Citation Nr: 21013868 Decision Date: 03/10/21 Archive Date: 03/10/21 DOCKET NO. 17-21 772 DATE: March 10, 2021 REMANDED Entitlement to service connection for right ear hearing loss is remanded. Entitlement to an initial rating in excess of 60 percent for coronary artery disease, status post myocardial infarction, is remanded. Entitlement to a rating in excess of 30 percent for posttraumatic stress disorder (PTSD) is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from September 1967 to July 1970. These matters are before the Board of Veterans’ Appeals (Board) on appeal from a June 2015 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The Board remanded these matters in March 2019 for additional development. At that time, the service connection claim on appeal was for bilateral hearing loss. In an October 2020 rating decision, the RO granted the Veteran service connection for left ear hearing loss. This is a full grant of the benefit sought for the left ear; therefore, the service connection claim for left ear hearing loss is no longer before the Board. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997). As such, the appeal has been recharacterized to reflect the remaining service connection claim for right ear hearing loss. Moreover, the October 2020 rating decision also awarded the Veteran an increased, 60 percent rating for coronary artery disease. As this increase constitutes a partial grant of the benefit sought, the increased rating claim remains on appeal and has been recharacterized accordingly. AB v. Brown, 6 Vet. App. 35, 38 (1993) (holding that a claimant is presumed to be seeking the maximum rating allowed by law). Unfortunately, the Veteran’s appeal must once again be remanded for further development. Although the Board regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide these claims so that the Veteran is afforded every possible consideration. 1. Entitlement to service connection for right ear hearing loss is remanded. The Veteran seeks entitlement to service connection for right ear hearing loss, which he contends was incurred in or caused by military service. The Veteran has stated that he was exposed to rocket and mortar fire while serving in the Republic of Vietnam. Pursuant to the March 2019 Board remand, the Veteran underwent a VA audiological examination in November 2019. On examination, he was confirmed to have a hearing loss disability in his right ear for VA compensation purposes pursuant to 38 C.F.R. § 3.385. Although the VA examiner offered an opinion that the Veteran’s right ear hearing loss is less likely than not related to military service, this opinion was based solely on the fact that the Veteran’s hearing acuity was within normal limits, with no evidence of threshold shift, at the time of his separation from service. This medical opinion provides an insufficient basis on which the Board can rely to deny a claim for service connection for hearing loss. See Hensley v. Brown, 5 Vet. App. 155, 159 (1993); Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992) (the absence of a hearing loss disability during service is not in and of itself fatal to a claim for service connection for bilateral hearing loss). In this regard, the examiner did not consider or discuss the relevance, if any, of the Veteran’s conceded exposure to hazardous noise during service based on his military occupational specialty (MOS) of communications specialist and radio operator, or his contention of being exposed to heavy weapons fire in Vietnam. In light of the above, the Board finds that the Veteran’s claim must be remanded once again because the RO did not comply with the Board’s prior remand directive to obtain an adequate medical opinion on the Veteran’s behalf. See Stegall v. West, 11 Vet. App. 268, 271 (1998). On remand, the RO must obtain an addendum medical opinion that is adequate for the Board to make an informed decision on the Veteran’s claim. See Barr v. Nicholson, 21 Vet. App. 303, 311-12 (2007); Douglas v. Shinseki, 23 Vet. App. 19, 26 (2009). 2. Entitlement to an initial rating in excess of 60 percent for coronary artery disease, status post myocardial infarction, is remanded. 3. Entitlement to a rating in excess of 30 percent for PTSD is remanded. The Veteran seeks increased ratings for his service-connected coronary artery disease and PTSD, which he contends have continued to increase in severity. Review of the Veteran’s claims file reveals that he receives his primary care from Dr. Silverman in Forest Hill, New York. His heart condition is treated by cardiologists at New York-Presbyterian Queens Hospital. Moreover, the Veteran has indicated to his VA examiners that he has undergone mental health counseling or therapy in the past, including some time prior to 2015 and from April 2017 to November 2018. The Board notes that these potentially-relevant private treatment records have not yet been requested or obtained. VA’s duty to assist requires it to make reasonable efforts to secure relevant records not in the custody of a Federal entity, including private treatment records. 38 U.S.C. § 5103A(b); 38 C.F.R. § 3.159(c)(1). Reasonable efforts must include an initial request for the records and at least one follow-up request, if the records are not received. In light of the above, the Board finds that remand is required to attempt to retrieve the Veteran’s private treatment records before the current severity of his service-connected disabilities can be properly evaluated. On remand, the RO should request the Veteran to identify any private healthcare providers where he has sought treatment for his heart and/or mental health conditions. The RO should then make reasonable efforts to secure the Veteran’s private treatment records on his behalf. If the RO is unable to obtain the relevant records sought, it should notify the Veteran of such and update the claims file. Accordingly, the matters are REMANDED for the following actions: 1. Obtain all outstanding VA treatment records. 2. Contact the Veteran and request that he provide information as to any outstanding private treatment records relevant to the claims on appeal. Specifically, he should be asked to identify and provide authorization for VA to obtain any (i) primary care records from Dr. Silverman in Forest Hills, New York; (ii) private treatment records from his private cardiologists, Dr. Moustakakis and Dr. Park, at New York-Presbyterian Queens Hospital; and (iii) mental health counseling or therapy records prior to 2015 and from April 2017 to November 2018. After obtaining the necessary authorization from the Veteran, the RO must make reasonable efforts to obtain any identified records. 3. Forward the Veteran’s claims file to a VA audiologist to provide an addendum medical opinion addressing the nature and etiology of his right ear hearing loss disability. A full audiological examination should not be scheduled unless it is deemed necessary by the examiner or otherwise required by the evidence. The examiner must review the claims file in its entirety, to include a copy of this REMAND, and that review must be noted in the report. Thereafter, the examiner is asked to provide a fully-articulated medical opinion addressing the following: (a) Is it at least as likely as not (50 percent or greater probability) that the Veteran’s right ear hearing loss disability had its onset during active service or within one year of separation, or is otherwise related to any in-service disease or injury, to include conceded exposure to excessive military noise? In providing the requested opinion, the examiner must consider and discuss the relevance, if any, of the Veteran’s MOS of radio operator (an MOS considered highly probable for noise exposure), and his lay reports of being exposed to heavy weapons fire while serving in Vietnam. The examiner is reminded that the term “at least as likely as not” does not mean “within the realm of possibility.” Rather, it means that the weight of the medical evidence both for and against the claim is so evenly divided that it is as medically sound to find in favor of the claim as it is to find against it. The examiner should note that the absence of documented hearing loss during service cannot serve as the sole basis for a negative finding. The Veteran’s lay statements and other evidence of record must be considered and weighed in making the determination as to whether a nexus exists between the Veteran’s hearing loss disability and military service. The examiner must provide a complete rationale for any opinions offered, citing to the examiner’s own expertise, medical principals, and/or evidence in the Veteran’s record, when necessary, to support the conclusion reached. If an opinion cannot be reached without resorting to speculation, the examiner must fully explain why that is so. The Board reminds the examiner that failure to comply with the examination directives outlined herein will render the opinion inadequate and will result in further remand of the Veteran’s claim. LESLEY A. REIN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Melissa Barbee, 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.