Citation Nr: 21062920 Decision Date: 10/12/21 Archive Date: 10/12/21 DOCKET NO. 17-19 064 DATE: October 12, 2021 REMANDED Entitlement to a rating in excess of 20 percent for bilateral hearing loss is remanded. Entitlement to a rating in excess of 10 percent prior to April 27, 2018, for internal derangement of the anterior cruciate ligament (ACL) with degenerative arthritis of the right knee and in excess of 30 percent as of June 1, 2019, for total right knee replacement is remanded. REASONS FOR REMAND The Veteran served on active duty from March 1975 to March 1999. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions issued in September 2016 and February 2017 by a Department of Veterans Affairs (VA) Regional Office. In June 2021, the Veteran and his spouse testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the record. At such time, the Veteran waived Agency of Original Jurisdiction (AOJ) consideration of the evidence associated with the record since the issuance of the December 2016 and March 2017 statements of the case. 38 C.F.R. § 20.1305(c). The Board also notes that he submitted additional evidence in support of his claim later the same month. 1. Entitlement to a rating in excess of 20 percent for bilateral hearing loss. The Veteran was most recently afforded a VA examination in January 2017 in order to ascertain the nature and severity of his bilateral hearing loss. At such time, the examiner found that the puretone test results were invalid for rating purposes as such were found to be exaggerated in light of the fact that the Veteran's current thresholds declined by 10 to 40 decibels across most frequencies when compared with his prior audiograms conducted by VA, to include most recently in January 2016, for which there was no medical reason. The examiner further found that the use of the word recognition score was inappropriate because of language difficulties, cognitive problems, and inconsistent word recognition scores, etc. A review of the Veteran's VA treatment records reflect that, in addition to the January 2016 audiometric test, he also underwent audiometric testing in June 2019 and January 2020; however, the complete evaluations are not of record. Thus, on remand, such audiometric test results, which may be housed in VistA Imaging, should be obtained. Furthermore, since the January 2017 VA examination, the Veteran has reported a worsening of his bilateral hearing loss symptomatology. Specifically, at the June 2021 Board hearing, both he and his spouse testified that he often had to ask people to repeat themselves, had to read lips, had difficulty hearing when there was background noise, and had trouble discerning words. Therefore, the Board finds that a remand is necessary in order to afford the Veteran a contemporaneous VA examination so as to assess the current nature and severity of his service-connected bilateral hearing loss. Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994); VAOPGCPREC 11-95 (1995). 2. Entitlement to a rating in excess of 10 percent prior to April 27, 2018, for internal derangement of the ACL with degenerative arthritis of the right knee and in excess of 30 percent as of June 1, 2019, for total right knee replacement. The Veteran was most recently afforded a VA examination in August 2016 in order to ascertain the nature and severity of his right knee disability. At such time, he denied flare-ups of such disability, but reported an increase in pain and swelling with prolonged walking, climbing, repeated lifting, and twisting. However, the examiner indicated that the examination was neither medically consistent or inconsistent with the Veteran's statements describing functional loss with repeated use over time, and stated that she was unable to determine whether pain, weakness, fatigability, or incoordination significantly limited the Veteran's functional ability with repeated use over a period of time without resorting to speculation because she was unable to be present during such time. Further, no range of motion testing for pain on passive motion, weight-bearing, and nonweight-bearing was performed. Furthermore, since such VA examination, the Veteran underwent a total right knee replacement on April 27, 2018, and, at the June 2021 Board hearing, testified that he currently experienced episodic pain in his kneecap and instability. Thus, in light of the fact that the Veteran has undergone a total knee replacement and testified to relevant symptomatology since the August 2016 VA examination, the Board finds that a remand is necessary in order to afford him a contemporaneous VA examination so as to assess the current nature and severity of his service-connected right knee disability, and obtain retrospective opinions addressing the functional impairment of such disability following repeated use over time and range of motion findings for pain on passive motion, weight-bearing, and nonweight-bearing as reflected at the August 2016 VA examination. The matters are REMANDED for the following action: 1. Obtain the complete results from audiometric testing performed by VA in January 2016, June 2019, and January 2020. the AOJ is advised that such may be contained in VistA Imaging rather than CAPRI. 2. Afford the Veteran an appropriate VA examination in order to determine the current nature and severity of his bilateral hearing loss. The record, to include a copy of this remand, should be provided to the examiner and all indicated tests should be conducted. In this regard, the examiner should identify auditory thresholds, in decibels, at frequencies of 1000, 2000, 3000, and 4000 Hertz. A Maryland CNC Test should also be administered to determine speech recognition scores. If any of the test results are invalid, the examiner should explain why. He or she should also describe the functional effects caused by the Veteran's bilateral hearing loss. A rationale for any opinion offered should be provided. 3. Afford the Veteran an appropriate VA examination in order to determine the current nature and severity of his right knee disability. The record, to include a copy of this remand, should be provided to the examiner and all indicated tests should be conducted. Thereafter, the examiner should addressing the following inquiries: (A) The examiner should identify the current nature and severity of all manifestations of the Veteran's right knee disability. (B) The examiner should indicate whether the Veteran's total right knee replacement results in chronic residuals consisting of severe painful motion or weakness. (C) The examiner should record the range of motion of the right knee observed on clinical evaluation in terms of degrees. If there is evidence of pain on motion, the examiner should indicate the degree of range of motion at which such pain begins, as well as whether such pain on movement results in any loss of range of motion. The examiner should record the results of range of motion testing for pain on both active and passive motion, on weight-bearing and non-weight-bearing, in terms of degrees, if possible. 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. (D) It is also imperative that the examiner comment on the functional limitations caused by flare-ups and repeated use over time. In this regard, the examiner should indicate whether, and to what extent, the Veteran's range of motion is additionally limited during flare-ups and on repeated use over time, expressed, if possible, in terms of degrees. If the Veteran is not being examined after repeated use over time or during a flare-up, the examiner should obtain information regarding the frequency, duration, characteristics, severity, and/or functional loss related to such factors and estimate his range of motion, if possible. If it is not possible to provide a specific measurement without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). (E) The examiner is also requested to review the August 2016 examination and provide a retrospective opinion as to whether, and to what extent, the Veteran's range of motion is additionally limited on repeated use over time, expressed, if possible, in terms of degrees. The examiner should note the Veteran's contemporaneous report of an increase in pain and swelling with prolonged walking, climbing, repeated lifting, and twisting in offering such opinion. The examiner should also provide retrospective opinions addressing range of motion findings, expressed in degrees, for pain on passive motion, weight-bearing and non-weight-bearing. If it is not possible to provide a specific measurement without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). (F) The examiner should also comment as to whether the Veteran's right knee disability results in recurrent subluxation, lateral instability, or patellar instability and, if so, to what extent. (G) The examiner also should comment upon the functional impairment resulting from the Veteran's right knee disability. A rationale for any opinion offered should be provided. A. JAEGER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Spielmann, Jill F. 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.