Citation Nr: 1802455	
Decision Date: 01/11/18    Archive Date: 01/23/18

DOCKET NO.  12-22 667	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina


THE ISSUES

1.  Entitlement to service connection for hearing loss disability. 

2.  Entitlement to service connection for tinnitus.

3.  Entitlement to service connection for low back disability, to include as secondary to service-connected right and/or left knee disabilities.

4.  Entitlement to service connection for residuals of right fifth finger injury, to include as secondary to service-connected right and/or left knee disabilities.

5.  Entitlement to an initial rating in excess of 10 percent for service-connected right knee arthritis with chondromalacia.

6.  Entitlement to an initial rating in excess of 10 percent for postoperative residuals of left knee ligamentous injury.



REPRESENTATION

Veteran represented by:	James G. Fausone, Attorney


ATTORNEY FOR THE BOARD

M. Espinoza, Associate Counsel 


INTRODUCTION

The Veteran had active service from June 1980 to June 1984. 

These matters come before the Board of Veterans' Appeals (Board) on appeal from February 2010 (left knee, low back, right fifth finger), July 2011 (bilateral hearing loss, tinnitus) and June 2012 (right knee) rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina.

This case was previously before the Board in December 2014, when the Board denied entitlement to service connection for depression and remanded the issues listed on the title page for further development.  They now return for appellate review.

In March 2017, the Veteran's representative requested an extension of 90 days.  In May 2017, he requested copies of the Veteran's October 2015 disability questionnaires and an extension of 60 days from receipt of the October 2015 disability questionnaires.  In August 2017, the October 2015 disability questionnaires were sent to the Veteran's representative, and later in August 2017 the Board granted the motion for a 60 day extension.  In August 2017, the Veteran's representative requested an updated copy of the Veteran's claim file, which was provided in December 2017.  However, the Veteran's representative did not request an additional extension of time, and as the prior extension of time has elapsed, the Board may proceed with appellate review.  

The issues of entitlement to service connection for low back disability, entitlement to service connection for tinnitus, entitlement to an initial rating in excess of 10 percent for a right knee disability, and entitlement to an initial rating in excess of 10 percent for a left knee disability, are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ).


FINDINGS OF FACT

1.  The most probative competent evidence of record reflects that the Veteran does not have bilateral hearing loss disability for VA purposes.

2.  The most probative competent evidence of record establishes that it is at least as likely as not that the Veteran's residuals of a laceration to the right fifth finger is proximately due to or a result of his service-connected left knee disability.


CONCLUSIONS OF LAW

1.  The criteria for service connection for bilateral hearing loss disability have not been met.  38 U.S.C. §§ 1101, 1112, 1113, 1131, 1154, 5107 (West 2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385 (2017).

2.  The criteria for service connection for residuals of a laceration to the right fifth finger have been met.  38 U.S.C. §§ 1131, 1154(a), 5107 (West 2012); 38 C.F.R. §§ 3.102, 3.310 (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

With respect to the Veteran's claims herein, VA has met all statutory and regulatory notice and duty to assist provisions.  See 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2017); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015).  Furthermore, there has been substantial compliance with the Board's prior remand directives.  Stegall v. West, 11 Vet. App. 268 (1998).  Additionally, although the remand below directs updated VA treatment records be obtained, there is no indication the Veteran has sought recent VA treatment for bilateral hearing loss or that updated VA treatment records would potentially be relevant to his claim for bilateral hearing loss.

Generally, service connection may be established for disability resulting from disease or injury incurred in or aggravated by active military service.  38 U.S.C. § 1131 (West 2012); 38 C.F.R. § 3.303 (2017).  To establish service connection on a direct incurrence basis, the Veteran must show:  (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service.  Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).  

The requirement for a current disability is satisfied if the disability is present at any point proximate to the claim, during the claim, or to the appeal period.  See McClain v. Nicholson, 21 Vet. App. 319 (2007); Romanowsky v. Shinseki, 26 Vet. App. 289 (2014).  If there is no evidence of a present disability, there can be no valid claim.  Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992).  Additionally, there must be a demonstration of symptoms proximate to, or since, the time the application is filed.  Gilpin v. West, 155 F.3d 1353, 1356 (Fed. Cir. 1998). 

Service connection may also be granted for disability that is proximately due to or aggravated by service-connected disease or injury.  38 C.F.R. § 3.310 (2017).  See also Allen v. Brown, 7 Vet. App. 439, 448 (1995).

A.  Bilateral Hearing Loss

For the purpose of applying the laws administered by VA, impaired hearing will be considered a disability when the auditory threshold for any of the frequencies of 500, 1000, 2000, 3000 and 4000 Hertz is 40 decibels or greater; the auditory thresholds for at least three of these frequencies are 26 decibels or greater; or speech recognition scores using the Maryland CNC Test are less than 94 percent.  38 C.F.R. § 3.385 (2017).  The threshold for normal hearing is from zero to 20 decibels, and higher threshold levels indicate some degree of hearing loss.  Hensley v. Brown, 5 Vet. App. 155, 159 (1993).  

Turning to the first element of service connection for bilateral hearing loss, the existence of a present disability, the Board finds that the evidence of record confirms the Veteran has not been diagnosed with bilateral hearing loss for VA purposes.  Pursuant to December 2014 Board remand, an October 2015 hearing loss and tinnitus disability benefits questionnaire was obtained.  The October 2015 VA hearing loss and tinnitus disability benefits questionnaire revealed the following puretone thresholds, in decibels:




HERTZ



500
1000
2000
3000
4000
RIGHT
20
20
20
15
20
LEFT
15
20
15
25
20

As described above, the October 2015 VA hearing loss and tinnitus disability benefits questionnaire revealed that the Veteran did not have any auditory threshold above 26 decibels.  His Maryland CNC test score was 96 percent in the right ear and 100 percent in the left ear.  In this examination, the Veteran was not diagnosed with hearing loss in accordance with VA standards and audiometric results of the do not show that the Veteran has hearing loss "disability" for VA purposes under the provisions of 38 C.F.R. § 3.385.  During the pendency of the claim or proximate to the claim, it has not been shown that the Veteran has an auditory threshold of 40 decibels or greater for any of the designated frequencies (500, 1000, 2000, 3000, 4000 Hertz), that he has at least three auditory thresholds of 26 decibels or greater for the designated frequencies, or that he has a speech recognition score using the Maryland CNC Test of less than 94 percent.  This is true for both the right and left ears.  

In an October 2017 statement, the Veteran's representative challenged the nexus opinion of the October 2015 examiner, stating that it was based on an inaccurate rationale.  Specifically, in October 2017, the Veteran's representative submitted articles which addressed delayed onset hearing loss.  The Veteran did not waive review of the evidence by the AOJ.  See 38 C.F.R. § 20.1304 (c) (2017).  However, the Veteran's present claim turns on whether the evidence demonstrates a current hearing loss disability for VA purposes rather that linking a current hearing loss disability to active service, as addressed by the articles.  Consequently, the Board finds that remand to the AOJ for a supplemental statement of the case reflecting consideration of this evidence is not warranted.  See 38 C.F.R. §§ 19.31, 19.37, 20.1304 (2017).  Furthermore, the Board highlights the fact that the Veteran's representative did not challenge the accuracy of the October 2015 audiometric testing.  In this regard, the Board is entitled to presume the competency of the October 2015 VA examiner and specific challenges to a VA examiner's competency must be raised by the Veteran to overcome this presumption.  See Rizzo v. Shinseki, 580 F.3d 1288 (Fed. Cir. 2009).  

The Veteran has not submitted additional evidence in support of his claim that his reported bilateral hearing loss meets the threshold requirements set out by 38 C.F.R. § 3.385.  Furthermore, such is not reflected in his medical records associated with the record.  This includes a January 2011 VA treatment record which noted the Veteran reported a slight decline in hearing sensitivity in the right ear.  The January 2011 treatment record noted, in part, the Veteran's right ear hearing was within normal limits at the relevant frequencies of 1000 Hertz to 3000 Hertz and he had mild sensorineural hearing loss at the frequency of 4000 Hertz, his left ear hearing was within normal limits at the relevant frequencies of 1000 to 4000 Hertz and his word recognition ability was excellent in each ear when tested at 55 decibels.  While the January 2011 audiometric testing results are not of record, the January 2011 VA treatment record was explicitly considered by the October 2015 VA examiner, who did not endorse a diagnosis of bilateral hearing loss disability for VA purposes.  Other VA treatment records, including in a record dated in December 2015, noted a past medical history of sensory hearing loss, unilateral.  However, the Veteran's medical records do not suggest that any hearing difficulty meets the criteria to establish hearing loss "disability" for VA purposes.  While the Veteran is competent to report what comes to him through his senses (see Layno v. Brown, 6 Vet. App. 465 (1994)), including diminished hearing capacity, he is not competent to assess that such hearing loss meets the criteria for hearing loss "disability" as set forth in 38 C.F.R. § 3.385.  Rather, such may only be established by audiometric testing.  The evidence in this case simply does not support a finding that he currently has a hearing loss disability for VA purposes.  

Diminished hearing is not synonymous with a hearing loss disability for VA purposes and not all hearing loss constitutes hearing loss "disability" for VA purposes.  The Board may not grant the Veteran service connection, even at a noncompensable level, when the standard for a disability has not been met.  The Board notes that Congress has specifically limited entitlement to service connection to instances where disease or injury has resulted in a disability.  See 38 U.S.C. § 1131.  The evidence reflects that the Veteran does not have a hearing loss disability for VA purposes.  In the absence of proof of current disability, the claim of service connection may not be granted.  See Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992).  There has been no finding of bilateral hearing loss for VA purposes proximate to or during the pendency of the Veteran's claim.  See McClain v. Nicholson, 21 Vet. App. 319 (2007); Romanowsky v. Shinseki, 26 Vet. App. 289 (2013).  Thus, service connection for bilateral hearing loss is not warranted.

Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to bilateral hearing loss for VA purposes, the Veteran is not considered competent to provide a diagnosis.  The Board highlights that competent statements are limited to that which the Veteran has actually observed and is within the realm of his personal knowledge; such knowledge comes to the Veteran through use of his senses - that which is heard, felt, seen, smelled or tasted.  Layno, 6 Vet. App. at 469.  It is within Veteran's realm of personal knowledge whether he has diminished hearing; however, Veteran has not been shown to possess the medical knowledge and expertise to provide a probative opinion on a complex medical matter such as demonstration of bilateral hearing loss disability for VA purposes.  See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007).  In this regard, the October 2015 examiner had medical training and knowledge and did not interpret audiometric testing as demonstrating the criteria for hearing loss disability for VA purposes.  Rather, it was opined the Veteran had normal hearing bilaterally, even with consideration of the entire evidence of record, including the Veteran's subjective complaints. 

Thus, the most probative evidence fails to demonstrate that it is at least as likely as not that the Veteran currently has bilateral hearing loss disability for VA purposes.  As such, service connection for a bilateral hearing loss is not warranted.  Degmetich v. Brown, 104 F.3d 1328, 1333 (1997) (holding that the existence of a current disability is the cornerstone of a claim for VA disability compensation).  As noted above, entitlement for service-connected disease or injury is specifically limited to cases where such incidents have resulted in a disability and in absence of proof of a present disability there can be no valid claim.  Brammer, 3 Vet. App. at 225. 

In sum, the Veteran has not satisfied the necessary element of a present disability with respect to bilateral hearing loss disability, and thus, further discussion of the in-service incurrence or nexus elements or a discussion concerning chronicity and/or continuity of symptomatology is unnecessary.  38 C.F.R. §§ 3.303(b), 3.309(a).  Furthermore, based on the reasons and bases discussed, as the preponderance of the evidence is against the claim, the benefit of the doubt rule is inapplicable.  See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  Accordingly, service connection is not warranted for bilateral hearing loss.

B.  Right Fifth Finger Injury

As noted above, service connection may be granted for disability that is proximately due to or aggravated by service-connected disease or injury.  38 C.F.R. § 3.310 (2017).  See also Allen v. Brown, 7 Vet. App. 439, 448 (1995).

In his May 2009 claim, the Veteran asserted that service connection was warranted for his right fifth finger because when his ligaments were stretched or torn his knee felt as though it was giving way resulting in a fall, including a fall when he cut his right finger.  As noted previously, in addition to service connection on a direct incurrence basis, service connection may also be granted on a secondary basis for disability that is proximately due to or aggravated by service-connected disease or injury.  38 C.F.R. § 3.310.  Service connection for right knee disability and left knee disability were each granted effective from November 25, 2008.

The Veteran satisfies the existence of present disability service connection element with regard to a right fifth finger injury.  The injury to the right fifth finger is reflected in private medical records and a laceration to the right fifth finger was endorsed by the October 2015 hand and finger disability benefits questionnaire.  Thus, the Board finds a disability best characterized as residuals of a laceration to the right fifth finger has been demonstrated.

Pursuant to the December 2014 Board remand, a hand and finger disability benefits questionnaire was obtained in October 2015.  The October 2015 examiner stated that in regard to laceration of the Veteran's finger being associated with his service-connected bilateral knee disability, he did not have the circumstances leading up to the injury, and that upon current examination of the knees, the Veteran did show difficulty with flexion of his knees; however, his gait was quite stable and there was no instability that would lead to a spontaneous fall.  The October 2015 VA examiner stated it would be difficult to provide a specific opinion stating that the Veteran's fall in 2009 was directly attributable to his knees without mere speculation. 

The October 2015 hand and finger disability benefits questionnaire tends to weigh against the claim; however, the October 2015 examiner did not provide an opinion using the equipoise standard.  Additionally, the October 2015 VA examiner noted that apparently the Veteran had additional surgery to the right fifth finger but no records were found.  However, the claims file does contain additional records related to the Veteran's right fifth finger surgery.  Moreover, while the October 2015 examiner noted he did not have the circumstances leading up to the Veteran's injury, March 2009 private medical records, noted in part, that the right fifth finger laceration was the result of a fall, thus these inaccuracies lessen the probative value of the October 2015 opinion.  Nieves-Rodriguez, 22 Vet. App. at 304.  

Moreover, in a December 2008 private medical record, dated prior to the March 2009 right fifth finger injury, the Veteran, in part, reported, with respect to his left knee, some clicking and popping with occasional giving way, although the Board acknowledges a subsequent May 2009 private medical record found there had been no real swelling, catching, or giving way reported.  Nonetheless, as the evidence prior the Veteran's March 2009 right fifth finger injury did reflect complaints related to his left knee giving way, and with resolution of doubt in the Veteran's favor, the Board finds that it is at least as likely as not that the Veteran's residuals of a laceration to the right fifth finger is due his service-connected left knee disability.  

Further inquiry could be undertaken with a view towards development of the claim so as to obtain an additional medical opinion.  However, to do so in this case would only serve the purpose of obtaining negative evidence.  See Mariano v. Principi, 17 Vet. App. 305, 312 (2003).  Thus, with resolution of all reasonable doubt in the Veteran's favor, the Board finds that the Veteran's residuals of a laceration to the right fifth finger are proximately due to or a result of his service-connected left knee disability. 38 U.S.C. §  5107; 38 C.F.R. §§ 3.102 , 3.310, Gilbert, 1 Vet. App. At 53.  As noted above, service connection for a left knee disability was granted effective from November 25, 2008.  Accordingly, the evidence of record supports service connection for residuals of a laceration to the right fifth finger.


ORDER

Entitlement to service connection for bilateral hearing loss is denied.

Entitlement to service connection for residuals of a laceration to the right fifth finger is granted.


REMAND

Pursuant to the duty to assist, further development is warranted for remaining issues on appeal.  

With respect to the Veteran's disagreement with the initial ratings assigned for his service-connected right knee disability and left knee disability, pursuant to the December 2014 Board remand, a knee and lower leg conditions disability benefits questionnaire was most recently obtained in October 2015.  The October 2015 examiner found that pain, fatigue, weakness, lack of endurance, and incoordination, significantly limited functional ability with repeated use over a period of time; however, the examiner was not able to describe such in terms of range of motion as such was variable with real life repetitive use.  However, the October 2015 examiner's rationale for his inability to express an opinion is inadequate in that he did not attempt to elicit information from the record or the Veteran regarding the severity, frequency, duration, or functional loss manifestations with respect to such.  Jones v. Shinseki, 23 Vet. App. 382 (2010); see also Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017).  Furthermore, the Veteran's knee disabilities may have worsened as a December 2015 VA treatment record documented the Veteran reported he was told he would eventually need a left knee replacement and a June 2016 VA treatment record, reflected, in part, bilateral knee complaints and that the Veteran had a progression of symptoms since his initial injury.  38 U.S.C. §§ 5103A (d); 38 C.F.R. § 3.159 (c)(4); see also Weggenmann v. Brown, 5 Vet. App. 281 (1993); Green v. Derwinski, 1 Vet. App. 121 (1991).   Thus, the Board finds a new examination for the Veteran's right and left knee disabilities is warranted.  

With respect to entitlement to service connection tinnitus, as discussed above, the Veteran's representative, in October 2017, submitted two articles which addressed delayed onset hearing loss.  Additionally, one of the articles titled "Adding Insult to Injury:  Cochlear Nerve Damage after 'Temporary' Noise-Inducted Hearing Loss" further found, in part, that neurodegeneration should add difficulties hearing in noisy environments and could contribute to tinnitus, hyperacusis, and other perceptual anomalies commonly associated with inner ear damage.  The Veteran did not waive review of the evidence by the AOJ and the Board finds a remand is warranted for the AOJ to consider such in the first instance.  See 38 C.F.R. § 20.1304 (c) (2017).  Furthermore, in light the above article, the Board finds that a remand is warranted in order to obtain an addendum opinion with consideration of such.  38 U.S.C. § 5103A; 38 C.F.R. § 3.159; Barr v. Nicholson, 21 Vet. App. 303, 307 (2007).

With respect to the Veteran's claim for service connection for a low back disability, pursuant to the December 2014 Board remand, a back conditions disability benefits questionnaire was obtained in October 2015.  The October 2015 examiner endorsed a diagnosis of lumbosacral strain and opined that it was less likely than not that the Veteran's lumbosacral strain was due to his service-connected bilateral knee degenerative joint disease.  However, such did not address the claim on the basis of aggravation.  Furthermore, April 2016 VA imaging noted a normal lumbar sacral spine except for splinting and sclerosis of the left sacroiliac joint (SI) joint superiorly.  As noted above, the October 2015 examiner only addressed a diagnosis of lumbosacral strain.  Thus, an addendum opinion is warranted to address these deficiencies.  38 U.S.C. § 5103A; 38 C.F.R. § 3.159; Barr, 21 Vet. App. at 307; El-Amin v. Shinseki, 26 Vet. App. 136 (2013).

Additionally, in an October 2017 statement, the Veteran's representative reported the Veteran currently received weekly treatment from Cameron S. Piechocinski, D.C., for his chronic back pain and a December 2015 VA treatment record reflected the Veteran received current treatment from OrthoCarolina for his left knee disabilities; however, the most recent private medical records were associated with the record in August 2013.  Thus, the necessary authorization should be obtained from the Veteran, to obtain any relevant identified private treatment records for his low back disability, his left knee disability, or for any other disability at issue.  38 U.S.C. § 5103A (b); 38 C.F.R. § 3.159 (c)(1). 

Finally, in light of the remand, updated VA treatment records should be obtained.  The record within Virtual VA reflects the Veteran most recently received VA treatment from the W. G. (Bill) Hefner VA Medical Center (VAMC) located in Salisbury, North Carolina, in August 2016.  Thus, on remand, updated VA treatment records from the W. G. (Bill) Hefner VAMC, since August 2016, should be obtained and associated with the claims file.  See 38 U.S.C. § 5103A (c); 38 C.F.R. § 3.159 (c)(2); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992).

Accordingly, the case is REMANDED for the following actions:

1.  Obtain the Veteran's updated VA treatment records from W. G. (Bill) Hefner VAMC, since August 2016, and associate these records with the claims folder.  All attempts to obtain these records must be documented in the claims file.  The Veteran and his representative must be notified of any inability to obtain the requested documents.

2.  Contact the Veteran and request that he identify all private treatment providers for his low back disability, his left knee disability, or for any other disability at issue, to include from Cameron S. Piechocinski, D.C, and OrthoCarolina (not already of record), and provide VA the necessary authorization to obtain the identified private treatment records.  All attempts to obtain these records must be documented in the claims file.  The Veteran and his representative must be notified of any inability to obtain the requested identified documents.

3.  Request a VA addendum opinion from the examiner who provided the October 2015 back conditions disability benefits questionnaire.  If the examiner is not available, request a VA addendum opinion from a suitable substitute.  Provide a copy of this remand and the claims file to the examiner for review.  If deemed necessary by the examiner in order to provide the requested opinion, the Veteran should be scheduled for an examination and properly notified of such.  The examiner is asked to address the following:

Whether it is at least as likely as not (50 percent probability or more) that any low back disability (to include lumbosacral strain as well as splinting and sclerosis of the left SI joint superiorly), diagnosed proximate to or during the pendency of the claim, is proximately due to or the result of the Veteran's service-connected right knee and/or left knee disabilities? 

Is it at least as likely as not (a 50 percent or higher degree of probability) that any low back disability (to include lumbosacral strain as well as splinting and sclerosis of the left SI joint superiorly), diagnosed proximate to or during the pendency of the claim, is chronically aggravated by the Veteran's service-connected right knee and/or left knee disabilities? 

If it is found that any low back disability is aggravated by a service-connected disability, the examiner should identify the baseline level of severity prior to the onset of aggravation, or by the earliest medical evidence created at any time between the onset of aggravation and the receipt of medical evidence establishing the current level of severity.  If some of the increase in severity is due to natural progression, the examiner should identify the degree of increase in severity due to natural progression.

The term "at least as likely as not" does not mean within the realm of possibility, but rather that the evidence both for and against a conclusion is so evenly divided that it is as sound to find in favor of a certain conclusion as it is to find against it.

The term "aggravation" means an increase in the claimed disability; that is, a worsening of the condition beyond the natural clinical course and character of the condition due to the service-connected disability as contrasted to a temporary worsening of symptoms. 

A complete rationale for all opinions expressed must be provided.

4.  Request a VA addendum opinion from the examiner who provided the October 2015 hearing loss and tinnitus disability benefits questionnaire.  If the examiner is not available, request a VA addendum opinion from a suitable substitute.  Provide a copy of this remand and the claims file to the examiner for review.  If deemed necessary by the examiner in order to provide the requested opinion, the Veteran should be scheduled for an examination and properly notified of such.  The examiner is asked to address the following:

Whether it is at least as likely as not (50 percent probability or more) that the Veteran's tinnitus, was present in service, was caused by service, or is otherwise etiologically related to service, with consideration of the article titled "Adding Insult to Injury:  Cochlear Nerve Damage after 'Temporary' Noise-Inducted Hearing Loss" associated with the record in October 2017.

The term "at least as likely as not" does not mean within the realm of possibility, but rather that the evidence both for and against a conclusion is so evenly divided that it is as sound to find in favor of a certain conclusion as it is to find against it.

A complete rationale for all opinions expressed must be provided.

5.  Thereafter, schedule the Veteran for a VA examination to determine the current severity of his service-connected right knee and left knee disabilities.  The claims folder must be provided to the examiner in conjunction with the examination.  All pertinent symptomatology and findings must be reported in detail. Any indicated diagnostic tests and studies, must be accomplished. 

All ranges of motion involving the left knee and right knee should be tested, and the examiner should note if repeated range of motion testing results in additional limitation of motion, or in functional loss, and whether there is weakened movement, excess fatigability, or incoordination attributable to the Veteran's service-connected right knee and left knee disabilities, expressed in terms of the degree of additional range of motion loss due to any weakened movement, excess fatigability, or incoordination.

The examiner should test the range of motion in active motion, passive motion, weight-bearing, and nonweight-bearing for each knee.  If the examiner is unable to conduct any required testing or concludes that any required testing is not necessary in this case, he or she should clearly explain why that is so.

Furthermore, an opinion must be given as to whether any pain associated with the Veteran's service-connected right knee and left knee disabilities, could significantly limit functional ability during flare-ups or during periods of repeated use, noting the degree of additional range of motion loss due to pain on use or during flare-ups.  If this is not feasible to determine without resort to speculation, the examiner must provide an explanation for why this is so.

A complete rationale should be given for all opinions and conclusions expressed in the report.

6.  The Veteran must be notified that it is his responsibility to report for any scheduled examination and to cooperate in the development of the claims.  The consequences for failure to report for a VA examination without good cause may include denial of the claims.  38 C.F.R. §§ 3.158, 3.655 (2017).

7.  Thereafter, after undertaking any other development deemed appropriate, readjudicate the issues on appeal.  If any benefit sought is not granted, furnish the Veteran and his representative with a supplemental statement of the case and afford them an opportunity to respond before the record is returned to the Board for further review.

The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

These claims must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C. §§ 5109B, 7112 (West 2012).




______________________________________________
U. R. POWELL
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs