Citation Nr: 21067198 Decision Date: 11/03/21 Archive Date: 11/03/21 DOCKET NO. 02-08 414 DATE: November 3, 2021 REMANDED Entitlement to service connection for a dental condition, claimed as extracted teeth, is remanded. Entitlement to service connection for a right shoulder disability is remanded. Entitlement to service connection for a right arm disability is remanded. Entitlement to service connection for obstructive sleep apnea (OSA) is remanded. Entitlement to service connection for a kidney disability, claimed as a "hump" on the kidney, is remanded. Entitlement to service connection for polycythemia, to include as secondary to hemorrhoids and hiatal hernia with GERD, is remanded. Entitlement to an initial rating in excess of 10 percent for right knee degenerative joint disease (DJD) with limitation of flexion is remanded. Entitlement to an initial rating in excess of 10 percent for right knee DJD with lateral instability prior to November 29, 2018 is remanded. Entitlement to an initial rating in excess of 20 percent for right knee DJD with limitation of flexion since November 29, 2018 is remanded. Entitlement to an initial rating in excess of 10 percent for left knee DJD is remanded. Entitlement to an initial disability rating in excess of 10 percent for hemorrhoids is remanded. Entitlement to an initial rating in excess of 30 percent for hiatal hernia with GERD prior to November 29, 2011 is remanded. Entitlement to an initial rating in excess of 10 percent for hiatal hernia with GERD from November 29, 2011 to February 4, 2020 is remanded. Entitlement to an initial rating in excess of 60 percent for hiatal hernia with GERD since February 4, 2020 is remanded. Entitlement to a total disability rating for compensation purposes based on individual unemployability due to service-connected disability (TDIU) is remanded. REASONS FOR REMAND The Veteran had active service from November 1969 to May 1971. These matters are before the Board of Veterans' Appeals(Board) on appeal from rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). In September 2005, the Veteran testified before a Veterans Law Judge (VLJ) at a Travel Board hearing regarding the issues of entitlement to service connection for polycythemia and entitlement to an increased rating for hemorrhoids. In June 2010, he testified before a different VLJ at a Central Office hearing regarding the issue of entitlement to service connection for polycythemia. The VLJs who presided over those hearings are no longer affiliated with the Board. In August 2014, the Veteran testified at a Video Conference hearing before the undersigned VLJ regarding the issues on appeal. Transcripts of all hearings have been associated with the claims file. In a February 2015 decision, the Board denied the Veteran's claims for entitlement to service connection for sleep apnea, a right shoulder disability, a dental condition, a kidney disability, a right arm disability, polycythemia; and entitlement to increased ratings for hemorrhoids and a hiatal hernia with GERD. The Veteran appealed the decision to the United States Court of Appeals for Veterans Claims (Court). In an April 2017 Joint Motion for Remand (JMR) the parties agreed that the August 2014 Board hearing did not comply with the requirements set forth in Bryant v. Shinseki, 23 Vet. App. 488 (2010) and that the Board did not provide an adequate statement of reasons and bases for the denial of the Veteran's claim for an increased rating for GERD. In an April 2017 order, the Court granted the parties' JMR vacating the February 2015 decision and remanding the claims to the Board for further adjudication. Considering the JMR's conclusion with respect to Bryant, the Veteran was offered the opportunity to appear at another Board hearing. In a June 2018 statement, he stated that he did not want another Board hearing. As the Veteran indicated that he does not wish to appear at another hearing, he has waived his right to an additional hearing on these issues, and further discussion of compliance with Bryant is unnecessary. See 38C.F.R.§20.1304 (2020). These claims were last before the Board in July 2019, when they were remanded for additional development. 1. Entitlement to service connection for a dental condition, claimed as extracted teeth, is remanded. 2. Entitlement to service connection for a right shoulder disability is remanded. 3. Entitlement to service connection for a right arm disability is remanded. 4. Entitlement to service connection for OSA is remanded. 5. Entitlement to service connection for a kidney disability, claimed as a "hump" on the kidney, is remanded. 6. Entitlement to service connection for polycythemia, to include as secondary to hemorrhoids and hiatal hernia with GERD, is remanded. 7. Entitlement to an initial rating in excess of 10 percent for right knee DJD with limitation of flexion prior to November 29, 2018 is remanded. 8. Entitlement to an initial rating in excess of 20 percent for right knee DJD with limitation of flexion since November 29, 2018 is remanded. 9. Entitlement to an initial rating in excess of 10 percent for right knee DJD with lateral instability is remanded. 10. Entitlement to an initial rating in excess of 10 percent for left knee DJD is remanded. 11. Entitlement to an initial disability rating in excess of 10 percent for hemorrhoids is remanded. 12. Entitlement to an initial rating in excess of 30 percent for hiatal hernia with GERD prior to November 29, 2011 is remanded. 13. Entitlement to an initial rating in excess of 10 percent for hiatal hernia with GERD from November 29, 2011 to February 4, 2020 is remanded. 14. Entitlement to an initial rating in excess of 60 percent for hiatal hernia with GERD since February 4, 2020 is remanded. 15. Entitlement to a TDIU is remanded. Unfortunately, there has not been substantial compliance with the Board's previous remand directives. In pertinent part, the July 2019 remand directed that the Veteran be provided a VA knee examination and that the examiner must state where in the range of motion the Veteran reports that he begins to experience pain. While the Veteran was provided a VA knee examination in January 2021 and the examiner stated that the Veteran had pain with flexion and extension, the examiner did not state the degree where the pain started or ended. Additionally, while the prior VA examination reports consistently indicated that the Veteran had a right knee meniscal tear and a February 2020 VA examination report indicated that the Veteran had a left knee meniscal tear, the January 2021 VA examiner indicated that there was no meniscal condition in either knee. Accordingly, another remand is required. Stegall v. West, 11 Vet. App. 268, 271 (1998). The July 2018 and July 2019 remands directed that the VistA Imaging record referenced in January 23, 2017 and September 25, 2017 VA record entries be obtained. It does not appear those records have been associated with the claims file. Accordingly, another remand is required. Stegall v. West, 11 Vet. App. 268, 271 (1998). The evidence indicates there may be outstanding relevant VA treatment records. A VA treatment record from April 15, 2021 indicates that the Veteran was to return for a follow up appointment in August 2021. VA treatment records after May 14, 2021 have not been associated with the claims file. Additionally, VA treatment records from August 22, 2017 and February 11, 2019 note that gastroenterology records from Dr. Hobley from August 17, 2017, September 14, 2017, October 24, 2017, and November 28, 2017 had been scanned into VistA Imaging. A VA record from July 18, 2019 indicates that records from Long View Orthopedics from June 17, 2019 and June 24, 2019 had been scanned. It does not appear that the referenced records have been associated with the claims file. A remand to obtain the outstanding records is required. The matters are REMANDED for the following actions: 1. Ask the Veteran to provide the names and addresses of all medical care providers who have recently treated him for his claimed disabilities. After securing any necessary releases, request any relevant records identified. In addition, obtain updated VA treatment records as well as the VistA Imaging records referenced in the January 23, 2017, August 22, 2017, September 25, 2017, February 11, 2019, and July 18, 2019 VA record entries. If any such records are determined to be unavailable, issue a formal finding of unavailability and notify the Veteran of this fact. 2. After the above record development is completed to the extent possible, schedule the Veteran for a VA knee examination to determine the current nature and severity of his service-connected right and left knee disabilities. The claims file should be reviewed in conjunction with the examination. All indicated tests should be conducted and the results reported. Range of motion testing should be undertaken, and should be tested actively and passively, in weight bearing, and after repetitive use. (a.) For each range of motion testing conducted, the examiner must state where in the range of motion the Veteran reports that he begins to experience pain. If the examiner is unable to conduct any of 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. (b.) The examiner should also state whether there is likely to be additional range of motion loss due to flare-ups and due to pain, weakness, fatigability, or incoordination. If so, the examiner is asked to describe the additional loss, in degrees, if possible. In doing so, the examiner should 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. (c.) If it is not possible to provide a specific measurement, or an opinion regarding flare-ups, symptoms, or functional impairment 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). (d.) The examiner should reconcile the January 2021 VA examiner's finding that the Veteran did not have a meniscal tear in either knee with the prior examination reports. See VA examination reports from March 2015 VA knee examination reports from September 2017, November 2018 (noting a right knee meniscal tear); February 2020 VA knee examination report (noting bilateral knee meniscal tears); and January 2021 VA knee examination report (noting no history of a meniscal condition in either knee). A complete rationale should be provided for all opinions and conclusions expressed. K. A. BANFIELD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Anderson 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.