteran’s hearing loss had its onset during active duty service, is related to an incident of service, or began within one year after discharge from active service? Please specifically address the Veteran’s statements regarding his wife’s reports after discharge from service. The examination report should specifically state that a review of the record was conducted. The examiner should provide a complete rationale for all opinions provided. If an opinion cannot be provided without to resorting to mere speculation, the examiner should identify all medical and lay evidence considered in this conclusion, fully explain why this is the case and identify what additional evidence (if any) would allow for a more definitive opinion. 4. Once the aforementioned development is complete, schedule the Veteran for a VA examination to assess the etiology of his diabetes mellitus. The examination may be conducted via telehealth, if feasible. The examiner should review the entire claims file, including a copy of this remand with particular attention to the absence of the Veteran’s service treatment records through no fault of his own. After a thorough review of the medical and lay evidence of record, the examiner should opine as to the following: (a.) Is it at least as likely as not (50 percent or greater probability) that the Veteran’s diabetes mellitus had its onset during active duty service, is related to an incident of service, or began within one year after discharge from active service? Please specifically address the Veteran’s statements regarding hypoglycemia during service. The examination report should specifically state that a review of the record was conducted. The examiner should provide a complete rationale for all opinions provided. If an opinion cannot be provided without to resorting to mere speculation, the examiner should identify all medical and lay evidence considered in this conclusion, fully explain why this is the case and identify what additional evidence (if any) would allow for a more definitive opinion. 5. Once the aforementioned evidentiary development is complete, obtain an addendum opinion to assess the etiology of the Veteran’s skin cancer. A new examination may be scheduled, if necessary, and may be conducted via telehealth, if feasible. The examiner must review the entire claims file, including a copy of this remand with particular attention to the Veteran’s missing service treatment records, as discussed above. The examiner must consider the Veteran’s lay reports of observable symptomatology. After a thorough review of the record is complete, the examiner must respond to the following: (a.) Is it at least as likely as not (50 percent or greater probability) that the Veteran’s skin cancer had its onset during active duty service, is related to an incident of service, or began within one year after discharge from active service? Please specifically discuss the Veteran’s claim of excessive sun exposure, as well as exposure to jet fuel. The examination report should specifically state that a review of the record was conducted. The examiner should provide a complete rationale for all opinions provided. If an opinion cannot be provided without to resorting to mere speculation, the examiner should identify all medical and lay evidence considered in this conclusion, fully explain why this is the case and identify what additional evidence (if any) would allow for a more definitive opinion. 6. Once the aforementioned evidentiary development is complete, obtain an addendum opinion with respect to the etiology of the Veteran’s hypertension. A new examination may be ordered, if necessary, and may be conducted via telehealth, if feasible. The examiner must review the entire claims file, including a copy of this remand with particular attention to the Veteran’s missing service treatment records, as discussed above. The examiner must consider the Veteran’s lay reports of observable symptomatology. After a thorough review of the record is complete, the examiner must respond to the following: (a.) Is at least as likely as not (50 percent or greater probability) that the Veteran’s hypertension had its onset during active duty service, is related to an incident of service, or began within one year after discharge from active service? (b.) If not, is it at least as likely as not that the Veteran’s hypertension was caused by a service-connected disability, to include medication taken for that disability? (c.) Is it at least as likely as not that the Veteran’s hypertension was aggravated (any incremental increase in disability or any additional impairment of earning capacity regardless of permanence) by a service-connected disability, to include medication taken for that disability? The examination report should specifically state that a review of the record was conducted. The examiner should provide a complete rationale for all opinions provided. If an opinion cannot be provided without to resorting to mere speculation, the examiner should identify all medical and lay evidence considered in this conclusion, fully explain why this is the case and identify what additional evidence (if any) would allow for a more definitive opinion. 7. Following completion of the foregoing, the AOJ should review the record and readjudicate the claims on appeal, to include conducting any additional development as indicated. If any remain denied, the AOJ should issue an appropriate supplemental SOC, afford the Veteran and his representative an opportunity to respond, and return the case to the Board. B. MULLINS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board H. Fisher, 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.