Citation Nr: 21061387 Decision Date: 10/01/21 Archive Date: 10/01/21 DOCKET NO. 17-33 993 DATE: October 1, 2021 ORDER A 10 percent rating for cervical strain condition is granted. Service connection for left ear hearing loss is granted. Service connection for lumbosacral strain is granted. Service connection for left knee strain is granted. Service connection for right knee strain is granted. Service connection for left shoulder strain is granted. Service connection for right shoulder strain is granted. REMANDED A rating in excess of 10 percent for cervical condition is remanded. Service connection for right ear hearing loss is remanded. Service connection for short-term memory loss is remanded. Service connection for headaches is remanded. Service connection for fatigue is remanded. Service connection for respiratory symptoms is remanded. FINDINGS OF FACT 1. Resolving all doubt in the Veteran's favor, the Veteran's cervical condition shows at least painful motion and corresponding functional impairment, results in a disability analogous to limitation of flexion greater than 30 degrees but not greater than 40 degrees. 2. Resolving all doubt in the Veteran's favor, the record shows that the Veteran's left ear hearing loss is related to service. 3. Resolving all doubt in the Veteran's favor, the record shows that the Veteran's lumbar condition is related to service. 4. Resolving all doubt in the Veteran's favor, the record shows that the Veteran's bilateral knee condition is related to service. 5. Resolving all doubt in the Veteran's favor, the record shows that the Veteran's bilateral shoulder condition is related to service. CONCLUSIONS OF LAW 1. The criteria for a rating of at least 10 percent for cervical condition have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.71a, Diagnostic Code (DC) 5237. 2. The criteria to establish service connection for left ear hearing loss have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. 3. The criteria to establish service connection for lumbar condition have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. 4. The criteria to establish service connection for left knee have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. 5. The criteria to establish service connection for right knee have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. 6. The criteria to establish service connection for left shoulder have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. 7. The criteria to establish service connection for right shoulder have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Marine Corps from February 2003 to March 2012, including service in Iraq from January to September 2009. In December 2019, the Veteran's representative requested the cancellation of the his requested Board hearing. Thus, the matter will be adjudicated with the evidence on file. The Veteran's claim of service connection for short-term memory loss has been recharacterized to include all mental health disabilities in accordance with Clemons v. Shinseki, 23 Vet. App. 1 (2009). Increased Rating Ratings are based on a schedule of reductions in earning capacity from specific injuries or combination of injuries. The ratings shall be based, as far as practicable, upon the average impairments of earning capacity resulting from such injuries in civil occupations. 38 U.S.C. § 1155. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1. The provisions of 38 C.F.R. § 4.59, which relate to painful motion, are not limited to arthritis and must be considered when raised by the claimant or when reasonably raised by the record. Burton v. Shinseki, 25 Vet. App. 1 (2011). Where there is a question as to which of two evaluations shall be 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. When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 U.S.C. § 5107 (b); 38 C.F.R. §§ 3.102, 4.3. The Board will consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the course of the claim on appeal. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2009). The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that that Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C. § 7104 (a) (West 2002). Moreover, the United States Court of Appeals for Veterans Claims (Court) has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). Effective February 7, 2021, VA revised the criteria for evaluating musculoskeletal disorders. See Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76464 (Nov. 30, 2020); Correction, 86 Fed. Reg. 8142, 8143 (Feb. 4, 2021) (changing new diagnostic code applicable to plantar fasciitis from 5285 to 5269). VA's General Counsel has held that where a law or regulation changes during the pendency of a claim for a higher rating, the Board must first determine whether the revised version is more favorable to the veteran. In so doing, it may be necessary for the Board to apply both the old and new versions of the regulation. If the revised version of the regulation is more favorable, the retroactive reach of that regulation under 38 U.S.C. § 5110(g) can be no earlier than the effective date of that change. The Board must generally apply both the former and the revised versions of the regulation for the period prior and subsequent to the regulatory change, but an effective date based on the revised criteria may be no earlier than the date of the change. VA thus must consider the claim for a higher rating pursuant to the former and revised regulations during the latter part of this appeal. See VAOPGCPREC 3 2000, 65 Fed. Reg. 33,422 (2000); DeSousa v. Gober, 10 Vet. App. 461, 467 (1997). Therefore, the Board will consider the Veteran's claim under the old criteria prior to February 7, 2021 and both the old and new rating criteria from February 7, 2021. The criteria that is more favorable to the Veteran will be applied. In this regard, the Board observes that former regulation 38 C.F.R. § 19.9(b)(2) (now renumbered as 38 C.F.R. § 20.904(d)(2)) provided that the Board has the authority to consider appeals in light of laws, including but not limited to statutes, regulations and court decisions that were not previously considered by the agency of original jurisdiction. In Disabled American Veterans v. Sec of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003), the United States Court of Appeals for the Federal Circuit (Federal Circuit) specifically upheld the validity of 38 C.F.R. § 19.9(b)(2) (now as noted renumbered as 38 C.F.R. § 20.904(d)(2)). Id. at 1349. As such, pursuant to 38 C.F.R. § 20.904(d)(2), the Board will proceed to adjudicate the Veteran's claim. 1. Cervical condition The Veteran is currently rated at 0 percent under DC 5237 for his service-connected cervical strain. The Veteran reports that a higher rating is warranted. Under the general rating formula for diseases and injuries of the cervical spine, a 10 percent rating requires that the condition be manifested by forward flexion of the cervical spine greater than 30 degrees but not greater than 40 degrees; or, the combined range of motion of the cervical spine greater than 170 degrees but not greater than 335 degrees; or, muscle spasm, guarding or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height. A 20 percent rating requires that the condition be manifested by forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees; or, the combined range of motion of the cervical spine not greater than 170 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 30 percent rating requires that the condition be manifested by forward flexion of the cervical spine 15 degrees or less; or, favorable ankylosis of the entire cervical spine. A 40 percent rating requires unfavorable ankylosis of the entire cervical spine. The Board finds that the Veteran's neck condition more nearly approximates a 10 percent rating. Throughout the appeal, he reported his neck condition has gotten worse with pain, stiffness, aching, limitation of motion and occasional catch. Further, he complains about flare ups and functional impairment limiting his daily activities. The Board finds that the Veteran's neck condition more nearly approximates the criteria of a 10 percent rating when considering these reports of worsening pain with activity, flare ups, functional loss, use of pain medication, and the lay and medical evidence of record. Burton. Service Connection In general, service connection may be granted for a disability or injury incurred in or aggravated by active military service. See 38 U.S.C. § 1110; 38 C.F.R. § 3.303. To prevail on a direct service connection claim, there must be competent evidence of (1) a current disability, (2) an in-service incurrence or aggravation of a disease or injury, and (3) a nexus between the in-service disease or injury and the current disability. See Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Service connection may also be established by credible lay evidence and medical evidence provided by the Veteran or otherwise. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Further, the Veteran in this case served in Iraq during the Gulf War. Under 38 U.S.C. § 1117(a)(1), compensation is warranted for a Persian Gulf veteran who exhibits objective indications of a "qualifying chronic disability" that became manifest during service on active duty in the Armed Forces in the Southwest Asia theater of operations during the Persian Gulf War, or to a degree of 10 percent during the presumptive period prescribed by the Secretary. To constitute a "qualifying" chronic disability, the chronic disability must not be attributed to any known clinical disease by history, physical examination, or laboratory tests. See 38 U.S.C. § 1117; 38 C.F.R. § 3.317(a)(1). The term "objective indications of chronic disability" includes both "signs," in the medical sense of objective evidence perceptible to an examining physician, and other, non-medical indicators that are capable of independent verification. See 38 U.S.C. § 1117; 38 C.F.R. § 3.317(a)(3). Signs or symptoms which may be manifestations of undiagnosed illness or medically unexplained chronic multi-symptom illness include, but are not limited to: Fatigue, signs or symptoms involving skin, headache, muscle pain, joint pain, neurologic signs and symptoms, neuropsychological signs or symptoms, signs or symptoms involving the respiratory system (upper or lower), sleep disturbances, gastrointestinal signs or symptoms, cardiovascular signs or symptoms, abnormal weight loss, menstrual disorders. See 38 U.S.C. § 1117; 38 C.F.R. § 3.317(b). A qualifying chronic disability means a chronic disability resulting from any of the following (or any combination of the following): An undiagnosed illness; the following medically unexplained chronic multi-symptom illnesses that are defined by a cluster of signs or symptoms: Chronic fatigue syndrome; Fibromyalgia; Irritable bowel syndrome; Any diagnosed illness that the Secretary determines warrants a presumption of service-connection; or Any other illness that the Secretary determines meets the following criteria for a medically unexplained chronic multi-symptom illness. See 38 U.S.C. § 1117; 38 C.F.R. § 3.317(a)(2). The term medically unexplained chronic multi-symptom illness means a diagnosed illness without conclusive pathophysiology or etiology, that is characterized by overlapping symptoms and signs and has features such as fatigue, pain, disability out of proportion to physical findings, and inconsistent demonstration of laboratory abnormalities. Chronic multi-symptom illnesses of partially understood etiology and pathophysiology will not be considered medically unexplained. See 38 U.S.C. § 1117; 38 C.F.R. § 3.317(a)(2). Disabilities that have existed for 6 months or more and disabilities that exhibit intermittent episodes of improvement and worsening over a 6-month period will be considered chronic. The 6-month period of chronicity will be measured from the earliest date on which the pertinent evidence establishes that the signs or symptoms of the disability first became manifest. A chronic disability resulting from an undiagnosed illness shall be rated using evaluation criteria from part 4 of this chapter for a disease or injury in which the functions affected, anatomical localization, or symptomatology are similar. A disability shall be considered service connected for purposes of all laws of the United States. See 38 U.S.C. § 1117; 38 C.F.R. § 3.317(a)(4). The applicable presumptive period specified in 38 C.F.R. § 3.317(a)(1)(i) has been extended several times and it currently ends December 31, 2021. Compensation shall not be paid if there is affirmative evidence that an undiagnosed illness was not incurred during active military, naval, or air service in the Southwest Asia theater of operations during the Persian Gulf War; or if there is affirmative evidence that an undiagnosed illness was caused by a supervening condition or event that occurred between the veteran's most recent departure from active duty in the Southwest Asia theater of operations during the Persian Gulf War and the onset of the illness; or if there is affirmative evidence that the illness is the result of the veteran's own willful misconduct or the abuse of alcohol or drugs. See 38 U.S.C. § 1117; 38 C.F.R. § 3.317(c). The United States Court of Appeals for the Federal Circuit held that "pain in the absence of a presently-diagnosed condition can cause functional impairment," which may qualify as a "disability" for VA compensation purposes. Saunders v. Wilkie, 886 F.3d 1356, 1368 (Fed. Cir. 2018). The Federal Circuit in Saunders, however, cautioned against the notion that "a veteran could demonstrate service connection simply by asserting subjective pain" because, to establish that a disability is present, the veteran "will need to show that... pain reaches the level of a functional impairment of earning capacity." Id. at 1367-68. "Functional impairment," the Federal Circuit noted, is defined as the inability of the body or a constituent part of it "to function under the ordinary conditions of daily life including employment." Id. at 1363 (quoting 38 C.F.R. § 4.10). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. See Alemany v. Brown, 9 Vet. App. 518 (1996). Determinations as to service connection will be based on review of the entire evidence of record, to include all pertinent medical and lay evidence, with due consideration to VA's policy to administer the law under a broad and liberal interpretation consistent with the facts in each individual case. See 38 U.S.C. § 1154 (a); 38 C.F.R. § 3.303 (a). 2. Left ear hearing loss The Veteran reports that he is entitled to service connection for bilateral hearing loss. In support, the Veteran reports diminished hearing during and since service, which he attributes to hazardous noise exposure during military service. The Veteran reported that he was exposed to acoustic trauma from the airwing during service. Indeed, VA conceded hazardous noise exposure during service. VA may only find hearing loss to be a disability when the auditory threshold in any of the frequencies of 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; when the auditory thresholds for at least three of the frequencies of 500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC test are less than 94 percent. See 38 C.F.R. § 3.385. The Veteran was diagnosed with left ear hearing loss, which meets the criteria for VA hearing loss as a disability. See VA medical examination (May 2016); and see also 38 C.F.R. § 3.385. Thus, the Veteran has a current condition and establishes the first element for service connection. The Board acknowledges that the May 2016 VA examiner noted that the Veteran had a diagnosis of left ear hearing loss but not for VA purposes. See VA medical examination (May 2016). However, the same examination shows a decibel (dB)loss at the puretone threshold of 500 Hertz (Hz) is 15, with a 20 dB loss at 1000 Hz, a 30 dB loss at 2000 Hz, a 40 dB loss at 3000 Hz, and a 35 dB loss at 4000 Hz, thus confirming a hearing loss disability on his left ear for VA purposes. Id; see also 38 C.F.R. § 3.385. Moreover, the medical and lay evidence, shows that the Veteran was exposed to acoustic trauma in service and a hearing disability has been present ever since. Further, the record shows that VA conceded such exposure in service and while in deployment. In light of the forgoing, the Board finds that the medical and lay evidence shows that the Veteran's left ear hearing loss condition had its onset in service and have been recurrent since that time. Resolving all reasonable doubt in the Veteran's favor, the Board finds that the Veteran's left ear hearing loss had its onset during his military service. As such, service connection is granted. See 38 C.F.R. § 3.303(a). The Veteran's right ear hearing loss disability will be addressed in the remand part of this decision. 3. Lumbar condition The Veteran reports that service connection is warranted for his lumbar condition because the disability started in service and has continued thereafter. In support, he reported having back problems after an injury in service where he received medical treatment. See DRO hearing transcript (May 2016). Additionally, he continued having back problems thereafter with treatment. Indeed, his service treatment record (STR) and medical record shows that he suffered from back problems, symptoms and functional impairment in service and received medical treatment during service and thereafter. See STR (January 2012); see also VA medical treatment record (April 2015). The Veteran has been diagnosed as having a lumbosacral strain. See VA medical examination (December 2014). Thus, the Veteran has a current condition and establishes the first element for service connection. Additionally, the Veteran's STR and medical record shows back problems and functional impairment with treatment in service and thereafter. The Board acknowledges that on January 2015 a VA examiner provided a negative nexus opinion on the relation of the Veteran's lumbar condition to service. However, consistent with the Veteran's reports, the evidence on record shows that the Veteran's back disability is related to service. The Board finds that the medical and lay evidence linking the Veteran's lumbar disability to service is probative, competent and credible. Indeed, the Veteran's medical record shows back problems in service and thereafter. The evidence shows that the Veteran's back disability is related to service, thus, service connection is warranted. See Flynn v. Brown, 6 Vet. App. 500, 503 (1994) (noting that "the element of cause and effect has been totally by-passed in favor of a simple temporal relationship between the incurrence of the disability and the period of active duty"); see also 38 C.F.R. § 3.303(a) (Service connection connotes many factors but basically it means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces). The Veteran is competent to report his back symptoms that began in service and the Board finds the Veteran's statements credible. See 38 C.F.R. § 3.159 (a)(2); Washington v. Nicholson, 19 Vet. App. 362, 368 (2005); Layno. The Board finds that the lay evidence is consistent with other evidence of record, both medical and lay, and further finds that it is competent and credible. Given the competent lay and medical evidence linking the onset of the Veteran's back disability to service, and resolving all reasonable doubt in the Veteran's favor, the Board finds that service connection for the Veteran's back disability is warranted because his back disability had its onset during his period of military service. As such, service connection for back disability, diagnosed as lumbosacral strain, is granted. See 38 C.F.R. § 3.303. 4. Bilateral knee condition The Veteran seeks service connection for his bilateral knee condition. In support, the Veteran reported having bilateral knee problems in service and thereafter. The Veteran has a diagnosis of bilateral knee strain. See VA medical examination (December 2014). Thus, the first element of service connection is met. Throughout the appeal, the Veteran has stated that his bilateral knee condition has been recurrent since service. The Board acknowledges that on January 2015 a VA examiner provided a negative nexus opinion on the relation of the Veteran's knees condition to service. However, consistent with the Veteran's reports, the evidence on record shows that the Veteran's disability on his knees is related to service. The Board finds that the medical and lay evidence linking the Veteran's bilateral knee disability to service is probative, competent and credible. Indeed, the record shows knee problems in service and treatment thereafter at VA. See STR (January 2012); see also VA medical treatment record (December 2014 and April 2015). The evidence shows that the Veteran's bilateral knee disability is related to service, thus, service connection is warranted. See Flynn v. Brown, 6 Vet. App. 500, 503 (1994) (noting that "the element of cause and effect has been totally by-passed in favor of a simple temporal relationship between the incurrence of the disability and the period of active duty"); see also 38 C.F.R. § 3.303(a) (Service connection connotes many factors but basically it means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces). The Board finds the Veteran's statements and medical records credible in showing that his bilateral knee condition is related to service. The Veteran is competent to report his bilateral knee symptoms that began in service and the Board finds the Veteran's statements credible. See 38 C.F.R. § 3.159 (a)(2); Washington v. Nicholson, 19 Vet. App. 362, 368 (2005); Layno. The Board finds that the lay evidence is consistent with other evidence of record, both medical and lay, and further finds that it is competent and credible. Thus, service connection is warranted for his bilateral knee condition. In light of the competent lay and medical evidence linking the Veteran's bilateral knee disability to service, the Board finds that the Veteran's bilateral knee disability had its onset during his period of military service. As such, service connection is granted. See 38 C.F.R. § 3.303(a). 5. Bilateral shoulder condition The Veteran seeks service connection for his bilateral shoulder condition. In support, he reported that he started having problems with his shoulders in service due to motor vehicle accident and during an exercise regimen while deployed to Iraq. See STR (November 2004); see also VA medical treatment record (September 2012). The Veteran was diagnosed with bilateral shoulder strain. See VA medical examination (December 2014). Thus, the Veteran has a current condition in his shoulders and establishes the first element for service connection. Additionally, the Veteran's service treatment record shows he was treated for his shoulder pain in service and immediately after service at the VA. See STR (November 2004 and January 2012); see also VA medical treatment record (September 2012 and December 2012). The Board acknowledges that on January 2015 a VA examiner provided a negative nexus opinion on the relation of the Veteran's shoulders condition to service. However, consistent with the Veteran's reports, the evidence on record shows that the Veteran's disability on his shoulders is related to service. The Veteran's records show complaints of bilateral shoulder pain and treatment. Further, the Veteran provided testimony explaining the onset of his condition in service and treatment thereafter. See DRO hearing transcript (May 2016). The evidence shows that the Veteran's bilateral shoulder disability is related to service, thus, service connection is warranted. See Flynn v. Brown, 6 Vet. App. 500, 503 (1994) (noting that "the element of cause and effect has been totally by-passed in favor of a simple temporal relationship between the incurrence of the disability and the period of active duty"); see also 38 C.F.R. § 3.303(a) (Service connection connotes many factors but basically it means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces). The Board finds that the evidence linking the Veteran's bilateral shoulder condition to service is probative, competent and credible. Further, the Board also finds that the competent and credible medical and lay evidence, including the Veteran's testimony shows that his bilateral shoulder problems began during service and have been recurrent since that time. See DRO hearing transcript (May 2016). The Veteran is competent to report his bilateral shoulder symptoms that began in service and the Board finds the Veteran's statements credible. See 38 C.F.R. § 3.159 (a)(2); Washington v. Nicholson, 19 Vet. App. 362, 368 (2005); Layno. The Board finds that the medical and lay evidence is consistent with other evidence of record, and further finds that it is competent and credible. REASONS FOR REMAND The Veteran seeks an increased rating for his service-connected cervical condition. The Board notes that the latest medical examination was performed in December 2014 and does not reflect the current impact and severity of his cervical condition. See VA medical examination (December 2014). Further, the Veteran reported that his neck condition has worsen and the medical evidence in this period does not show relevant information or an opinion regarding the Veteran's flare ups and functional loss. See DRO hearing transcript (May 2016). Thus, the Board finds that a medical opinion is warranted, in compliance with Sharp, to address the current severity of his cervical condition. The United States Court of Appeals for Veterans Claims (Court) issued the decision in Sharp v. Shulkin, 29 Vet. App. 26 (2017) concerning the adequacy of VA orthopedic examinations. In Sharp, the Court held that before a VA examiner opines that he or she cannot offer an opinion as to additional functional loss during flare-ups without resorting to speculation based on the fact that the examination was not performed during a flare, the examiner must "elicit relevant information as to the veteran's flares or ask him to describe the additional functional loss, if any, he suffered during flares and then estimate the veteran's functional loss due to flares based on all the evidence of record, including the veteran's lay information, or explain why he could not do so. In addition, the Veteran asserts that service connection for right ear hearing loss, short term memory loss, headaches, fatigue and respiratory condition is warranted since they are related to service and his service-connected disabilities. See VA Form 9 (June 2017). As to his right ear loss right ear hearing loss, the latest VA examination was performed in May 2016 and the Veteran was diagnosed with right ear hearing loss but not for VA purposes. However, the Board finds that the latest VA examination does not reflect the current severity and impact of the Veteran's current condition. Thus, the Veteran should be afforded the opportunity of a new examination to determine if he has a hearing loss disability in his right ear for VA purposes. Regarding the Veteran's short-term memory loss condition, headaches, fatigue and respiratory conditions, the RO stated in the June 2017 statement of the case that the Veteran failed to appear for the scheduled VA exams and several attempts were made to contact him. Subsequently, the RO concluded that these conditions were not related to service. However, the Board finds that the record does not show the attempts to contact the Veteran. Additionally, the Veteran attended other VA medical examinations and at his DRO hearing stated that he was willing to report to new exams. Here, the record shows that the Veteran complained about these conditions in service and thereafter. Indeed, the Veteran provided credible testimony at his May 2016 DRO hearing about his condition's relation to service and to his service-connected conditions, to include, that his headaches are related to his neck condition and memory loss related to depression in service. See DRO hearing transcript (May 2016). Thus, the Veteran should be provided another opportunity to show up for these VA examinations. Further, the Veteran is reminded about the importance of attending these examinations to further adjudicate the issues on appeal. On remand, the examiner must provide a complete rationale regarding the onset and nature of the Veteran's remanded conditions. Additionally, the examination must discuss if his conditions are caused, proximately due or aggravated by his service-connected disabilities. Thus, the Veteran should be afforded a complete examination to determine the onset, etiology, and nature of his short-term memory loss, headaches, fatigue and respiratory conditions. Also, the examiner must opine if his short-term memory loss, headaches, fatigue and respiratory conditions are proximately due or aggravated by his service-connected conditions. Further, the examiner should consider the credible lay statements regarding the onset of his conditions. Indeed, the record shows treatment for these conditions. See STR (April 2003 and October 2006); see also VA medical treatment record (April 2015 and February 2017). As there is no adequate and Sharp-compliant examination to determine the severity of his cervical condition and right ear hearing loss, as well, the nature of his short-term memory loss, headaches, fatigue and respiratory conditions, or if they are proximately due or aggravated by his service-connected disabilities, a remand is necessary to have the Veteran examined and for an examiner to review his claims folder and provide opinions necessary to adjudicate this appeal. The matter is REMANDED for the following action: 1. Obtain complete VA and Non-VA treatment records of the Veteran's cervical, right ear, headaches, fatigue, short-term memory loss and respiratory condition. 2. Notify the Veteran that he may submit additional lay statements from himself and from other individuals who have first-hand knowledge, and/or were contemporaneously informed of his in-service and post-service headaches, fatigue, short-term memory loss and respiratory condition. Additionally, about the severity of his cervical and right ear hearing loss. The Veteran should be provided an appropriate amount of time to submit this lay evidence. 3. Schedule a VA examination (or telehealth interview, review of the record, etc. if an in-person examination is not feasible). Whether an in-person examination is necessary should be determined by the examiner. The examiner must determine the severity and impact of the Veteran's service-connected cervical condition. The examiner should provide a full description of his cervical problems, severity and report all signs and symptoms necessary for evaluating the Veteran's disabilities. In doing so, the examiner must specifically acknowledge and discuss the Veteran's medical and competent lay reports. The examiner should identify all cervical impairment found to be present. The examiner should conduct all indicated tests and studies, to include range of motion studies. The joints involved should be tested in both active and passive motion, in weight-bearing and non-weight-bearing. 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 should describe any pain, weakened movement, excess fatigability, instability of station and incoordination present. The examiner should also state whether the examination is taking place during a period of flare-up. If not, the examiner should ask the Veteran to describe the flare-ups he experiences, including frequency, duration, characteristics, precipitating and alleviating factors, severity and/or extent of functional impairment he experiences during a flare-up of symptoms and/or after repeated use over time. Based on the Veteran's lay statements and the other evidence of record, the examiner should provide an opinion estimating any additional degrees of limited motion caused by functional loss during a flare-up or after repeated use over time. If the examiner cannot estimate the degrees of additional range of motion loss during flare-ups or after repetitive use without resorting to speculation, the examiner should state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). 4. Schedule a VA examination (or telehealth interview, review of the record, etc. if an in-person examination is not feasible). As to his right ear hearing loss, the Veteran should be provided an audiogram to determine if the Veteran has a right ear hearing loss disability for VA purposes. 5. Schedule a VA examination (or telehealth interview, review of the record, etc. if an in-person examination is not feasible). The examiner must opine as to whether it is at least as likely as not that the Veteran's headaches, fatigue, short-term memory loss and respiratory conditions are related to or had its onset in service. A diagnosis of psychiatric disability and chronic fatigue syndrome must be ruled or excluded. The examiner is asked to review the pertinent evidence, including the Veteran's lay assertions regarding his symptomatology, and undertake any indicated studies. Then, based on the results of the examination, the examiner is asked to address each of the following questions: (a) Please state whether the symptoms of each claimed condition are attributable to a known clinical diagnosis. If the Veteran does not now have, but previously had any such condition, when did that condition resolve? (b) Is the Veteran's disability pattern consistent with: (1) a diagnosable but medically unexplained chronic multisymptom illness of unknown etiology, (2) a diagnosable chronic multisymptom illness with a partially explained etiology, or (3) a disease with a clear and specific etiology and diagnosis. (c) If, after examining the Veteran and reviewing the claims file, you determine that the Veteran's disability pattern is either (2) a diagnosable chronic multi-symptom illness with a partially explained etiology, or (3) a disease with a clear and specific etiology and diagnosis, then please provide an expert opinion as to whether it is related to a presumed environmental exposures experienced by the Veteran during service in Southwest Asia. (d) Is it at least as likely as not that any diagnosed disorder had its onset directly during the Veteran's service or is otherwise causally related to any event or circumstance of his service, including environmental exposures during service in Southwest Asia during the Persian Gulf War? (e) If not directly related to service on the basis of questions (b)-(d), is any medical condition proximately due to, the result of, or caused by any service-connected disability(ies)? (f) If not caused by another medical condition, has any disorder been aggravated by any service-connected disability(ies) ? If yes, was that increase in severity due to the natural progress of the disease? In offering these opinions, the examiner must acknowledge and discuss the Veteran's competent lay statements of his conditions and any lay evidence regarding the onset of his conditions. STEVEN D. REISS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Alvarado- 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.