Citation Nr: 21063990 Decision Date: 10/18/21 Archive Date: 10/18/21 DOCKET NO. 17-20 995 DATE: October 18, 2021 ORDER Entitlement to a rating in excess of 20 percent for a right shoulder impingement is dismissed. Entitlement to a rating in excess of 10 percent for tinnitus is dismissed. Entitlement to a rating in excess of 10 percent for a left ankle sprain is dismissed. Entitlement to a rating in excess of 20 percent for a right tibia fracture s/p residual right knee open reduction and internal fixation and right ankle sprain is dismissed. Entitlement to a rating in excess of 20 percent for degenerative disc disease of the lumbar spine is dismissed. Entitlement to service connection for eye disorders, claimed as astigmatism of the right eye and bilateral color blindness, is dismissed. The petition to reopen the previously denied claim for service connection for a right knee disorder is granted. The petition to reopen the previously denied claim for service connection for hearing loss of the left ear is granted. Entitlement to a 20 percent rating effective December 2, 2011, but no higher and no earlier, for residuals of a scar status post right tibia fracture is granted. REMANDED Entitlement to a compensable rating for right ear sensorineural hearing loss is remanded. Entitlement to a rating in excess of 10 percent for hypoesthesia of the right knee is remanded. Entitlement to a rating in excess of 10 percent left lower extremity radiculopathy is remanded. Entitlement to service connection for left ear hearing loss is remanded. Entitlement to service connection for a right knee disorder to include right knee arthritis, is remanded. FINDINGS OF FACT 1. On May 10, 2021, at his hearing before the Board, the Veteran indicated that he wished to withdraw the issues of entitlement to an increased rating for right shoulder impingement, increased rating for tinnitus, increased rating for left ankle sprain, increased rating for right tibia fracture s/p residual right knee open reduction and internal fixation and right ankle sprain, increased rating for degenerative disc disease of the lumbar spine and service connection for an eye disorder. 2. An August 2004 rating decision denied the Veteran's petition to reopen his previously denied service connection claim for right knee arthritis. The Veteran did not appeal, nor was new and material evidence received within one year. 3. Additional evidence received after the August 2004 rating decision is not cumulative or redundant of the evidence of record at the time of that decision, and relates to an unestablished fact necessary to substantiate the claims for service connection for a right knee disorder. 4. An August 2004 rating decision denied the Veteran's petition to reopen his previously denied service connection claim for hearing loss of the left ear. The Veteran did not appeal, nor was new and material evidence received within one year. 5. Additional evidence received after the August 2004 rating decision is not cumulative or redundant of the evidence of record at the time of that decision, and relates to an unestablished fact necessary to substantiate the claims for service connection for hearing loss of the left ear. 6. Resolving all reasonable doubt in the Veteran's favor, the Veteran has had three painful scars ever since or prior to December 2, 2011, which is the date that the Agency of Original Jurisdiction received this claim. CONCLUSIONS OF LAW 1. The criteria for withdrawal of the issue of entitlement to a rating in excess of 20 percent for a right shoulder impingement have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 2. The criteria for withdrawal of the issue of entitlement to a rating in excess of 10 percent for tinnitus have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 3. The criteria for withdrawal of the issue of entitlement to a rating in excess of 10 percent for a left ankle sprain have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 4. The criteria for withdrawal of the issue of entitlement to a rating in excess of 20 percent for a right tibia fracture s/p residual right knee open reduction and internal fixation and right ankle sprain have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 5. The criteria for withdrawal of the issue of entitlement to a rating in excess of 20 percent for degenerative disc disease of the lumbar spine have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 6. The criteria for withdrawal of the issue of entitlement to service connection for eye disorders, claimed as astigmatism of the right eye and bilateral color blindness, have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 7. The August 2004 rating decision is final. 38 U.S.C. § 7105(c); 38 C.F.R. § 3.104, 20.302, 20.1103. 8. New and material evidence has been received since the August 2004 rating decision; thus, the claim for service connection for right knee arthritis is reopened. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. §§ 3.156, 20.302, 20.1103. 9. New and material evidence has been received since the August 2004 rating decision; thus, the claim for service connection for hearing loss of the left ear is reopened. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. §§ 3.156, 20.302, 20.1103. 10. The criteria for an initial 20 percent rating for three or four painful scars effective December 2, 2011 have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1.4.14, 4.21, 4.118, Diagnostic Code 7804. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Marine Corps from June 1996 to June 2004. These matters are before the Board of Veterans' Appeals (Board) on appeal of a June 2013 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. A virtual hearing was conducted on May 10, 2021 before the undersigned Veterans Law Judge, with the Veteran and his attorney present. A transcript of the hearing has been associated with the file. The Board notes that the Veteran's attorney stated that a submission from the Veteran's wife would be submitted after the hearing; however, such statement has not yet been received by VA. The Board additionally briefly notes that as the Veteran is prosecuting claims for increased ratings, a claim for a TDIU can sometimes be inferred as part and parcel of a claim for increased ratings. See Rice v. Shinseki, 22 Vet. App. 447 (2009). In this case, the Veteran testified that his hearing loss presents difficulties in his employment, but that his ability to work from home has improved his workplace efficiency. See Hearing Tr. (May 10, 2021), at Pages 15-6 (detailing how he can adjust volume settings on his two-way audio headset). As there appears to be no dispute that the Veteran is employed and therefore not pursuing a claim for a TDIU, the Board accordingly declines to infer a claim for a TDIU herein. Withdrawn Claims 1. Entitlement to a rating in excess of 20 percent for a right shoulder impingement is dismissed. 2. Entitlement to a rating in excess of 10 percent for tinnitus is dismissed. 3. Entitlement to a rating in excess of 10 percent for a left ankle sprain is dismissed. 4. Entitlement to a rating in excess of 20 percent for a right tibia fracture s/p residual right knee open reduction and internal fixation and right ankle sprain is dismissed. 5. Entitlement to a rating in excess of 20 percent for degenerative disc disease of the lumbar spine is dismissed. 6. Entitlement to service connection for eye disorders, claimed as astigmatism of the right eye and bilateral color blindness, is dismissed. The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105. An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. Withdrawal may be made by the appellant or by his or her authorized representative. 38 C.F.R. § 19.55; see Anderson v. Brown, 9 Vet. App. 542, 547 (1996). Here, at his May 10, 2021 hearing, the Veteran testified that he wished to withdraw his appeals for entitlements to increased ratings for a right shoulder impingement, tinnitus, a left ankle sprain, residuals of a fractured right tibia, and degenerative disc disease of the lumbar spine, and also for service connection for eye disorders including astigmatism of the right eye and bilateral color blindness. See Hearing Tr. (May 10, 2021), at Pages 2-3. The Board finds the Veteran's testimony to be clear, unambiguous, and done with a full understanding of the consequences of such action. See DeLisio v. Shinseki, 25 Vet. App. 45, 57 (2011). As such, the Veteran has withdrawn his appeals concerning the issues listed above, and there remain no allegations of error or fact or law for appellate consideration therein. The only claims remaining on appeal are the Veteran's petitions to reopen claims for service connection for a separate right knee disorder and hearing loss of the left ear (which are both granted as reopened, but remanded for further development), and for increased ratings for the following: right ear hearing loss, hypoesthesia and limitation of flexion of the right knee, scars of the right tibia, and radiculopathy of the left lower extremity (which are all remanded). These remaining issues will be discussed in relevant parts below. New and Material Evidence As a threshold matter, the Board must determine whether new and material evidence has been submitted to reopen a previously denied claim. See Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001) (reopening after a prior unappealed RO denial) A rating decision becomes final when it has not been appealed within the prescribed time period and when no additional material evidence was received within a year of the decision; the decision is not subject to revision on the same factual basis. 38 U.S.C. § 7105(b); 38 C.F.R. §§ 3.104, 20.302, 20.1103. In order to reopen a claim, there must be added to the record "new and material evidence." 38 U.S.C. § 5108. New evidence means existing evidence not previously submitted to agency decisionmakers. 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 neither be cumulative or 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. The law provides that new and material evidence necessary to reopen previously and finally disallowed claims must be secured or presented since the time that the claims were finally disallowed on any basis, not only since the time the claims were last disallowed on the merits. See Evans v. Brown, 9 Vet. App. 273, 285 (1996). 38 C.F.R. § 3.156(a), which defines new and material evidence, requires that evidence raise a reasonable possibility of substantiating the claim in order to be considered "new and material," and defines material evidence as evidence, that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. The Court of Appeals for Veterans Claims (Court) has held that the determination of whether newly submitted evidence raises a reasonable possibility of substantiating the claim should be considered a component of the question of what is new and material evidence, rather than a separate determination to be made after the Board has found that evidence is new and material. See Shade v. Shinseki, 24 Vet. App. 110 (2010). The Court further held that new evidence would raise a reasonable possibility of substantiating the claim if, when considered with the old evidence, it would at least trigger the Secretary's duty to assist by providing a medical opinion. Id. For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). When there is an approximate balance of positive and negative evidence as to any issue material to the determination of a matter, VA will resolve reasonable doubt in favor of the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 1. The petition to reopen the previously denied claim for service connection for right knee arthritis is granted. The Veteran's claim for service connection for right knee arthritis was originally denied in an August 2004 rating decision as the clinical evidence of record as there are no findings of right knee arthritis shown no VA examination. Evidence considered in this rating decision included the Veteran's service treatment records and a May 2004 VA examination. The Veteran was provided notice of this decision as well as his appellate rights in an August 2004 letter. There was no further communication regarding his claim of entitlement to service connection for right knee arthritis was received until December 2011, when VA received his petition to reopen such claim. Therefore, the August 2004 rating decision is final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104, 20.302, 20.1103. In this regard, the Board has considered the applicability of 38 C.F.R. § 3.156(b), which provides that, when new and material evidence is received prior to the expiration of the appeal period, it will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period. However, in the instant case, such regulation is inapplicable as no relevant evidence pertaining to the Veteran's claim for service connection was received prior to the expiration of the appeal period stemming from August 2004 rating decision. See also Lang v. Wilkie, 971 F.3d 1438 (2020); Bond v. Shinseki, 659 F.3d 1362, 1367 (Fed. Cir. 2011); Roebuck v. Nicholson, 20 Vet. App. 307, 316 (2006); Muehl v. West, 13 Vet. App. 159, 161-62 (1999). Moreover, no additional relevant service records (warranting reconsideration of the claim) have been received at any time. See 38 C.F.R. § 3.156(c). The Veteran filed the instant petition to reopen his claim for entitlement to service connection for right knee arthritis which was received by VA in December 2011. The pertinent evidence that has been received since the August 2004 rating decision includes continuing post-service treatment records, an October 2014 VA examination report and Board hearing testimony. The clinical records reflect complaints of right knee pain but do not reflect a right knee X-ray. In Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018), the Federal Circuit held that pain manifesting in functional loss constitutes a disability for VA purposes. The Veteran's hearing testimony regarding right knee pain and the clinical evidence of right knee pain is new and material because it is not redundant of evidence already of record on August 2004 and it relates to unestablished facts of whether the Veteran's claimed arthritis of the right knee (or otherwise a separate compensable disorder other than hypoesthesia or limitation of flexion) may be related to service. See 38 C.F.R. § 3.156(a). As such, the issue of entitlement to service connection for a right knee arthritis is reopened. 2. The petition to reopen the previously denied claim for service connection for hearing loss of the left ear is granted. The Veteran's claim for service connection left ear hearing loss was originally denied in an August 2004 rating decision as the clinical evidence of record as there was no clinical evidence of left ear hearing loss for VA purposes. Evidence considered in this rating decision included the Veteran's service treatment records and a May 2004 VA examination. The Veteran was provided notice of this decision as well as his appellate rights in an August 2004 letter. There was no further communication regarding his claim of entitlement to service connection for left ear hearing loss was received until December 2011, when VA received his petition to reopen such claim. Therefore, the August 2004 rating decision is final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104, 20.302, 20.1103. In this regard, the Board has considered the applicability of 38 C.F.R. § 3.156(b). However, in the instant case, such regulation is inapplicable as no relevant evidence pertaining to the Veteran's claim for service connection was received prior to the expiration of the appeal period stemming from August 2004 rating decision. See also Lang v. Wilkie, supra; Bond v. Shinseki, supra; Roebuck v. Nicholson, supra; Muehl v. West, supra. Moreover, no additional relevant service records (warranting reconsideration of the claim) have been received at any time. See 38 C.F.R. § 3.156(c). The Veteran filed the instant petition to reopen his claim for entitlement to service connection for left ear hearing loss which was received by VA in December 2011. The pertinent evidence that has been received since the August 2004 rating decision includes continuing post-service treatment records, an October 2014 VA examination report and Board hearing testimony. VA treatment records reflect a past medical history of bilateral hearing loss but do not reflect audiogram results. The Veteran's hearing testimony regarding hearing loss and the clinical evidence of reflecting a past medical history of bilateral hearing loss is new and material because it is not redundant of evidence already of record on August 2004 and it relates to unestablished facts of whether the Veteran has left ear hearing loss for VA purposes. See 38 C.F.R. § 3.156(a). As such, the issue of entitlement to service connection for a left ear hearing loss is reopened. Increased Ratings 1. Entitlement to a 20 percent rating effective December 2, 2011, but no higher and no earlier, for residuals of a scar status post right tibia fracture is granted. The Veteran's three painful scars on his right tibia have been rated as 20 percent disabling effective August 21, 2014, but noncompensable prior to that date. See Rating Decision (Mar. 27, 2017); 38 C.F.R. § 4.118, Diagnostic Code 7804. The Veteran and his attorney assert that while the current 20 percent rating is appropriate, an increased rating to 20 percent at all times prior to August 2014 is still warranted. See Hearing Tr. (May 10, 2021), at Page 7. The Board accepts this limitation of the Veteran's claim, and shall consider a grant of an initial 20 percent rating since December 2, 2011, but no higher and no earlier, as a full claim of the benefit sought on appeal. Effective October 23, 2008, the criteria for rating skin/scar disabilities were revised. See 73 Fed. Reg. 54708 (Sept. 23, 2008) (codified at 38 C.F.R. pt. 4). However, the October 2008 amendments only apply to claims filed on or after October 23, 2008, although a claimant may also specifically request consideration under the amended criteria. 38 C.F.R. § 4.118 (after October 2008). In the present case, the Veteran's increased rating claim stem from a claim filed on December 2, 2011, which is subsequent to the October 2008 effective date for these amendments. Therefore, the October 2008 skin criteria clearly apply to the Veteran's scars on appeal. Effective August 13, 2018, prior to the filing of this appeal, the criteria for rating skin/scar disabilities were again revised. See 83 Fed. Reg. 32592 (July 13, 2018); 83 Fed. Reg. 38663 (Aug. 7, 2018). The Secretary of VA has determined that "claims pending prior to [August 13, 2018] will be considered under both old and new rating criteria, and whatever criteria is more favorable to the veteran will be applied." 83 Fed. Reg. at 32593. In other words, the August 13, 2018 amended skin rating criteria can be applied retroactively, if more favorable to the Veteran. See generally VAOPGCPREC 3-2000, 7-2003. As noted above, the Veteran's increased rating claim was filed in December 2011. Thus, the increased rating claim was pending prior to the August 13, 2018 revisions. As such, the Veteran's increased rating claim for his scars will also be considered under the criteria in effect after August 13, 2018. See again 83 Fed. Reg. at 32593 (emphasis added). The August 13, 2018 skin amendments introduce a General Rating Formula for skin conditions and amend Diagnostic Codes 7801 and 7802 by characterizing multiple scars by 6 body zones affected rather than by extremity. In addition, under the August 2018 amendments, two or more skin conditions may be combined in accordance with § 4.25 only if separate areas of skin are involved. If two or more skin conditions involve the same area of skin, then only the highest evaluation shall be used. See 38 C.F.R. § 4.118(b) (August 13, 2018). However, the August 13, 2018 skin amendments presented no changes to the rating criteria for Diagnostic Codes 7800, 7804, and 7805. In other words, Diagnostic Codes 7800, 7804, and 7805 are exactly same both prior to and after August 13, 2018. Compare 38 C.F.R. § 4.118 (October 23, 2008) with 38 C.F.R. § 4.118 (August 13, 2018). Finally, both prior to and after August 13, 2018, Diagnostic Code 7803 no longer exists, as it was incorporated into Diagnostic Code 7804. Under Diagnostic Code 7802, Burn Scar(s) or scar(s) due to other causes, not of the head, face, or neck, that are not associated with underlying soft tissue damage, a 10 percent rating is warranted for an area or areas of 144 square inches (929 sq. cm.) or greater. 38 C.F.R. § 4.118. Note (1) to Diagnostic Code 7802: For the purposes of Diagnostic Codes 7801 and 7802, the six (6) zones of the body are defined as each extremity, anterior trunk, and posterior trunk. The midaxillary line divides the anterior trunk from the posterior trunk. Note (2) to Diagnostic Code 7802: A separation evaluation may be assigned for each affected zone of the body under this diagnostic code if there are multiple scars, or a single scar, affecting multiple zones of the body. Combine the separate evaluation under § 4.25. Alternatively, if a higher evaluation would result from adding the areas affected from multiple zones of the body, a single evaluation may also be assigned under this diagnostic code. Under Diagnostic Code 7804, Scar(s), unstable or painful: a 10 percent rating is warranted for one or two scars that are unstable or painful. A 20 percent rating is warranted for three or four scars that are unstable or painful. A 30 percent rating is warranted for five or more scars that are unstable or painful. 38 C.F.R. § 4.118. Note (1) to Diagnostic Code 7804: An unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar. Note (2) to Diagnostic Code 7804: If one or more scars are both unstable and painful, add 10 percent to the evaluation that is based on the total number of unstable or painful scars. Note (3) to Diagnostic Code 7804: Scars evaluated under diagnostic codes 7800 7801, 7802, or 7805 may also receive an evaluation under this diagnostic code, when applicable. Under Diagnostic Code 7805, Scars, other; and other effects of scars evaluated under diagnostic codes 7800, 7801, 7802, or 7804, a noncompensable rating is warranted for no more than topical therapy required over the past 12-month period and at least one of the following, characteristic lesions involving less than 5 percent of the entire body affected; or characteristic lesions involving less than 5 percent of exposed areas affected; or rate as disfigurement of the head, face, or neck (Diagnostic Code 7800) or scars (Diagnostic Codes 7801, 7802, 7804, or 7805), depending upon the predominant disability. This rating instruction does not apply to Diagnostic Code 7824. A 10 percent rating is warranted for at least one of the following, characteristic lesions involving at least 5 percent, but less than 20 percent, of the entire body affected; or at least 5 percent, but less than 20 percent, of exposed areas affected; or intermittent systemic therapy including, but not limited to, corticosteroids, phototherapy, retinoids, biologics, photochemotherapy, PUVA, or other immunosuppressive drugs required for a total duration of less than 6 weeks over the past 12-month period. As indicated above, there is no serious dispute that the Veteran's three scars of the right tibia are currently rated as 20 percent disabling, and the Veteran has indicated that his three scars have been painful since prior to the receipt of his claimnot just effective the August 2014 examination. In other words, the Veteran is limiting his claim for an increased rating as one for an initial 20 percent rating from December 2, 2011 until prior to August 21, 2014. In short, the Veteran's claim for three painful scars on the right tibia was received on December 2, 2011, and he testified that they have been painful since or prior to that date. See Hearing Tr. (May 10, 2021), supra, at Page 7. The Veteran was only examined in August 2014, and those examination results are not in serious dispute. See 38 C.F.R. § 4.118. The Board has no reason to doubt the Veteran's credibility in his asserting that symptoms present at the August 2014 examination were present since December 2011. Resolving all reasonable doubt in the Veteran's favor, the Board finds that the evidence of record is at least evenly balanced to award an initial rating of 20 percent for three painful scars effective December 2, 2011, but no higher and no earlier. 38 U.S.C. § 1155, 38 C.F.R. § 3.102, Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND 1. Entitlement to a compensable rating for right ear hearing loss is remanded. 2. Entitlement to service connection for left ear hearing loss is remanded. The Veteran testified at his Board hearing that his hearing loss (currently noncompensable in the right ear only) has progressed since last examination. See VA Exam ( Oct. 17, 2014 ). Therefore, an updated VA examination is warranted to confirm whether the Veteran has left ear hearing loss for VA purposes, and to determine the current severity of the right ear hearing loss for VA rating purposes. See Weggerman v. Brown, 5 Vet. App. 281 (1993); Allday v. Brown, 7 Vet. App. 517 (1995); Caffrey v. Brown, 6 Vet. App. 377 (1994); Snuffer v. Gober, 10 Vet. App. 400 (1997). 3. Entitlement to a rating in excess of 10 percent for hypoesthesia of the right knee is remanded. 4. Entitlement to service connection for a right knee arthritis is remanded. 5. Entitlement to a rating in excess of 10 percent left lower extremity radiculopathy is remanded. The Board notes that the Veteran underwent an examination pertaining to radiculopathy in October 2020, see VA Exam ( Oct. 27, 2020 ). While the Board appreciates the Veteran's testimony of increasingly severe pain manifesting in his left leg, the Board notes that the last examination suggests mostly normal symptomatology. See id. at Question No. 11A (endorsing sciatic nerve moderate incomplete paralysis of the right lower extremity only, while not the left); see also id. at Question No. 3A (endorsing "moderate" intermittent pain (usually dull) in the left lower extremity, but indicating a lack of constant pain, paresthesias, dysesthesias, and numbness). Meanwhile, there is no evidence of record available for Board review suggesting left knee or leg pain during the appellate period. See contra, e.g.: VA Medical Records ( Oct. 1, 2004 ) ("Deep tendon reflexes patella 2+ bilaterally"); id. ( May 23, 2011 ) (memorializing follow-up for a right knee injury). The Board ultimately concludes that this claim may be inextricably intertwined with the remanded claim for residuals of his service-connected right knee. See also Hearing Tr. (May 10, 2021), at Pages 5-6 (Attorney stating "[Veteran,] remember we wanted to make sure that we're making the distinction between the pain that's coming from your back that's radiating down your lower extremity and the pain that's specifically emanating from your right knee down to even further lower extremity."). The Board accordingly determines that this adjudication must be deferred, to reconcile current medical findings with recent testimony, and to differentiate between back pain manifesting in each lower extremity from actual knee pain in each knee. The matters are REMANDED for the following action: 1. The Veteran should be given the opportunity to identify any outstanding private or VA treatment records relevant to the claims on appeal. After obtaining any necessary authorization from the Veteran, all outstanding records should be obtained, to include updated VA treatment records. For private treatment records, make at least two (2) attempts to obtain records from any identified sources. If any such records are unavailable, inform the Veteran and his representative and afford him an opportunity to submit any copies in their possession. For federal records, all reasonable attempts should be made to obtain such records. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 2. Following the receipt of outstanding records, schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected right ear hearing loss and the nature and etiology of his claimed left ear hearing loss. The record, to include a copy of this Remand, must be made available to and be reviewed by the examiner. Any indicated evaluations, studies, and tests should be conducted. 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. The examiner should also describe the functional effects of the Veteran's hearing loss. The examiner should also answer the following the question: If left ear hearing loss for VA purposes is demonstrated, is it at least as likely as not (50 percent or greater probability) that the Veteran's left ear hearing loss was incurred in or caused by his active service? The examiner must address the significance, if any, of the Veteran's lay statements and contentions regarding exposure to loud noises, a continuity of his hearing loss and decreased hearing acuity. A rationale should be provided for any opinion offered. If it is not possible to provide a specific opinion regarding the above questions, 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). The medical opinion must support the conclusions reached with an analysis that is adequate to consider and weigh against other evidence of record; medical opinions must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. If an opinion cannot be expressed without resort to speculation, ensure that the clinician so indicates and discusses why an opinion is not possible, to include whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. 3. Following the receipt of outstanding records, schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected hypoesthesia of the right knee. The record, to include a copy of this Remand, must be made available to and be reviewed by the examiner. Any indicated evaluations, studies, and tests should be conducted. The examiner should identify the current nature and severity of all manifestations of the Veteran's right knee hypoesthesia. The examiner should indicate the specific nerve groups involved, to include the internal popliteal nerve, and whether such disabilities more nearly approximate mild, moderate, or severe incomplete paralysis or complete paralysis of the affected nerve. The examiner should also comment upon the functional impairment resulting from the Veteran's hypoesthesia of the right knee. A rationale should be provided for any opinion offered. 4. Following the receipt of outstanding records, forward the claims file, to include a copy of this remand, to an appropriate VA examiner for opinion as to the nature and etiology of the Veteran's claimed right knee arthritis. The opinion should be rendered by an appropriate medical professional. The examiner should review the record and note such review in the examination report. The examination should include a review of the Veteran's history and current complaints as well as a comprehensive evaluation and any tests deemed necessary. The need for in-person examination is left to the discretion of the examiner. The examiner should respond to the following questions: (A) Identify all current disorders of the right knee have been found to be present at any time since December 2011. The examiner should specifically indicate whether the Veteran's has right knee arthritis. (B) For each right knee disorder diagnosed, is it at least as likely as not (50 percent probability or greater) that such had its onset in service or is otherwise etiologically related to service? A rationale should be provided for all opinions offered. If it is not possible to provide a specific opinion regarding the above questions, 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). The medical opinion must support the conclusions reached with an analysis that is adequate to consider and weigh against other evidence of record; medical opinions must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. If an opinion cannot be expressed without resort to speculation, ensure that the clinician so indicates and discusses why an opinion is not possible, to include whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. 5. Following the receipt of outstanding records, schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected sciatic radiculopathy of the left lower extremity. The record, to include a copy of this Remand, must be made available to and be reviewed by the examiner. Any indicated evaluations, studies, and tests should be conducted. The examiner should identify the current nature and severity of all manifestations of the Veteran's left lower extremity radiculopathy. The examiner should indicate the specific nerve groups involved, to include the internal popliteal nerve, and whether such disabilities more nearly approximate mild, moderate, or severe incomplete paralysis or complete paralysis of the affected nerve. The examiner should also comment upon the functional impairment resulting from the Veteran's radiculopathy of the left lower extremity. (Continued on the next page) A rationale should be provided for any opinion offered. KRISTY L. ZADORA Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Michael B. Engle, 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.