Citation Nr: 21070546 Decision Date: 11/24/21 Archive Date: 11/24/21 DOCKET NO. 17-03 841 DATE: November 24, 2021 REMANDED Entitlement to service connection for left ear hearing loss is remanded. Entitlement to an increased rating in excess of 10 percent for a low back disability is remanded. Entitlement to an increased rating in excess of 10 percent for left knee tendonitis is remanded. Entitlement to an increased rating in excess of 10 percent for traumatic arthritis of the bilateral big toes is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Marine Corps from August 1985 to June 1994. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2012 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). In January 2020, the Veteran testified at a Board hearing before a Veterans' Law Judge no longer with the Board. The transcript of the hearing has been associated with the record. The Veteran was notified of his right to request a new hearing in August 2021; the Veteran did not respond within 30 days of receipt of the letter, so the Board will proceed with the case. 1. Entitlement to service connection for left ear hearing loss is remanded. The Board remanded the matter for further development in April 2020, to include affording the Veteran a VA examination for the claimed disability in August 2020. Subsequently, the Veteran was awarded service connection for right ear hearing loss in August 2020. Thereafter, in December 2020, the Veteran underwent an additional examination for tinnitus, which as since been awarded service connection due to in-service noise exposure. The findings and lay statements during the December 2020 VA examination suggest that the Veteran's left ear hearing thresholds may have worsened since his hearing loss was last examined. Thus, a new examination is needed to determine if the Veteran now meets the criteria for a left ear hearing loss disability for VA disability compensation purposes. See 38 C.F.R. § 3.385. 2. Entitlement to a rating in excess of 10 percent for a low back disability is remanded. The Veteran underwent a VA back examination in August 2020. The examiner indicated that he was unable to test the Veteran's lumbar spine range of motion (ROM) because the Veteran was sitting in a wheelchair and had an amputated left lower leg bandaged and connected to a wound pump. The examiner found that the Veteran's spine was not ankylosed; the Veteran could twist and turn about 15 degrees each way while sitting and could bend forward even when sitting. However, the examiner did not otherwise provide comments or findings regarding the Veteran's ROM for forward flexion or extension of the thoracolumbar spine. The Board recognizes the difficulty in making such determinations, but the Board may only accept a VA examiner's statement that he or she cannot offer an opinion without resorting to speculation, after determining that this is not based on the absence of procurable information or on a particular examiner's shortcomings or general aversion to offering an opinion on issues not directly observed. Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017). Further, VA examiners must obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment of flares from the veterans themselves, when a flare-up is not observable at the time of examination. Id. Moreover, in the April 2020 Board remand, the Board directed that the examiner provide specific measurements, or an opinion regarding flare-ups, and that if it not possible to do so, 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). In this regard, the Board does not find that the examiner used all available resources to provide his or her best estimate based on the examination findings and statements of the Veteran before failing to provide the requested opinion. Hence, remand is required to attempt to obtain the necessary ROM findings. 3. Entitlement to a rating in excess of 10 percent for left knee tendonitis is remanded. The Veteran underwent a VA knee examination in August 2020. The examiner indicated that he was unable to perform ROM testing as the Veteran's left leg was wrapped in bandages. As such, ROM testing results were not reported. No subsequent attempts have been undertaken to test the Veteran's left knee ROM. However, in the April 2020 Board remand, the Board directed that an examination be obtained in which the examiner conducted complete ROM testing. Again, the Board recognizes the difficulty in performing such study in this case, but law and VA guidelines anticipate that examiners will offer opinions based on estimates derived from information procured from relevant sources, including the lay statements of veterans. Sharp v. Shulkin, 29 Vet. App. at 35. The Board again does not find that the examiner used all procurable information before failing to provide an estimation. Hence, remand is required to obtain the necessary ROM ranges. 4. Entitlement to a rating in excess of 10 percent for traumatic arthritis of the bilateral big toes is remanded. The Veteran's traumatic arthritis of both big toes is rated under 38 C.F.R. § 4.71a Schedule of ratings for the musculoskeletal system, Diagnostic Code (DC) 5010, posttraumatic arthritis. The Board notes that the Veteran underwent amputation of his left foot in August 2018. The Veteran underwent a VA foot conditions examination in August 2020. The examiner noted that the Veteran experienced limited flexion and extension of the right great toe due to pain and flare-ups. In this regard, the April 2020 Board remand directed that an examination be obtained in which the examiner attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, if reported, the degree of functional loss during flare-ups, and discuss the effect of service-connected big toes on any occupational functioning and activities of daily living. However, again, no ROM estimation was provided. The Board again does not find that the examiner used all procurable information before failing to provide an estimation. Hence, remand is required to obtain the necessary ROM ranges. The matters are REMANDED for the following action: 1. Obtain any updated treatment records and associate those records with the claims file. 2. Schedule the Veteran for an examination to assess the claimed left ear hearing loss disability. The claims file must be reviewed by the examiner. The examiner must perform an evaluation for hearing impairment as required by 38 C.F.R. § 4.85, which shall include a controlled speech discrimination test (Maryland CNC) and puretone audiometry test. The examination report must include the results of all testing and identify whether the Veteran meets the requirements for a left ear hearing loss disability, as defined by 38 C.F.R. § 3.385. 3. Schedule the Veteran for an examination to assess the severity of his back disability. The claims file must be reviewed by the examiner in conducting the examination. The examination report must include the findings for complete range of motion testing and provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran's low back disability under the rating criteria. The examiner must also consider and discuss the Veteran's statements regarding the severity and functional impact of his disability, to include his description of flare ups and the severity, frequency and duration of his symptoms. The examiner must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups and after repetitive use over time. To the extent possible, the examiner should identify any symptoms and functional impairments due to the low back disability alone and discuss the effect of the Veteran's low back disability on any occupational functioning and activities of daily living. 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). The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinions. If the examiner rejects the Veteran's reports of symptomatology, he or she must provide a reason for doing so. A complete rationale for any opinions rendered should be provided. 4. Schedule the Veteran for an examination to assess the severity of his left knee disability. The claims file must be reviewed by the examiner in conducting the examination. The examination report must describe all pathology, symptoms (frequency and severity), and functional impairment associated with such disability in sufficient detail to allow for application of the pertinent rating criteria, based on the examination, review of the record, and any tests or studies deemed necessary. The examiner must also consider and discuss the Veteran's statements regarding the severity and functional impact of his disability, to include his description of flare ups and the severity, frequency and duration of his symptoms. The examiner must complete range of motion studies that include the Veteran's active motion, passive motion, pain with weight-bearing and without weight-bearing. The examiner should also note any further functional limitations due to pain, weakness, fatigue, lack of endurance, incoordination, or any other symptom resulting in functional loss. If the examiner is unable to conduct such testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. Based upon a review of the medical records, lay statements submitted in support of the claim, and/or statements elicited from the Veteran during the examination, state whether the Veteran experiences flare-ups of his knees, and how he characterizes the additional functional loss during a flare-up. If the Veteran describes experiencing flare-ups, identify the frequency, duration, precipitating factors, and alleviating factors. 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). The Board notes that the lack of opportunity to observe during a flare-up and/or after repeated use over time is an insufficient basis for not estimating the functional effects in terms of degrees of range of motion. The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinions. A complete rationale for any opinions rendered should be provided. 5. Schedule the Veteran for an examination to assess the severity of big toes disability. The claims file must be reviewed by the examiner in conducting the examination. The examination report must describe all pathology, symptoms (frequency and severity), and functional impairment associated with the Veteran's big toes in sufficient detail to allow for application of the pertinent rating criteria, based on an examination, review of the record, and any tests or studies deemed necessary. The examiner must also consider and discuss the Veteran's statements regarding the severity and functional impact of his disability, to include his description of flare ups and the severity, frequency and duration of his symptoms. Attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, if reported, the degree of functional loss during flare-ups, and discuss the effect of service-connected big toes on any occupational functioning and activities of daily living. If it is not possible to provide a specific 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). The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinions. If the examiner rejects the Veteran's reports of symptomatology, he or she must provide a reason for doing so. (Continued on the next page) A complete rationale for any opinions rendered should be provided. DELYVONNE M. WHITEHEAD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Q. Alli, 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.