Citation Nr: 21032366 Decision Date: 05/26/21 Archive Date: 05/26/21 DOCKET NO. 16-14 532 DATE: May 26, 2021 REMANDED The claim for an initial evaluation greater than 10 percent for right lower extremity peripheral neuropathy is remanded. The claim for an initial evaluation greater than 10 percent for left lower extremity peripheral neuropathy is remanded. The claim for a compensable evaluation for bilateral hearing loss is remanded. The claim for a compensable evaluation for hypertension is remanded. The claim for a total disability evaluation based on individual unemployability due to service-connected disabilities (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty in the U.S. Army from January 1969 to September 1970. The Veteran served in Vietnam and was awarded the Combat Infantryman Badge and the Parachute Badge. He is a combat Veteran. The claims for entitlement to higher initial evaluations for bilateral lower extremity peripheral neuropathy, higher evaluations for bilateral hearing loss and hypertension, and to TDIU are remanded. First, the most recent supplemental statement of the case (SSOC) concerning these issues is dated in April 2016. Since then, VA outpatient treatments records dated from 2016 to 2020, private medical records, and VA examinations for central nervous system have been received into the record. The Veteran is entitled to an initial review of this evidence by the AOJ and the issuance of a supplemental statement of the case, or the option of waiving such review. 38 C.F.R. § 19.37. There is no evidence the Veteran has waived AOJ review of this evidence. Remand is thus required to allow the AOJ the opportunity to review the newly submitted evidence, prepare, and issue an SSOC, and give the Veteran and his representative time to respond. Second, the Board has identified evidence missing from the claims file. Results of audiometric findings were posted in the claims file in July 2012, but the document itself is partially illegible and a 2012 VA examination for hearing loss is not of record. See July 25, 2012 Miscellaneous C&P Correspondence. Similarly, the Veteran's representative notes discussion of 2020 audiometric findings in VA treatment records dated in March 2020 but observes that the audiometric findings themselves are not of record. See October 2020 Appellant Brief. In his application for TDIU, the Veteran reported he worked for the U.S. Postal Service from 1975 to 2005, retiring in 2005, but averred he was asked to take medical retirement secondary to his service-connected PTSD. See also September 22, 2008 Decision Review Officer Hearing Testimony. The record also shows he applied for workers' compensation for a back injury in March 1989 and a knee injury in 2001. The Veteran provided release of civilian personnel records from the USPS. The request was processed in 2009 by the National Archives and Records Administration, but it is uncertain whether appropriate follow-up was conducted as the records are not in the claims file. It does not appear that records from U.S. Department of Labor have been requested. VA is considered in constructive possession of federal records. Inasmuch as the records from USPS and USDOL are relevant to the Veteran's long-standing claim for TDIU, additional efforts to retrieve them must be conducted. In addition, the audiometric results discussed in 2012 and 2020 must be associated with the claims file, along with any VA examination for hearing impairment that may have been conducted at the time. Thus, the Board must remand to obtain the outstanding USPS, USDOL, and VA audiometric records. 38 C.F.R. § 3.159(c)(2); see Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). Third, since the April 2016 SSOC, the Veteran's overall disability picture has changed. VA and private medical records show he underwent coronary artery bypass graft surgery in January 2019, and a stroke in August 2019. VA examination for central nervous system in 2019 notes observations of decreased sensation in right upper and lower extremities, and a 2020 examination for housebound status or permanent need for regular aid and attendance reveals right-sided weaknessfindings associated with his stroke but which may also impact his service-connected peripheral neuropathy. See 2020 VA examination for Central Nervous System (notation that impairment is associated with diabetic neuropathy). VA treatment records in 2020 reflect that the Veteran's hearing impairment has increased, and hearing aids were issued in March 2020. The most recent VA examinations for his service-connected bilateral peripheral neuropathy, bilateral hearing loss, and hypertension were conducted in 2016, 2011, and 2011, respectivelyprior to these events. Remand is thus required to fulfill the VA's first and foremost priority to ensure accurate assessments of the service-connected disability pictures are of record. See Green v. Derwinski, 1 Vet. App. 121, 124 (1991). As the evidence indicates that the disabilities for which the Veteran has claimed increases may have worsened since his most recent VA examinations, new VA examinations should be provided to determine the severity of his bilateral lower extremity peripheral neuropathy, hearing loss, and hypertension. Finally, the Court has held in the case of a claim for TDIU the duty to assist requires that VA obtain an examination which includes an opinion on what effect service-connected disabilities have on a Veteran's ability to work. See Frisca v. Brown, 7 Vet. App. 294, 291 (1994). The last such VA examination conducted was in 2011, which is again prior to the changes in disability picture discussed above. Moreover, since the 2016 SSOC, service connection has been granted for coronary artery disease and stroke. As such, VA examination must be conducted to determine the impact of the overall combination of his service-connected disabilities on his employability. Moreover, the issue of TDIU is inextricably intertwined with the others on appeal, as any increase in disability would impact the Veteran's unemployability due to service-connected disabilities. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). Accordingly, these matters are REMANDED for the following action: 1. Associate with the Veteran's claims file any VA treatment records not already of record, including the 2012 and 2020 audiometric findings of hearing impairment and any VA examinations conducted in association with the audiometric testing. 2. Undertake appropriate action to associate the Veteran's civilian employment records from USPS and workers' compensation records from USDOL with the claims file. 3. Schedule the Veteran for a new examination regarding the severity of his bilateral lower extremity peripheral neuropathy, addressing all signs and symptoms necessary for evaluating the Veteran's disability under the rating criteria. The clinician must attempt to differentiate those symptoms of impairment associated with diabetes mellitus from those attributable to the residuals of the August 2019 stroke, where possible. If it is not possible to differentiate neurological symptoms attributable to the August 2019 stroke from those associated with diabetes mellitus, the clinician must clearly state this. The examiner must provide a clear rationale for all opinions offered. 4. Schedule the Veteran for a new examination regarding the severity of his bilateral hearing loss, addressing all signs and symptoms necessary for evaluating the Veteran's disability under the rating criteria. 5. Schedule the Veteran for a new examination regarding the severity of his hypertension, addressing all signs and symptoms necessary for evaluating the Veteran's disability under the rating criteria. 6. Schedule the Veteran for an examination to obtain evidence as to the functional effects of service-connected disabilities on his ability to obtain or maintain substantially gainful employment in light of his work history and level of education. In doing so, the VA examiner must consider the time period beginning July 14, 2009 (the year prior to receipt of his July 2010 claim for TDIU). Accordingly, the VA examiner must perform a records review examination for the time period prior to his 2019 heart surgery and stroke in addition to examining the Veteran's current disability picture. The examiner must provide a clear rationale for all opinions offered. (Continued on the next page) 7. Review the claims file. If any development is incomplete, including if the examinations reports do not contain sufficient information to respond to the questions posed, take correct action before readjudication. See Stegall v. West, 11 Vet. App. 268 (1998). 8. After completing the above development and any other development deemed necessary, readjudicate the Veteran's claims. If the claims remain denied, the Veteran and his representative should be issued an SSOC. An appropriate period of time should be allowed for response. Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order. K. Parakkal Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Bakke, Lila J. 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.