Citation Nr: 18150428 Decision Date: 11/15/18 Archive Date: 11/15/18 DOCKET NO. 15-40 474 DATE: November 15, 2018 ORDER An effective date earlier than April 24, 1997, for the grant of service connection for partial sacralization of the L5 vertebral body on the left, multilevel spondylosis and L3-L4, L4-L5 disc bulges with minimal bilateral neural foramina narrowing, (hereinafter a back disorder) is denied. An effective date earlier than April 24, 1997, for the grant of service connection for medial and lateral meniscal tears of the left knee joint with associated semimembranosus sprain (hereinafter left knee disorder), is denied. An effective date earlier than October 4, 1995, for the grant of service connection for bilateral hearing loss, is denied. An initial rating in excess of 20 percent for a back disorder, prior to March 19, 2018, and in excess of 40 percent thereafter is denied. REMANDED Entitlement to an initial compensable rating for bilateral hearing loss is remanded. Entitlement to an initial rating in excess of 10 percent for a left knee disorder is remanded. FINDINGS OF FACT 1. Service connection for a back disorder and a left knee disorder were initially denied in a November 1990 rating decision. The Veteran perfected an appeal to the Board, which denied his claims in a November 1994 decision. The Veteran then appealed the decision to the United States Court of Appeals for Veterans Claims (Court), and the Court affirmed the denial in a November 1996 decision. 2. A petition to reopen the claims of entitlement to service connection for a low back disorder and for a left knee disorder was received on April 24, 1997. 3. Service connection for bilateral hearing loss was initially denied in a December 1996 rating decision. The Veteran perfected an appeal to the Board, which denied his claim in an October 2000 decision; he did not appeal the decision to the Court. 4. A petition to reopen the claim of entitlement to service connection for bilateral hearing loss was received on February 26, 2001. 5. Prior to March 19, 2018, the Veteran’s low back disorder was manifested by forward flexion of the thoracolumbar spine greater than 30 degrees, with guarding severe enough to result in an abnormal gait; but without favorable ankylosis or incapacitating episodes due to IVDS. 6. From March 19, 2018, the Veteran’s low back disorder was manifested by forward flexion of the thoracolumbar spine 30 degrees or less; but without favorable ankylosis or incapacitating episodes due to IVDS. CONCLUSIONS OF LAW 1. The criteria for an effective date earlier than April 24, 1997, for the grant of service connection for a low back disorder, have not been met. 38 U.S.C. §§ 5101, 5110; 38 C.F.R. §§ 3.114, 3.816, 3.400. 2. The criteria for an effective date earlier than April 24, 1997, for the grant of service connection for a left knee disorder, have not been met. 38 U.S.C. §§ 5101, 5110; 38 C.F.R. §§ 3.114, 3.816, 3.400. 3. The criteria for an effective date earlier than October 24, 1995, for the grant of service connection for bilateral hearing loss, have not been met. 38 U.S.C. §§ 5101, 5110; 38 C.F.R. §§ 3.114, 3.816, 3.400. 4. The criteria for an initial rating in excess of 20 percent for a low back disorder, prior to March 19, 2018, and in excess of 40 percent thereafter, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.159, 4.1, 4.2, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5242. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1959 to May 1963. These matters are before the Board of Veterans’ Appeals (Board) on appeal from a January 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). Service treatment records were added to the claims file in November 2015; however, they are not relevant to the matters on appeal. Additional evidence was added to the file following the most recent issuance of the supplemental statement of the case in May 2018. A waiver of agency of original jurisdiction (AOJ) review was obtained in October 2008. Effective Date Except as otherwise provided, the effective date of an evaluation and award of compensation based on an original claim, a claim reopened after final disallowance, or a claim for increased rating will be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. Specific to claims to reopen (other than in cases where service department records were received after the final disallowance), the effective date for the grant of service connection based on a reopened claim is the date of receipt of the claim or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400(r). A “claim” or “application” is defined by VA regulation as “a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit.” 38 C.F.R. § 3.1(p) (prior to 2015). An informal claim is “[a]ny communication or action, indicating an intent to apply for one or more benefits...” and must identify the benefit sought. 38 C.F.R. § 3.155(a) (prior to 2015). VA has amended the regulations to require submissions on standardized claim forms. However, this change does not apply to the Veteran’s appeal. 1. Entitlement to an effective date earlier than April 24, 1997, for the grant of service connection for a low back disorder; Entitlement to an effective date earlier than April 24, 1997, for the grant of service connection for a left knee disorder. Claims for service connection for a back and a left knee disorder were originally received in January 1989. Service connection for a low back disorder and for a left knee disorder were originally denied by way of a November 1990 rating decision. The Veteran perfected an appeal for both claims and in November 1994, the Board denied the claims. The Veteran then appealed the Board’s decision to the Court, which affirmed the denial in a November 1996 decision. Therefore, the Board’s decision became final. 38 U.S.C. §§ 7105, 7291; 38 C.F.R. § 20.1100. On April 24, 1997, the RO received the Veteran’s petition to reopen the claims of service connection for a low back disorder and for a left knee disorder. In a December 2010 decision, the Board reopened and remanded these matters for further development. In March 2012, the Board granted the claims of service connection for a low back disorder and for a left knee disorder. An effective date of April 24, 1997, was assigned in a January 2013 rating decision; this was the date the RO received the Veteran’s petition to reopen these claims. The Veteran contends that the effective dates for the grants of service connection for the low back and left knee disorders should be earlier than the assigned date. Specifically, he contended that the effective date for these claims should be August 1977, since evidence already associated with the claims file supports that date and that he was denied the prior award because his original claims file was lost by the RO. See March 2014 Statement in Support of Claim; June 2018 Correspondence. Indeed, a VA memorandum indicated that the original file was missing and in a letter submitted in September 1982, the Veteran contended that he originally filed a claim in August 1977. However, there was no documentation associated with the claims file to establish that a claim was filed in August 1977. Based on the evidence of record, and after careful consideration, the Board finds that an earlier effective date is not warranted for either claim, for the reasons stated below. An effective date for a reopened claim of entitlement to service connection can be no earlier than the date the request to reopen the claim was filed. See 38 U.S.C. § 5110 (a); 38 C.F.R. §§ 3.109, 3.156, 3.157, 3.160(e), 3.400(r). There is no provision in either the statute or the regulations that allows for an earlier effective date based on a reopened claim unless a clear and unmistakable error was committed in a prior decision, or unless the new and material evidence resulted from receipt of additional relevant military records. See 38 U.S.C. § 5110(i); 38 C.F.R. §§ 3.105, 3.156(c). In this case, additional service medical records were added to the file after the prior final denial for these Veteran’s claims for service connection. Upon review, however, the service medical records were not relevant to either his low back or left knee disorders. Nonetheless, the record does not include any written formal or informal communication from the Veteran or his representative indicating an intent to apply for service connection for a low back disorder and/or a left knee disorder between November 1994 and April 24, 1997. A formal claim for service connection for bilateral hearing loss and other disabilities was filed in October 1995, but did not include any statement which could be interpreted as seeking compensation for a low back and/or left knee disorder. Therefore, April 24, 1997, is the earliest date upon which a request to reopen a claim for service connection for a low back disorder and a left knee disorder was filed. As noted, an effective date of a reopened claim cannot be earlier than the date the request to reopen the claim was filed. See 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400(r). The RO has already assigned the effective date commensurate with the date of receipt of the Veteran’s claim to reopen, which was April 24, 1997. Neither the Veteran nor his representative has presented an argument that clear and unmistakable error was committed in the original decision, nor have they presented an alternative legal theory for the basis that an earlier effective date is warranted for either claims for service connection. While the Board is sympathetic to the Veteran, it is bound by the applicable statutes and regulations. 38 U.S.C. § 7104(c). There is no legal basis by which to assign an effective date earlier than April 24, 1997, for the grant of service connection for a low back disorder and for a left knee disorder. The benefit of the doubt doctrine does not apply because the preponderance of the evidence is against the claim. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. 2. Entitlement to an effective date earlier than October 24, 1995, for the grant of service connection for bilateral hearing loss. On October 24, 1995, the Veteran filed an original claim for service connection for bilateral hearing loss, which was denied in a December 1996 rating decision. The Veteran perfected an appeal to the Board, and in October 2000, the Board denied the claim. Board’s decisions are final when issued. 38 U.S.C. §§ 7105; 38 C.F.R. § 20.1100. The Veteran did not initiate an appeal to the Court. On February 26, 2001, the Veteran submitted a petition to reopen the claim. In a December 2010 decision, the Board reopened and remanded the claim. In March 2012, the Board granted service connection for bilateral hearing loss. An effective date of October 24, 1995, was assigned in a January 2013 rating decision from which the current appeal stems. The Veteran seeks an earlier effective date. The Board finds that an earlier effective date is not warranted. As explained earlier, an effective date for a reopened claim of entitlement to service connection can be no earlier than the date the request to reopen the claim was filed. See 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400(r). There is no provision in either the statute or the regulations that allows for an earlier effective date based on a reopened claim unless a clear and unmistakable error was committed in a prior decision, or unless the new and material evidence resulted from receipt of additional relevant military records. See 38 U.S.C. § 5110(i); 38 C.F.R. §§ 3.105, 3.156(c). At the outset, the Board notes that the original claim of service connection for bilateral hearing loss was received on October 24, 1995. Despite the Veteran’s assertions, the record does not include any written formal or informal communication from he or his representative indicating an intent to apply for service connection for bilateral hearing loss prior to October 24, 1995. Pursuant to § 3.400(r), February 26, 2001, should have been the effective date assigned, as that was the date the Veteran’s reopened claim for bilateral hearing loss was received. Instead, the RO assigned an effective date of October 24, 1995. As this earlier date is more favorable to the Veteran, the Board will not disturb it. The Board has considered whether the additional service treatment records received in November 2015 could afford the Veteran an earlier effective date for the bilateral hearing loss, for example, by vitiating the finality of the October 2000 Board decision. Regardless of the finality of that decision, the earliest possible date for which service connection could be granted is October 24, 1995 as this was the date the original claim for service connection was received. Except as otherwise provided, the effective date of an evaluation and award of compensation based on an original claim will be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. The RO has already assigned October 24, 1995 as the date of the grant of service connection. Neither the Veteran nor his representative has presented an argument that clear and unmistakable error was committed in the original decision, nor have they presented an alternative legal theory for the basis that an earlier effective date is warranted for the claim for service connection. In sum, an effective date earlier than October 24, 1995, for the grant of service connection for bilateral hearing loss is not warranted. The Board is bound by the applicable statutes and regulations. The benefit of the doubt doctrine does not apply, as the preponderance of the evidence is against the claim. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Increased Rating Disability ratings are determined by applying a schedule of reductions in earning capacity from specific injuries or a combination of injuries that is based upon the average impairment of earning capacities. 38 U.S.C. § 1155. Each disability must be viewed in relation to its entire history, with emphasis upon the limitations proportionate to the severity of the disabling condition. 38 C.F.R. § 4.1. When rating the Veteran’s service-connected disability, the entire medical history must be reviewed. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where there is a question as to which of the two disability evaluations is applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. After careful consideration of the evidence of record, any reasonable doubt remaining will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. Where the question for consideration is the propriety of the initial evaluation assigned, evaluation of the medical evidence since the grant of service connection and consideration of the appropriateness of “staged rating” is required. Fenderson v. West, 12 Vet. App. 119, 126 (1999). Staged ratings apply to both initial and increased rating claims. See Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). 3. Entitlement to an initial rating in excess of 20 percent for a back disorder, prior to March 19, 2018, and in excess of 40 percent thereafter. Service connection for partial sacralization of the L5 vertebral body on the left, multilevel spondylosis and L3-L4, L4-L5 disc bulges with minimal bilateral neural foramina narrowing (hereinafter a back disorder) was granted in a January 2013 rating decision. An initial 20 percent rating was assigned pursuant to 38 C.F.R. § 4.71a, Diagnostic Code (DC) 5242. In March 2018, the RO granted a 40 percent rating, effective March 19, 2018. As that rating was less than total, the claim remained on appeal. AB v. Brown, 6 Vet. App. 35, 38 (1993). The Veteran’s back condition is rated under the General Rating Formula for Diseases and Injuries of the Spine (Diagnostic Codes 5235 to 5243). Ratings under the General Rating Formula are made with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease. See 38 C.F.R. § 4.71a. Diagnostic Code 5242 evaluates lumbar spine disabilities with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine. A 20 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or combined range of motion of the thoracolumbar spine not greater than 120 degrees; or muscle spasm or guarding severe enough to result in an abnormal gait or abnormal contour such as scoliosis. Id. A 40 percent rating is warranted for forward flexion of the thoracolumbar spine to 30 degrees or less, or with favorable ankylosis of the entire thoracolumbar spine. Id. Higher ratings require ankylosis. Any associated objective neurologic abnormality is to be evaluated separately, under an appropriate diagnostic code. 38 C.F.R. § 4.71a, DC 5237, Note 1. For VA compensation purposes, normal forward flexion of the thoracolumbar spine is zero to 90 degrees; extension is zero to 30 degrees; left and right lateral flexion are zero to 30 degrees; and left and right lateral rotation are zero to 30 degrees. The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The combined normal range of motion of the thoracolumbar spine is 240 degrees. Id., General Rating Formula, Note (2). Intervertebral disc syndrome (IVDS) is evaluated under either the General Rating Formula or under the IVDS Formula, whichever results in the higher evaluation when all disabilities are combined. 38 C.F.R. § 4.71a. An incapacitating episode is defined as a period of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician and treatment by a physician. 38 C.F.R. § 4.71a, Diagnostic Code 5243, Formula for Rating IVDS Based on Incapacitating Episodes. When evaluating musculoskeletal disabilities, VA must consider granting a higher rating in cases where the Veteran experiences functional loss due to limited or excess movement, pain, weakness, excess fatigability, or incoordination (to include during flare-ups or with repeated use), and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45; DeLuca v. Brown, 8 Vet. App. 202, 204-07 (1995); Mitchell v. Shinseki, 25 Vet. App. 32 (2011). The provisions of 38 C.F.R. §§ 4.40 and 4.45 are to be considered in conjunction with the diagnostic codes predicated on limitation of motion. Johnson v. Brown, 9 Vet. App. 7 (1996). Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. A VA examination is adequate only when the examiner discusses whether a loss in the range of motion is attributable to pain. See Mitchell, 25 Vet. App. at 43-44; DeLuca, 8 Vet. App. at 202. The examiner must also expressly comment on active and passive range of motion testing, and weight-bearing and non-weight-bearing described in the final sentence of 38 C.F.R. § 4.59. See Correia v. McDonald, 28 Vet. App. 158 (2016). Private treatment records from November 1995 showed diagnoses of chronic back pain, degenerative joint disease, and degenerative disc disease of the low back, with limited range of motion. An April 1997 private treatment record showed range of motion test included flexion to 40 degrees and extension to 20 degrees. The Veteran reported severe low back pain. SSA records did not provide any additional measurements for rating purposes during this period. The Veteran was afforded an initial VA examination in March 2011. He reported deep and dull low back pain that limited him for activities that required bending, carrying objects, prolonged standing, prolonged walking, and climbing stairs. The Veteran reported flare-ups that were severe and occurred weekly for hours at a time. He could not get out of bed during those episodes. He was able to walk more than 1/4 mile, but less than 1 mile. The examiner noted an antalgic gait and pain with motion; there was no muscle spasms, atrophy, or ankylosis. The examiner found guarding severe enough to cause abnormal gait. Range of motion testing showed flexion to 45 degrees and extension to 10 degrees, with pain on active range of motion. The Veteran could perform repetitive-use testing without additional limitations in motion. His nerves test results were normal. VA treatment records indicate that the Veteran was treated for low back pain and osteoarthritis. An October 2002 record showed forward flexion and extension were both to 30 degrees. In December 2002, his forward flexion was to 40 degrees. VA treatment records from 2002 to 2012 reflect his range of motion was limited, but no actual measurements were provided. An August 2012 VA treatment record showed that he had full range of motion. On March 19, 2018, the Veteran underwent another VA examination. He reported constant strong back pain with stiffness in his back and difficulty going from sitting to standing or bending forward. His back pain increased in intensity with prolonged sitting, standing, or walking. He reported flare-ups, especially with prolonged sitting, standing, walking, or bending. Range of motion testing showed flexion to 15 degrees and extension to 5 degrees. The Veteran had difficulty bending down to take off his socks and shoes at the examination and needed assistance. The examiner noted pain exhibited on all ranges of motion. There was no evidence of pain during weight-bearing testing. There was evidence of pain during passive range of motion testing and nonweight-bearing testing of the back. There was tenderness on palpation. The Veteran could perform repetitive-use testing and the examiner found no additional loss in range of motion after. The examiner found that pain and lack of endurance limited his functional ability with repeated use over a period of time. The examiner could not provide an additional functional limitation estimate, as the examination was not conducted during a flare-up or after a repeated-use over time situation. He had guarding and muscle spasms that did not result in an abnormal gait. No ankylosis was found. The examiner noted that he regularly used a cane and brace for his low back condition. IVDS was not diagnosed. Based on this examination report, the RO granted an increase and assigned a 40 percent evaluation, effective March 19, 2018. At a September 2018 VA contract examination, the Veteran reported onset of low back pain while being examined. He reported that he has an episode of pain exacerbation once a year. The Veteran reported flare-ups described as sharp, stabbing pain. He had difficulties standing, walking, lifting heavy items, bending, walking up or down stairs, and going from standing to sitting, and vice versa. Range of motion testing showed flexion to 30 degrees and extension to 10 degrees. The Veteran did not show pain on non-weight-bearing testing. The values were the same during the passive range of motion testing and active range of motion testing. The examiner noted that the Veteran’s limitations in range of motion occurred with prolonged sitting, standing, walking, bending, stooping, squatting, ramps, and with stairs. The examiner noted pain on all ranges of motion and tenderness upon palpation. There was pain with weight-bearing testing. The Veteran was able to perform repetitive-use testing with no additional loss in range of motion after three repetitions. Pain, fatigue, weakness, and lack of endurance significantly limit functional ability with repeated use over time. The examiner could not describe the loss of limitation in terms of range of motion, as the Veteran reported that after flare-ups, the loss of function and range of motion varied, depending on how strenuously he used his back that day. At worst, the Veteran reported not being able to move the back at all due to pain, weakness, fatigue, and lack of endurance. At other times, the Veteran reported minimal functional loss. He had muscle spasms that resulted in abnormal gait or abnormal spinal contour, but no guarding. No ankylosis was found. There was no IVDS. Based on the evidence, the Board finds higher ratings are not warranted. A 20 percent rating is assigned when forward flexion of the spine is greater than 30 degrees, but not greater than 60 degrees; a 40 percent rating is assigned when forward flexion is at 30 degrees or less or when favorable ankylosis of the entire thoracolumbar spine is shown. Prior to March 19, 2018, the evidence of record shows that the Veteran’s forward flexion was between 40 and 45 degrees, which more closely approximates the criteria for 20 percent. There is only one measurement of forward flexion at 30 degrees or less. While a single measurement can in some instances be enough to demonstrate the disability level for a stage, the Board finds that this particular single measurement is an outlier, and not representative of the Veteran’s general range of motion. Taken in context, the vast majority of the flexion measurements have been greater than 30 percent. The cumulative record reflects forward flexion was limited to less than 40 degrees only during the March 2018 VA examination. The Board has considered functional loss due to pain and other factors, but finds that even considering functional impairment his range of motion has not been shown to more closely approximate the degree of forward flexion required by the next highest rating. As the evidence demonstrates that the Veteran did not experience forward flexion that more closely approximated at least 30 degrees or less, and in the absence of ankylosis, a higher rating of 40 percent is not warranted under the General Formula. Also, the objective evidence fails to show a diagnosis of IVDS with incapacitating episodes lasting at least 4 weeks. Thus, a higher rating under the Formula for rating IVDS is also not appropriate. Separate ratings for neurological impairment are not warranted as the objective evidence failed to show any diagnosed radiculopathy or other bowel or bladder impairment related to the service-connected low back disorder during this period. Similarly, a rating higher than 40 percent from March 19, 2018, is not warranted. A higher rating in excess of 40 percent would require ankylosis, which has not been shown. See Johnston v. Brown, 10 Vet. App. 80, 84-5 (1997). IVDS with incapacitating episodes lasting at least 6 weeks also has not been shown. Thus, a higher rating is also not warranted on this basis. As for separately rating any associated objective neurologic abnormality, the evidence has shown nerve impairment involving both lower extremities. While the claim was on appeal, the RO granted separate, compensable ratings for radiculopathy of the right and left lower extremities in the March 2018 rating decision. As the Veteran has not disagreed with these initial ratings, higher ratings for neurologic impairment of the lower extremities is not before the Board. In short, the preponderance of the evidence is against the claim for an initial rating in excess of 20 percent prior to March 19, 2018, and 40 percent thereafter for the service-connected back disorder. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). There are no additional expressly or reasonably raised issues on the record. REASONS FOR REMAND Entitlement to an initial compensable rating for bilateral hearing loss. The Veteran seeks a higher rating for his bilateral hearing loss, which is currently assigned a noncompensable rating. The Veteran submitted private audiogram reports dated in July 1997, August 1999, December 2000, and September 2013. These were all completed by Dr. L.G.F., MS-CCC/A. The Board has reviewed the reports and notes that the December 2000, and September 2013 appear to show compensable degrees of hearing loss. See Kelly v. Brown, 7 Vet. App. 471 (1995) (interpretation of a graphical audiogram is a finding of fact, to be made by the Board in the first instance). However, it is unclear whether the Maryland CNC was used for the speech recognition tests that were included and whether the provider is a state-licensed audiologist. In Savage v. Shinseki, the United States Court held: “[I]n some circumstances, VA does have a duty to return for clarification unclear or insufficient private examination reports or VA progress notes.” 24 Vet. App. 259, 260 (2011). See Savage v. Shinseki, 24 Vet. App. 259, 260 (2011). The Court specifically identified unclear application of the Maryland CNC test as a circumstance warranting remand for clarification. Id. at 270. On remand, the Veteran is afforded the opportunity to provide such clarification. Entitlement to an initial rating in excess of 10 percent for a left knee disorder, is remanded. The Veteran, through his representative, asserted that his left knee disorder had worsened in severity since the last examination. See October 2018 Informal Hearing Presentation. Given the Veteran’s contentions, he should be scheduled for a VA examination to ascertain the current severity and occupational impact of his left knee disorder. 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159; see also Snuffer v. Gober, 10 Vet. App. 400, 403 (1997). The matter is REMANDED for the following action: 1. After obtaining any necessary information and authorization from the Veteran, attempt to obtain clarification from the provider who performed the July 1997, August 1999, December 2000, and September 2013 examinations as to whether it was performed by a state-licensed audiologist and whether the Maryland CNC test was used to obtain the speech recognition values. 2. Schedule a VA examination to determine the current nature and severity of his left knee disorder. The claims folder must be reviewed. The joints involved should be tested for pain and range of motion in active and passive motion, weight-bearing and non-weight-bearing conditions and, if possible, with the range of the opposite undamaged joint. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case he or she should clearly explain why that is so. The examiner is also asked to express an opinion as to whether pain, weakness, fatigability, or incoordination cause additional functional impairment after repeated use over time or during flare-ups. The examiner should assess additional functional impairment in terms of the degree of additional range of motion loss, if possible. If the Veteran is not being observed during a flare-up or after repeated use over time, the examiner should still estimate any additional functional impairment based on the evidence of record and the Veteran’s lay descriptions of repeated use or flare’ severity, frequency, duration, and/or functional loss manifestations. To be clear, the Veteran should be asked to give a lay description of such characteristics, and the examiner should consider his response in formulating the opinion. If it is not feasible to determine the extent to which the Veteran experiences additional functional loss on repeated use over time or during flare-ups without resorting to speculation, the examiner must provide an explanation for why this is so. D. JOHNSON Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Tang, Associate Counsel