Citation Nr: 18146186 Decision Date: 10/30/18 Archive Date: 10/30/18 DOCKET NO. 12-08 027A DATE: October 30, 2018 REMANDED Entitlement to service connection for a left knee disorder is remanded. Entitlement to service connection for a right knee disorder, to include as secondary to a left knee disorder, is remanded. Entitlement to service connection for a bilateral hip disorder, to include as secondary to a left knee disorder, is remanded. Entitlement to a compensable rating for bilateral hearing loss is remanded. REASONS FOR REMAND The Veteran was a member of the United States Marine Corps Reserves with periods of active duty for training (ACDUTRA) from April 1981 to February 1982 and from May 1984 to September 1984. The appellant has been determined to qualify for status as a Veteran. Notably, he was service-connected for a bilateral hearing loss disability and tinnitus based on in-service noise exposure during his time in the Marine Corps Reserve. The case comes before the Board of Veterans’ Appeals (Board) on appeal from the December 2009 and May 2012 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO). Entitlement to service connection for a left knee disorder is remanded. Entitlement to service connection for a right knee disorder is remanded. Entitlement to service connection for a bilateral hip disorder is remanded. Entitlement to a compensable rating for bilateral hearing loss is remanded. In a May 2016 decision, the Board found that specific service treatment records documenting treatment for the left knee were not of record at the time of a July 1986 rating decision and the April 1987 statement of the case that denied service connection for a left knee disorder. As a result, the Board found that reconsideration of this appeal under 38 C.F.R. § 3.156(c) (2017) was warranted and recharacterized the issue on appeal as entitlement to service connection for a left knee disorder. The Board then remanded these claims for additional development, to include obtaining an etiology opinion for the service connection claims and an audiological evaluation for the claim for an increased rating for bilateral hearing loss. The Veteran was subsequently scheduled for VA examinations in January 2018 and failed to appear; however, the Veteran’s representative submitted a statement of good cause as to why the Veteran did not attend, namely that notice of the examination was sent to the incorrect address. In June 2018, the Board found that specific service treatment records documenting treatment for the right knee were not of record at the time of a July 1986 rating decision and the April 1987 statement of the case that denied service connection for a right knee disorder. As a result, the Board found that reconsideration of this appeal under 38 C.F.R. § 3.156(c) (2017) was warranted and recharacterized the issue on appeal as entitlement to service connection for a right knee disorder. In addition, the Board reopened the claim for a bilateral hip disorder. The reopened claim, as well as the claims for service connection for a left and right knee disorder and an increased rating for bilateral hearing loss, were remanded so that VA examinations could be scheduled. Pursuant to a June 2018 remand, the Veteran was scheduled for VA examinations in August 2018. The report on record shows that the Veteran declined the examination. However, a report of contact dated September 2018 noted that the Veteran called the VA to reschedule the examination. He stated that he could not schedule the appointment due to the distance from the Veteran’s address. He requested an examination location which is closer in proximity to his address of record. The AOJ did not respond to this request. Thus, on remand, the AOJ should schedule him for VA examinations to determine the nature and etiology of his current left, right knee and bilateral hip disabilities as well as an audiological evaluation to determine the current severity of his service connected bilateral hearing loss. If the Veteran fails to report for such examination, special care should be taken to ensure that copies of all scheduling-related notification letters sent to him are associated with the record. The Veteran is advised that any findings reported during the new VA examinations will be critical to the evaluation of his claimed disabilities, and that VA’s duty to assist is not a one-way street. He also has an obligation to cooperate with VA in ensuring that duty is satisfied. See Kowalski v. Nicholson, 19 Vet. App. 171 (2005); Wood v. Derwinski, 1 Vet. App. 190 (1991). Furthermore, any failure to report for any scheduled examination without good cause may result in an adverse determination. 38 C.F.R. § 3.655 (2017). As the Board is remanding for further development, updated VA treatment records from September 2018 to the present, should be obtained and added to the record. The matters are REMANDED for the following action: 1. The Veteran should be given an opportunity to identify any outstanding private or VA treatment records relevant to the claim on appeal. After obtaining any necessary authorization from the Veteran, all outstanding records, to include updated VA treatment records dated from September 2018 to the present, should be obtained. For private treatment records, make at least two (2) attempts to obtain records from any identified sources. If any such records are unavailable, inform the Veteran and afford him an opportunity to submit any copies in his possession. For federal records, all reasonable attempts should be made to obtain such records. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 2. The Veteran should be afforded an appropriate VA examination to determine the current nature and severity of his claimed left knee and right knee disorders. The record, to include a copy of this Remand, must be made available to and be reviewed by the examiner. Any indicated evaluations, studies, and tests should be conducted. The examiner should identify the nature and severity of all current manifestations of the Veteran’s current disabilities. All opinions expressed should be accompanied by supporting rationale. Based on the review and the examination, the examiner should respond to the following: a) Whether the Veteran currently has a right knee disorder. b) If the Veteran has a current right knee disorder, whether it is at least as likely as not (50 percent probability or more) that the Veteran’s diagnosed right knee disorder had its onset in service, or is otherwise etiologically related to any period of ACDUTRA service? In so opining, the examiner should address the September 1984 service treatment record showing complaints of bilateral knee pain. c) Whether the Veteran currently has a left knee disorder. d) If the Veteran has a current left knee disorder, whether it is at least as likely as not (50 percent probability or more) that the Veteran’s diagnosed left knee disorder had its onset in service, or is otherwise etiologically related to any period of ACDUTRA service? In so opining, the examiner should address the following: i) Service treatment records from July 1982 showing an assessment of chondromalacia patella, left knee. ii) Service treatment records from September 1984 showing an arthroscopy procedure of the left knee and shaving of the patella. e) If service connection is found for the Veteran’s left knee disorder, is it at least as likely as not (50 percent probability or more) that the Veteran’s right knee disorder is caused by or results from the Veteran’s left knee disorder? f) If service connection is found for the Veteran’s left knee disorder, is it at least as likely as not (50 percent or greater probability) that the Veteran’s right knee disorder is aggravated (i.e. permanently worsened beyond the natural progression) by the Veteran’s left knee disorder? A fully articulated medical rationale for each opinion expressed must be set forth in the medical report. The examiner should discuss the particulars of this Veteran’s medical history and the relevant medical science as applicable to this case, which may reasonably explain the medical guidance in the study of this case. 2. Schedule the Veteran for a VA examination by an appropriately qualified examiner to determine the nature of his bilateral hip disorder. The claims file, including a copy of this REMAND, must be made available to the examiner for review. Based on the review and the examination, the examiner should respond to the following: a) Whether the Veteran currently has a bilateral hip disorder. b) If the Veteran has a current bilateral hip disorder, whether it is at least as likely as not (50 percent probability or more) that the Veteran’s diagnosed bilateral hip disorder had its onset in service, or is otherwise etiologically related to any period of ACDUTRA service?. In so opining, the examiner should address the Veteran’s contentions that the running, marching, crawling, and jumping in physical training caused his current bilateral hip disorder. c) If service connection is found for the Veteran’s left knee disorder, is it at least as likely as not (50 percent probability or more) that the Veteran’s bilateral hip disorder is caused by or results from the Veteran’s left knee disorder? d) If service connection is found for the Veteran’s left knee disorder, is it at least as likely as not (50 percent or greater probability) that the Veteran’s bilateral hip disorder is aggravated (i.e. permanently worsened beyond the natural progression) by the Veteran’s left knee disorder? A fully articulated medical rationale for each opinion expressed must be set forth in the medical report. The examiner should discuss the particulars of this Veteran’s medical history and the relevant medical science as applicable to this case, which may reasonably explain the medical guidance in the study of this case. 3. Schedule the Veteran for a VA examination by an appropriately qualified examiner to determine the current level of impairment of his service-connected bilateral hearing loss. The claims file, including a copy of this REMAND must be made available for review. The examination must include appropriate audiometric and speech discrimination testing of both ears at the applicable frequency levels. The examiner is also to describe any functional effects caused by the Veteran’s service-connected hearing loss disorder. A fully articulated medical rationale for each opinion expressed must be set forth in the medical report. The examiner should discuss the particulars of this Veteran’s medical history and the relevant medical science as applicable to this case, which may reasonably explain the medical guidance in the study of this case 4. If the Veteran fails to report for the aforementioned VA examination, a copy of the notification letter advising him of the time, date, and location of the scheduled examination must be included in the record and must reflect that it was sent to his last known address of record. If he fails to report to the examination, the record must indicate whether the notification letter was returned as undeliverable. KRISTY L. ZADORA Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD O. Owolabi, Law Clerk