Citation Nr: 20036735 Decision Date: 05/28/20 Archive Date: 05/28/20 DOCKET NO. 16-34 760 DATE: May 28, 2020 REMANDED The issue of entitlement to service connection for tinnitus is remanded. The issue of entitlement to service connection for a left knee disability is remanded. The issue of entitlement to an initial disability rating in excess of 10 percent for status post meniscectomy and anterior cruciate ligament repair of the right knee (right knee disability) is remanded. REASONS FOR REMAND The Veteran served on active duty from July 1998 to June 2002. In a January 2019 decision, the Board of Veterans’ Appeals (Board) denied the Veteran’s service connection claims for tinnitus and degenerative joint disease (DJD) of the left knee, as well as the claim seeking an initial rating in excess of 10 percent disabling for status-post meniscectomy and anterior cruciate ligament (ACL) repair of the right knee. He appealed that decision to the United States Court of Appeals for Veteran’s Claims (Court). By a November 2019 Order, the Court, pursuant to a Joint Motion for Partial Remand (JMPR), vacated the Board’s January 2019 decision of these issues and remanded the matter for further action consistent with the JMPR. The Board has broadened and re-characterized the service connection claim for degenerative joint disease of the left knee to a claim for a left knee disability based on the evidence of record. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). 1. The issue of entitlement to service connection for tinnitus is remanded. The Veteran was examined by the Department of Veterans Affairs (VA) in June 2014. Upon examination, the VA examiner acknowledged that he suffered from recurrent tinnitus. Nonetheless, the VA examiner opined that it was less likely than not caused by or otherwise related to his service. In the Joint Motion the parties agreed that the examiner’s rationale comparing tinnitus, a central nervous condition, to hearing loss, a disability from damage to an organ of special sense, is not a valid comparison. It was noted that the examiner failed to explain how objective evidence of the lack of significant threshold shifts in service, which relate to measuring hearing loss, was relevant to the issue of determining service connection for tinnitus, a subjective condition that may be established through lay observation alone. Thus, a remand is necessary for an addendum VA medical opinion. 2. The issue of entitlement to service connection for a left knee disability is remanded. The Veteran was afforded a VA examination with respect to this claim in July 2013. Upon examination, the VA examiner diagnosed him with degenerative joint disease status-post surgery of the left knee. Nevertheless, the VA examiner opined that it was less likely than not caused by or otherwise related to his service. In support, the VA examiner cited the lack of any service treatment records (STRs) documenting this condition in-service. In rendering this opinion, the VA examiner failed to consider his lay statements of record complaining of left knee pain since service. Cf. Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (2006); Saunders v. Wilkie, 886 F.3d 1356, 1364-68 (Fed. Cir. 2018). In the Joint Motion, the parties agreed that a new examination was necessary and that the examiner “shall” address the Veteran’s statements “concerning continuous symptoms of left knee pain since service.” 3. The issue of entitlement to an initial disability rating in excess of 10 percent for the right knee disability is remanded. In the Joint Motion for remand, the parties agreed that the Board erred when it relied on inadequate July 2013 and June 2014 VA examination reports because the examiner did not record any test results for the Veteran’s range of motion measurements on active or passive motion, or under weight-bearing or non-weight bearing situations as required by Correia v. McDonald, 28 Vet. App. 158 (2016); and Sharp v. Shulkin, 29 Vet. App. 26 (2017). As such a remand is necessary to obtain another VA examination. It was also noted that while an examiner noted that the Veteran experienced right knee flareups, but failed to estimate any functional loss, stating that it could not be determined without resorting to speculation. The parties noted that the examiner failed to provide any rationale for her inability to provided a medical opinion in terms of additional range of motion during a flare up, and failed to elicit information from the Veteran regarding the frequency, duration, characteristics, severity, or functional loss during a flareup. As another matter, the record suggests the Veteran may have received treatment for a right knee injury at the R.R.H. while in-service. However, no records from R.R.H. have been associated with the claims file and there is nothing of record demonstrating the VA has requested these records. Accordingly, a remand is also necessary to obtain treatment records from R.R.H. The matters are REMANDED for the following action: 1. Contact the Veteran in order to have him identify the names and addresses of all health care providers who have treated him for the issues on appeal. The Veteran should also be notified that he may submit evidence or treatment records to support his claim. The Board is particularly interested any outstanding records of VA medical treatment (generated after the last treatment notes of record) as well as the private treatment records from Ridgecrest Regional Hospital that were identified in the Joint Motion for Remand. The AOJ should attempt to obtain any such records. All efforts to obtain such records should be documented in the claims folder. All available records should be associated with the Veteran’s VA claims folder. 2. Once the action in paragraph one has been completed, to the extent possible, schedule the Veteran for an examination with an appropriate medical professional to determine the current nature and severity of his right knee disability. After reviewing the record, the examiner should: (a.) Conduct all tests and examinations deemed necessary, to include range of motion testing with active and passive motions as well as with weight-bearing and in non weight-bearing. If any motion cannot be tested, explain why. If factors, such as pain, weakness, fatigability or incoordination limit range of motion or functional ability, discuss its impact in terms of the severity, frequency and duration thereof. (b.) Determine whether the Veteran experiences any flare-up episodes or has any complaints with repeated use over time. If there is any additional limitation of motion during a flare-up or with repeated use over time, provide an estimate, in degrees if possible, of the limitation of motion. If unable to provide an estimate, explain why. If there is any additional limitation of function during a flare-up or with repeated use over time, discuss its impact in terms of its severity, frequency and duration. Specifically, if factors such as pain, weakness, fatigability or incoordination limit range of motion or functional ability during a flare-up or with repeated use over time, discuss its impact in terms of its severity, frequency and duration. If such factors do not limit range of motion or functional ability during a flare-up or with repeated use over time, explain why. If an opinion cannot be rendered without resorting to mere speculation, the examiner should state the same and explain why. 3. Once the request in paragraph one has been completed, to the extent possible, schedule the Veteran for an examination with an appropriate medical professional to determine the nature and etiology of his claimed left knee disability. After reviewing the record, the examiner should: (a.) Opine as to whether it is at least as likely as not (50 percent probability or greater) the Veteran’s claimed left knee disability was caused by or is otherwise related to his active duty service and explain why. (b.) To the extent the examiner determines the Veteran suffered from left knee pain without a specific underlying diagnosis in-service, which continued post-service, determine whether there is evidence the pain resulted in functional limitation to any degree. (c.) In rendering an opinion, the examiner should consider the March 2020 Visit Note from Dr. M.Y. which contains a positive nexus statement that the pain in the Veteran’s knees began during his years in-service. (d.) In rendering an opinion, the examiner should consider the Veteran’s relevant statements of record, to include his statements documented in a July 2018 VA Primary Care History and Physical Note that his bilateral knee pain began since “blowing out knee” in-service; and the March 2020 Visit Note from Dr. M.Y. that the problem with his knees started in-service due to playing sports and running while wearing boots. (e.) Pursuant to the Joint Motion, the examiner must comment on the Veteran’s lay statements of continuous symptoms of left knee pain since service. 4. Once the request in paragraph one has been completed, to the extent possible, obtain an addendum medical opinion from an appropriate medical professional regarding the nature and etiology of the Veteran’s claimed tinnitus. The need for another in-person examination is left to the discretion of the medical professional proffering the opinion. After reviewing the record, the examiner should: (a.) Opine as to whether it is at least as likely as not (50 percent probability or greater) the Veteran’s tinnitus was caused by or is otherwise related to his active duty service and explain why. (b.) In rendering an opinion, the examiner should consider the March 2020 Visit Note from Dr. M.Y. which contains a positive nexus statement finding the Veteran’s subjective complaints of tinnitus were related to his service. (c.) In rendering an opinion, if, and only if, a lack of hearing impairment or significant auditory threshold shifts in-service are found to be relevant to the Veteran’s claim for tinnitus, the examiner should explain why. (d.) In rendering an opinion, the examiner should consider the Veteran’s relevant lay statements of record. M. Donohue Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board G. Suh, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.