Citation Nr: 21061754 Decision Date: 10/05/21 Archive Date: 10/05/21 DOCKET NO. 15-16 696 DATE: October 5, 2021 REMANDED Entitlement to service connection for a left knee disability, to include as secondary to a service-connected disability is remanded. Entitlement to service connection for bilateral hearing loss is remanded. Entitlement to service connection for an acquired psychiatric disability, to include posttraumatic stress disorder (PTSD) is remanded. Entitlement to a disability rating in excess of 10 percent for right knee patellofemoral syndrome, status post right knee arthroscopy is remanded. REASONS FOR REMAND The Veteran served on active duty from January 2001 to November 2004. These matters come before the Board of Veterans' Appeals (Board) on appeal of a June 2010 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). This case was previously remanded by the Board in February 2019 and December 2020. The case has been returned to the Board for review. 1. Entitlement to service connection for a left knee disability, to include as secondary to service-connected disability is remanded. 2. Entitlement to service connection for bilateral hearing loss is remanded. 3. Entitlement to service connection for an acquired psychiatric disability, to include posttraumatic stress disorder (PTSD) is remanded. 4. Entitlement to a disability rating in excess of 10 percent for right knee patellofemoral syndrome, status post right knee arthroscopy is remanded. In its February 2019 Board remand, the Board directed the RO to schedule the Veteran for new VA examinations. In its December 2020 Board remand, the Board noted that the RO scheduled the Veteran for VA examinations pursuant to the February 2019 Board remand, and that they were canceled because the Veteran failed to report for the examination. The Board noted that in July 2020, the Veteran informed the RO that he is currently homeless and living out of his car and that an August 2020 correspondence was returned as undeliverable. As such, the Board found that there was no indication in the file that the Veteran was notified of the examinations. In light of the absence of evidence showing the Veteran received proper notice of his scheduled VA examinations, the Board found that another remand was required in order to obtain an opinion regarding the etiology of the Veteran's current left knee disability, bilateral hearing loss, and acquired psychiatric disorder and the current severity of his service-connected right knee disability. Following the December 2020 Board remand, the RO scheduled the Veteran for VA examinations. In a September 2021 Report of General Information Correspondence, the Veteran expressed that he needs to have all VA examinations rescheduled. The Veteran reported that he did not know about the examinations because the address on record is not up to date. The Veteran indicated that he would send in a form to update his address. In September 2021, the Veteran completed a Request for Change of Address Form. Because there is a record of the Veteran's homelessness and because he has indicated that he did not receive notice of the prior examination for his claim and is willing to report once properly notified, a final attempt should be made to schedule and obtain new VA examinations. The Veteran is reminded that the duty to assist is a two-way street and failure to report for the VA examinations could result in a denial of his claim. The matters are REMANDED for the following action: 1. Send the Veteran notice required for PTSD claims based on personal assaults, and allow time for a response. Then, attempt to corroborate the Veteran's reported in-service stressors, to include those based on personal assault. If more details are needed, contact the Veteran to request the information. 2. Contact the Veteran and request that he complete and submit to VA a signed authorization for disclosure of medical records to VA foreach private medical health care provider from whom he has received treatment for the disabilities at issue on appeal. After receiving any completed authorization form(s), undertake all appropriate efforts to attempt to obtain the identified records. All development efforts with respect to this directive should be associated with the claims file. The Veteran is encouraged to submit directly to VA any outstanding, relevant medical records in his possession. 3. Thereafter, schedule the Veteran for a VA examination to determine the nature and etiology of any left knee disability. Provide a copy of this remand and the record for the examiner to review. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner must address the following: Provide a diagnosis for any left knee disability demonstrated since service, found on current examination or in the record. For each left knee disability, provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that the condition had its onset during the Veteran's service or is otherwise etiologically related to his service. If not, whether it is at least as likely as not (50 percent or greater probability) that the Veteran's left knee disability is proximately due to or the result of his service-connected disabilities, specifically to include his service-connected right knee disability. Rationale must be provided for the opinion proffered. In rendering the requested rationale, the examiner must note that it is not required that the left knee disability is shown to be "predominantly" due to or result of his right knee disability, but rather, whether there is any contributing degree of etiological relationship to the right knee disability. If not, whether it is at least as likely as not (50 percent or greater probability) that the Veteran's left knee disability is aggravated beyond natural progression by his service-connected disabilities, specifically to include his service-connected right knee disability. Rationale must be provided for the opinion proffered. In rendering the requested rationale, the examiner must note that it is not required that the left knee disability is shown to be aggravated beyond natural progression "predominantly" by his right knee disability, but rather, whether there is any contributing degree of aggravation beyond natural progression by the service-connected right knee disability. The examiner is advised that the Veteran is competent to report symptoms, treatment, and injuries observable to a layperson. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). 4. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of his bilateral hearing loss disability. The examiner must opine whether it is at least as likely as not (50 percent probability or greater), that the hearing loss disability is related to an in-service injury, event, or disease, including the Veteran's reported in-service noise exposure. The examiner is advised that the Veteran is competent to report symptoms, treatment, and injuries observable to a layperson. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The examiner is also reminded that the absence of documented treatment or hearing loss in service or thereafter is not fatal to a service connection claim, and the absence of evidence in the service treatment records is an insufficient basis, by itself, for a negative opinion. The examiner must provide a comprehensive rationale for all opinions expressed. 5. Schedule the Veteran for a VA examination to determine the nature and etiology of each diagnosed psychiatric disability, to include PTSD. Provide a copy of this remand and the record to the examiner for review. Any and all tests and evaluations deemed necessary by the examiner should be performed. The examiner must address the following: Provide a diagnosis for each acquired psychiatric disability demonstrated since service, found on current examination or in the record. If there is a current diagnosis of PTSD and a verified stressor, or if the examiner determines that a personal assault occurred in service, provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that the Veteran's PTSD is related to his confirmed in-service stressor or in-service personal assault. Rationale must be provided for the opinion proffered. Provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that any acquired psychiatric disability other than PTSD demonstrated since service had its onset in active service or is otherwise causally or etiologically related to the Veteran's active service. The examiner is advised that the Veteran is competent to report symptoms, treatment, and injuries observable to a layperson. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The examiner must provide a comprehensive rationale for all opinions expressed. 6. Schedule the Veteran for a VA examination to determine the current nature and severity of his service-connected right knee disability. The record and a copy of this remand must be made available to and reviewed by the examiner. The examination must include all physical and diagnostic testing deemed necessary by the examiner in conjunction with this request. The examiner should report all manifestations related to the Veteran's service-connected right knee disability. The examiner must address the following: The examiner should record the results of range-of-motion testing for pain on both active and passive motion and in weight-bearing and non-weight-bearing for the right knee. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, the examiner should clearly explain why that is so. In recording the ranges of motion for the Veteran's right knee, the examiner should note whether, upon repetitive motion, there is any pain, weakened movement, excess fatigability, or incoordination of movement, and whether there is likely to be additional functional loss due to pain on use, weakened movement, excess fatigability, or incoordination over time. If there is no pain, no limitation of motion, and/or no limitation of function, such facts must be noted in the report. The examiner should also express an opinion concerning whether there would be additional functional impairment on repeated use over time or during flare-ups. The examiner should assess the additional functional impairment on repeated use or during flare-ups in terms of the degree of additional range-of-motion loss, if possible. If the Veteran indicates that he is not currently experiencing a flare-up at the time of the examination, the examiner should estimate any additional functional loss during flare-ups or on repeated use, if feasible. If it is not feasible to determine, even by estimation, 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. LESLEY A. REIN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M.D. 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.