Citation Nr: 18153920 Decision Date: 11/28/18 Archive Date: 11/28/18 DOCKET NO. 08-26 013 DATE: November 28, 2018 ORDER Entitlement to service connection for a right knee disability, to include right knee patellofemoral syndrome (PFS), to include as secondary to service-connected left knee PFS is denied. New and material evidence not having been submitted, the claim for entitlement to service connection for an acquired psychiatric disability, to include bipolar disorder and depression, is not reopened. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is granted. REMANDED Entitlement to an initial disability rating for service-connected bilateral plantar fascitis in excess of 20 percent disabling for the period from September 29, 2006 to January 11, 2017, and in excess of 50 percent disabling thereafter, to include on an extraschedular basis, is remanded. Entitlement to a compensable rating for service-connected bilateral hearing loss is remanded. Entitlement to an initial disability rating in excess of 10 percent disabling for service-connected left knee PFS is remanded. FINDINGS OF FACT 1. An unappealed July 2010 rating decision declined to reopen a claim of service connection for an acquired psychiatric disability, to include bipolar disorder and depression, that had been previously denied, including by the Board, based essentially on a finding that such disability was not shown to be related to the Veteran’s service. 2. Evidence received since the July 2010 rating decision does not tend to relate the Veteran’s current acquired psychiatric disability to his service; does not relate to an unestablished fact necessary to substantiate the underlying claim of service connection; and does not raise a reasonable possibility of substantiating such claim. 3. A right knee disability, to include right knee PFS, did not manifest during service, arthritis of the right knee did not manifest within the first post-service year and the Veteran’s current right knee PFS is not shown to be related to, his service or to have been caused or aggravated by a service-connected disability. 4. The Veteran’s service-connected disabilities are reasonably shown to prevent him from obtaining or following substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for service connection for a right knee disability, to include right knee PFS, have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309, 3.310. 2. New and material evidence has not been received, and the claim of service connection for an acquired psychiatric disability, to include bipolar disorder and depression, may not be reopened. 38 U.S.C. §§ 5108, 7104, 7105; 38 C.F.R. § 3.156. 3. The criteria for a schedular TDIU have been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.340, 3.341, 4.3, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from July 1977 to October 1979. In a January 2012 decision, the Board denied an initial compensable disability rating for bilateral hearing loss; denied an initial evaluation in excess of 10 percent for bilateral plantar fasciitis for the period prior to September 29, 2006; denied an initial evaluation in excess of 20 percent for bilateral plantar fasciitis for the period from September 29, 2006; denied service connection for arthritis of the left knee; and denied service connection for arthritis of the bilateral feet. The issues of entitlement to an initial disability rating in excess of 10 percent for left knee PFS; entitlement to service connection for right knee disability, to include as secondary to the service-connected left knee PFS; and, entitlement to a TDIU rating were remanded to the RO for additional development. The Veteran thereafter appealed the Board’s January 2012 decision to the United States Court of Appeals for Veterans Claims (Court). A September 2012 Joint Motion for Partial Remand (JMPR) requested that the Court vacate the part of the Board’s decision, wherein it denied entitlement to an initial staged rating in excess of 20 percent for bilateral plantar fasciitis for the period from September 29, 2006. In September 2012, the Court promulgated an Order that granted the JMPR. Following the Court’s Order, in September 2013, the Board remanded the claim of entitlement to an initial disability rating in excess of 20 percent for bilateral plantar fasciitis for the period from September 29, 2006 to the RO for additional development. The requested development was accomplished and the matter was returned to the Board for further appellate consideration. In May 2017 the Board denied the Veteran’s claim for an increased rating for his service-connected tinnitus. In addition, the Board remanded the remaining claims for additional development, specifically for additional records and addendum opinions. The Board finds that there was substantial compliance with its May 2017 remand directives as they pertain the issues herein decided. A remand by the Board confers upon the claimant, as a matter of law, the right to compliance with the remand order. Stegall v. West, 11 Vet. App. 268 (1998). Nonetheless, it is only substantial compliance, rather than strict compliance, with the terms of a remand that is required. See D’Aries v. Peake, 22 Vet. App. 97, 104 (2008) (finding substantial compliance where an opinion was provided by a neurologist as opposed to an internal medicine specialist requested by the Board); Dyment v. West, 13 Vet. App. 141 (1999). Finally, in an October 2018 rating decision, the RO found clear and unmistakable error in the evaluation of the Veteran’s service-connected plantar fasciitis. Furthermore, the RO proposed that the evaluation be combined as a bilateral evaluation at 50 percent disabling. As the Veteran has not filed a disagreement, the issue is not before the Board at this time. Petition to Reopen Whether new and material evidence has been submitted, in order to reopen the claim for entitlement to service connection for an acquired psychiatric disability, to include bipolar disorder and depression. Generally, when a claim is disallowed, it may not be reopened and allowed, and a claim based on the same factual basis may not be considered. 38 U.S.C. § 7105. However, a claim on which there is a final decision may be reopened if new and material evidence is submitted. 38 U.S.C. § 5108. “New” evidence means existing evidence not previously submitted to agency decision-makers. “Material” evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156 (a). When determining whether the claim should be reopened, the credibility of the newly submitted evidence is to be presumed. Fortuck v. Principi, 17 Vet. App. 173, 179-80 (2003). The United States Court of Appeals for Veterans Claims (Court) has held that the requirement of new and material evidence raising a reasonable possibility of substantiating the claim is a low threshold. The Court interpreted the language of 38 C.F.R. § 3.156 (a), and viewed the phrase “raises a reasonable possibility of substantiating the claim” as “enabling rather than precluding reopening.” See Shade v. Shinseki, 24 Vet. App. 110 (2010). To substantiate a claim of service connection, there must be evidence of: a current claimed disability; incurrence or aggravation of a disease or injury in service; and a nexus between the disease or injury in service and the current disability. See Shedden v. Principi, 381 F.3d 1153, 1166-1167 (Fed. Cir. 2004). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303 (a). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). The Veteran’s claim for service-connection for an acquired psychiatric disability was initially denied by the RO in a May 2004 rating decision. The Veteran appealed the decision and in a December 2008 decision, the Board continued the prior denial finding that there was no evidence that the Veteran’s acquired psychiatric disability began in or was related to his service. Thereafter, he sought to reopen the claim and in a July 2010 rating decision, the RO continued to deny service connection for an acquired psychiatric disability finding that new and material evidence had not been submitted and therefore the prior denials were final and the claim remained closed. The Veteran did not appeal the July 2010 rating decision. Therefore, it became final based on the evidence of record, and is the last prior final decision in the matter. Evidence in the record at the time of the July 2010 decision consisted of the Veteran’s service treatment records (STRs), VA treatment records, VA examinations (October 2003 and April 2008, which found no relationship between the Veteran’s current acquired psychiatric disabilities and his service), and his own lay statements (alleging a relationship between his current acquired psychiatric complaints and his military service). Evidence received since the July 2010 decision includes updated VA and private treatment records, vocational, rehabilitation, and educational records, and an October 2013 VA examination (again finding no relationship between the Veteran’s current psychiatric symptoms and disabilities and his service). As the previous denial was based on a finding that the Veteran’s current acquired psychiatric disability was not shown to be related to service, for evidence to be new and material, it must address that unestablished fact (i.e., tend to show that a current psychiatric disability is related to service). No evidence received since July 2010 is new evidence that tends to do so. The only evidence received since the July 2010 decision that bears probatively on a nexus between the Veteran’s psychiatric disability and his service is the October 2013 VA examination. That opinion continues to find no nexus or relationship between the Veteran’s current disability and symptoms and his service. Therefore, the October 2013 opinion is cumulative evidence, and is not new. The Board finds that evidence received since the July 2010 denial does not present any new information relating to the unestablished fact (nexus to service) needed to substantiate the underlying claim of service connection for an acquired psychiatric disability, and does not raise a reasonable possibility of substantiating such claim. Accordingly, even under the low threshold standard for reopening claims endorsed by the Court in Shade, new and material evidence has not been received, and the claim of service connection for an acquired psychiatric disability, to include bipolar disorder and depression, may not be reopened. Service Connection Entitlement to service connection for a right knee disability, to include as secondary to service-connected left knee PFS. Service connection may be granted for disability due to disease or injury incurred in or aggravated by active military service. 38 U.S.C. §§ 1110; 38 C.F.R. § 3.303. Service connection may be granted for any disease initially diagnosed after discharge when the evidence establishes that the disability was incurred in service. 38 C.F.R. § 3.303 (d). Service connection may be established by showing continuity of symptomatology after discharge. 38 C.F.R. § 3.303 (b). Certain chronic diseases, to include arthritis, may be presumed to be service connected if manifested to a compensable degree within a specified period of time post-service (one year for arthritis). 38 U.S.C. § 1112; 38 C.F.R. §§ 3.307 (a)(3), 3.309(a). As previously noted, to substantiate a claim of service connection, there must be evidence of: (1) a current disability (for which service connection is sought); (2) incurrence or aggravation of a disease or injury in service; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated in service. Shedden, 381 F.3d at 1166-1167. The determination as to whether these requirements are met is based on an analysis of all evidence of record and an evaluation of its credibility and probative value. Baldwin, 13 Vet. App. at 1; 38 C.F.R. § 3.303 (a). The Veteran alternatively claims that his claimed disability is secondary to an already service-connected disability. Secondary service connection may be established for a disability that is proximately due to, the result of, or aggravated by a service-connected disease or injury. 38 C.F.R. § 3.310 (a); see also Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). To substantiate a secondary service connection claim, the Veteran must show: (1) a present disability (for which service connection is sought); (2) a service-connected disability; and (3) competent evidence that the service connected disability caused or aggravated the disability for which service connection is sought. The Veteran contends that he has a right knee disability, specifically PFS of the right knee as the result of his service. In the alternative, he alleges that his right knee PFS is secondary to his service-connected left knee disability. The Veteran’s STRs reflect one report of right knee pain. However, there was no evidence of any injury to the right knee. The Veteran was assessed with chondromalacia. On service separation, there was no evidence of any abnormalities, no musculoskeletal or orthopedic problems were noted. Post-service treatment records reflect a diagnosis of PFS of the right knee. However, there is no indication of a nexus between the Veteran’s current disability and his service or service-connected disabilities. In December 2009, the Veteran underwent a VA examination where the examiner noted a diagnosis of PFS of the right knee. The examiner found after a thorough review of the record that the Veteran’s PFS of the right knee was less likely as not related to his in-service complaints of right knee pain. The examiner provided the rationale that there was no chronicity of care since the time of the Veteran’s service. Furthermore, the Veteran stated that his right knee pain became significant 2 years prior in 2007, but that the Veteran was discharged in 1979. As previously noted, in January 2012 the Board remanded the Veteran’s claim so as to obtain a medical opinion which considered the Veteran’s allegation of secondary service connection. In March 2012 the Veteran underwent an additional VA examination. The examiner found “[t]hat the Veteran’s condition of no evidence for patellofemoral syndrome in the right knee was caused by or the result of or permanently aggravated beyond the normal course of the disease by his service-connected patellofemoral syndrome of the left knee since this condition is not found at this time and since the patellofemoral syndrome of the left knee has resolved without residuals.” The Board noted that the Court has held that the requirement that a claimant have a current disability before service connection may be awarded for that disability is also satisfied when a claimant has a disability at the time a claim for VA disability is filed or during the pendency of that claim, even if no disability is present at the time of the claims adjudication. McLain v. Nicholson, 21 Vet. App. 319 (2007). VA received the Veteran’s claim for service-connection for a right knee disorder in May 2008. Furthermore, as the above cited December 2009 examination disclosed that the Veteran had been found to have had right knee PFS during the pendency of the appeal, the Board found that the Veteran had a disability for the purposes of this adjudication. Therefore, as the Board found that the March 2012 examination was based, at least in part, on inaccurate information, it remanded the claim again in order to obtain an adequate examination. In May 2014, the Veteran underwent an additional examination. The examiner found that while the Veteran exhibited limitation of motion of the right knee, he did not find a right knee condition. The examiner noted that the Veteran’s X-rays were normal and therefore the examiner opined that the Veteran’s claimed right knee condition is not related to his service-connected left knee condition. The examiner provided the rationale that there was no evidence based in medicine to support a mechanism by which one joint becomes damaged by overcompensation for the contralateral foot condition. However, the examiner did not provide an opinion as to whether the Veteran’s right knee PFS had been aggravated by his service-connected left knee PFS. Therefore, in the Board’s May 2017 remand, the Board again ordered that an addendum opinion be obtained. In July 2018, the Veteran underwent another examination. The examiner opined that the Veteran’s right knee was less likely as not related to any event or injury in military service as there was no evidence of treatment for a right knee disability since the solitary complaint of pain in 1977. Furthermore, the examiner found that the Veteran’s right knee was less likely than not proximately due to or caused by the Veteran’s service-connected disability as there is nothing in the medical literature to support such a link. The examiner stated that the mechanism of one joint or the spine developing arthritis or other chronic conditions by overcompensation for another joint injury through limping has never been proven. And finally, the examiner found that the Veteran’s right knee PFS was not permanently aggravated beyond its natural progression by the Veteran’s service-connected left knee PFS as there was no evidence of any permanent aggravation or worsening of the right knee PFS beyond the normal disease progression in the record. It is not in dispute that the Veteran has right knee PFS. However, his STRs are silent for any injuries, complaints, or treatment related to such a diagnosis. Furthermore, despite one complaint of knee pain in service, his separation examination revealed no musculoskeletal or orthopedic abnormalities, complaints or conditions. Consequently, service connection for a right knee disability, to include right knee PFS on the basis that any was first manifested in service and has persisted or that currently diagnosed right knee PFS is directly related to an event or injury during service is not warranted. In addition, there is no allegation or evidence suggesting that any right knee arthritis currently exists, or was first manifested in the first post-service year; thus, service connection for such arthritis on a presumptive basis as a chronic disease under 38 U.S.C. § 1112 is not warranted. Furthermore, while the Veteran has alleged that his claimed right knee disability to include right knee PFS is directly related to his service, he has not presented anything supporting this theory of entitlement beyond his own allegation. As he is a layperson and whether or not there is the claimed nexus is a medical question, his own opinion has no probative evidence in this matter. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (2007). Furthermore, the VA examinations of record all found that the Veteran’s current right knee disability did not begin in and is not related to his service. Therefore, service connection for a right knee disability, to include right knee PFS on the basis that it began in service or is otherwise related to service is not warranted. Consequently, what remains for consideration is whether the Veteran’s current right knee disability, to include right knee PFS, is secondary to his service-connected left knee PFS. Again, the Veteran has presented no evidence to support this claim. Regardless, he is not competent to endorse a medical relationship between his claimed right knee disability and any service-connected disabilities; that is a medical question beyond the scope of lay observation. See Jandreau, 492 F.3d at 1377. Nothing in the medical evidence in the record suggests such a relationship could exist, and the July 2018 VA examiner specifically found that the Veteran’s right knee disability was not caused by or aggravated by his service-connected left knee disability. Therefore, service connection for a right knee disability on the basis that such is caused or aggravated by an already service-connected disability is also not warranted. Entitlement to a TDIU. The Veteran alleges that his service-connected disabilities render him unable to obtain and sustain gainful employment. A TDIU rating may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more disabilities, provided at least one is ratable at 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). For the purpose of meeting these schedular criteria, disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, if applicable; disabilities resulting from common etiology or a single accident; disabilities affecting a single body system, e.g. orthopedic, digestive, respiratory, cardiovascular-renal, neuropsychiatric; and multiple injuries incurred in action, will be considered as one disability. 38 C.F.R. § 4.16 (a). In considering whether TDIU is warranted, neither the veteran’s nonservice-connected disabilities nor his age may be considered. 38 C.F.R. § 4.19. The ultimate question is whether the veteran is capable of performing the physical and mental acts required by employment. Van Hoose v. Brown, 4 Vet. App. 361 (1993). Here, the Veteran’s service-connected disabilities include plantar fasciitis of the left foot (rated as 10 percent from December 15, 2003, 20 percent from September 29, 2006, and 50 percent from January 12, 2017); plantar fasciitis of the right foot (rated as 10 percent from December 15, 2003, 20 percent from September 29, 2006, and 50 percent from January 12, 2017); pseudofolliculitis barbae (rated as 10 percent from July 31, 2003, and 30 percent from May 30, 2008); chronic left patellofemoral syndrome (rated as 10 percent from April 25, 2003); tinnitus (rated as 10 percent from February 19, 2004); and bilateral hearing loss (rated as noncompensable from April 25, 2003). As of April 25, 2003, the Veteran’s combined evaluation was 10 percent; as of July 31, 2003, it was 20 percent; as of December 15, 2003, it was 40 percent with the bilateral factor; as of September 29, 2006, it was 60 percent with the bilateral factor; as of May 30, 2008, it was 70 percent with the bilateral factor; and as of January 12, 2017, it was 90 percent with the bilateral factor. Thus, the schedular criteria for TDIU are met, and the only question is whether such rating is substantively warranted. As noted in the introduction, in an October 2018 rating decision, the RO found CUE in the prior evaluation of the Veteran’s service-connected plantar fasciitis. The RO proposed to combine the Veteran’s rating into a single 50 percent bilateral evaluation. While the appeal period for this rating decision is still pending, such would impact the Veteran’s overall rating by reducing it to 80 percent from 90. Therefore, the Veteran would still meet the schedular criteria for a TDIU. Post-service treatment records reflect the Veteran’s complaints of and treatment for daily bilateral foot pain as well as bilateral knee pain. In addition to treatment records, the Veteran’s post-service records include Vocational Rehabilitation and Education (VRE) records. It was concluded that the Veteran’s previous work was in respiratory therapy and that he was not able to stand or walk for the amount of time required for his previous position. Furthermore, it was noted that the Veteran “lacks transferable vocational skills” and that the Veteran is in chronic pain which impairs his ability to concentrate and focus. In addition, the counselor noted that the Veteran’s service-connected disabilities “limit his capacity for work activities” which have physical requirements. Specifically, the Veteran was not able to bear weight on his knee, kneel, twist his knee, had difficulty with stairs, and was unable to stand for long periods of time or walk long distances. In April 2009, the Veteran underwent a VA audiological examination. The examiner found that the Veteran’s hearing impairment would have significant effects on his occupation. In March 2012 the Veteran underwent additional VA examinations. The audiological examiner opined that the Veteran’s hearing loss and tinnitus would not render him unable to secure and maintain substantially gainful employment, to include physical and sedentary employment. The examiner stated that his opinion was supported by the Veteran’s ability to perform his duties as an occupational therapist until his retirement as well as the Veteran’s statement that his claim for unemployability was due to his other service-connected disabilities. In addition, the Veteran underwent various other examinations to include skin disease, knee and lower leg, flatfoot as well as a general medical examination. The examiner stated that the Veteran reported that he could not work due to his knees and feet. However, the examiner opined that the Veteran was able to secure and maintain gainful employment in any capacity requiring sedentary or physical labor. He stated that it was less likely than not that the Veteran’s service-connected conditions rendered him unable to secure or maintain substantially-gainful employment. In May 2013 a vocational opinion was obtained with an addendum in July 2015. The examiner after reviewing the Veteran’s records as well as interviewing the Veteran, found that the Veteran was unable to secure and follow substantially gainful employment, to include sedentary employment since 1998, due solely to his service-connected conditions. Furthermore, the examiner stated that as it pertains to sedentary employment, that the Veteran did not possess the vocational preparation for sedentary work. In May 2014 the Veteran underwent VA examinations for his feet and his knees. The examiner noted pain on use of both feet, and the Veteran’s need for orthotics as assistive devices for relief of his symptoms. During the physical examination, the examiner noted pain and flare-ups which contributed to functional loss of the Veteran’s feet. During the knee examination, the examiner also noted flare-ups that impacted the function of both knees and functional loss and impairment of the knees with less movement than normal and pain on movement. The examiner noted that the Veteran used a cane and braces on a regular basis. However, the examiner opined that the Veteran’s conditions would only impact his ability to work by preventing heavy manual labor and not medium, light or sedentary work. In June 2015, the Veteran underwent an additional VA audiological examination. The examiner noted that the Veteran’s hearing impairment did impact his conditions of daily living as well as his ability to work. In January 2017 the Veteran underwent a VA Foot Conditions examination. The examiner found that the Veteran’s bilateral foot disability impacted his ability to perform occupational tasks. Specifically, the examiner noted that it was his medical opinion that the Veteran has functional limitations which limited his ability to perform tasks that required prolonged standing or walking. In July 2018 the Veteran underwent another VA Knee and Lower Leg Conditions examination. However, the examiner did not discuss how the Veteran’s service-connected knee impacted his ability to work. The Veteran reported that over the years he worked as a respiratory therapist and a security guard. The Veteran has a high school education, but no higher education or additional or specialized training. In light of the above, the Board finds that the evidence reasonably shows that the Veteran’s service-connected disabilities preclude obtaining or following substantially gainful employment. While the Board is cognizant that the March 2012 and May 2014 VA examiners found that the Veteran’s conditions would not preclude him from obtaining and sustaining gainful employment, the vocational experts’ opinions of record are contrary to those. Furthermore, the majority of the remaining evidence of record, supports the Veteran’s contentions. In addition, the Veteran’s training and education do not prepare the Veteran for a sedentary or skilled position. Therefore, the Board finds that in light of the evidence of record and the Veteran’s training and education a TDIU is warranted. REASONS FOR REMAND Although the Board regrets the additional delay, another remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran’s claims so that he is afforded every possible consideration. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. In addition, where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance. Stegall, 11 Vet. App. at 271. Entitlement to an initial disability rating for service-connected bilateral plantar fascitis in excess of 20 percent disabling for the period from September 29, 2006 to January 11, 2017, and in excess of 50 percent disabling thereafter, to include on an extraschedular basis. The Veteran alleges that his service-connected bilateral plantar fascitis warrants higher ratings than those currently assigned, to include consideration for an award on a extraschedular basis. The Board notes that in the prior May 2017 remand, it noted that in the January 2017 rating action, the RO granted an increased 50 percent rating to the service-connected bilateral plantar fasciitis. In its analysis of the claim, the RO indicated that “[t]his is the highest schedular evaluation allowed under the law for flatfoot, acquired.” In a January 2017 SSOC, the RO simply referenced the January 2017 rating action. The Board further noted, that while the 50 percent rating assigned to the service-connected bilateral plantar fasciitis is the maximum rating under the schedular criteria used for the disability, there was no discussion or consideration of a higher rating on an extraschedular basis. The Board ordered that on remand extraschedular consideration be given to the Veteran’s claim and that an SSOC discussing such should be issued. The Board notes that the matter of an extraschedular rating has not yet been referred to the VA Director of Compensation for initial consideration pursuant to 38 C.F.R. § 3.321 (b)(1). Therefore, on remand such should be done. Entitlement to a compensable rating for service-connected bilateral hearing loss. Relevant to the Veteran’s claim for an increased rating for his bilateral hearing loss, the Court has held that, where the record does not adequately reveal the current state of claimant’s disability, fulfillment of the statutory duty to assist requires a contemporaneous medical examination, particularly if there is no additional medical evidence that adequately addresses the level of impairment of the disability since the last examination. Allday v. Brown, 7 Vet. App. 517, 526 (1995). The record reflects that the Veteran was most recently afforded a VA Hearing Loss and Tinnitus examination in June 2015. The Board finds that a contemporaneous examination is necessary as the Veteran has alleged significantly worsening symptoms since his last VA examination. Specifically, the Veteran has alleged that his condition is far worse than is represented by his current rating. Therefore, the Board finds that a remand is required in order to determine the Veteran’s current level of impairment with regard to his service-connected bilateral hearing loss. See Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994); VAOPGCPREC 11-95 (1995). Entitlement to an initial disability rating in excess of 10 percent disabling for service-connected left knee PFS. As noted in the prior May 2017 remand, the Veteran was previously afforded VA examinations in December 2009 and May 2014. However, the United States Court of Appeals for Veterans Claims has held that “to be adequate, a VA examination of the joints must, wherever possible, include the results of the range of motion testing described in the final sentence of” 38 C.F.R. § 4.59 (2017). See Correia v. McDonald, 28 Vet. App. 158 (2016). The referenced portion of 38 C.F.R. § 4.59 states that “[t]he joints involved should be tested for pain on both active and passive motion, in weight-bearing and non-weight-bearing and, if possible, with the range of the opposite undamaged joint.” The Board found that the prior VA examinations did not comply with Correia and as such, a remand was required so that the Veteran could be afforded a new VA examination that contained adequate information under Correia. In July 2018, the Veteran underwent an additional VA examination. While the examiner noted pain with weight bearing, rest, and with both flexion and extension range of motion testing, and specifically found objective evidence of pain on passive range of motion testing, and with non-weight bearing, the examiner did not specify active motion testing. Therefore, on remand an addendum opinion which specifically addresses active motion in addition to the other Correia factors, should be obtained. Due to the amount of time which will pass on remand, updated treatment records should be obtained and associated with the record. The matters are REMANDED for the following action: 1. Obtain updated treatment records. 2. Schedule the Veteran for a VA examination to determine the current severity of his service-connected bilateral hearing loss. The claims file must be made available to the examiner. 3. Schedule the Veteran for a VA examination to determine the current severity of his left knee disability. The claims file must be made available to the examiner. The examination must include range of motion studies. In reporting the range of motion findings, the examiner must comment on the extent of any painful motion, functional loss due to pain, weakness, excess fatigability, and additional disability during flare-ups. If the examiner is not able to determine the additional range-of-motion loss due to the above functional factors without resort to speculation, a full basis for this conclusion must be provided. The examiner should also state what evidence would allow for such an opinion. The joints must be tested for pain on both active and passive range of motion with weight bearing and non-weight-bearing. See Correia, 28 Vet. App. at 158. 4. Once the above development is completed, forward the entire record with a full statement outlining the pertinent evidence and other factors in the matter of the ratings for the Veteran’s service-connected bilateral plantar fascitis in a referral to the VA Director of Compensation for extraschedular consideration of whether extraschedular ratings may be warranted. L. M. BARNARD Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Unger, Associate Counsel