Citation Nr: 21070553 Decision Date: 11/24/21 Archive Date: 11/24/21 DOCKET NO. 17-45 629 DATE: November 24, 2021 REMANDED Entitlement to a rating in excess of 10 percent for right knee osteoarthritis is remanded. Entitlement to a rating in excess of 10 percent for left knee osteoarthritis is remanded. Entitlement to a rating in excess of 20 percent for thoracolumbar spine degenerative arthritis with intervertebral disc syndrome (IVDS) is remanded. Entitlement to a rating in excess of 10 percent for left ankle sprain is remanded. Entitlement to a rating in excess of 10 percent for cluster headaches is remanded. Entitlement to a compensable rating for bilateral hearing loss is remanded. REASONS FOR REMAND The Veteran served on active duty from May 1971 to October 1991. These matters are before the Board of Veterans' Appeals (Board) on appeal from a June 2016 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). Procedurally, the Board notes that the Veteran requested a videoconference hearing before a Veterans Law Judge (VLJ). 08/29/2017, Form 9 (checking box 8B and requesting a hearing). However, the Veteran later withdrew the hearing request. 07/23/2020, VA 21-4138. 1. Entitlement to a rating in excess of 10 percent for right knee osteoarthritis is remanded. 2. Entitlement to a rating in excess of 10 percent for left knee osteoarthritis is remanded. The Veteran last underwent a VA examination in May 2016. The examiner noted the Veteran experienced pain in range of motion (ROM) testing for both knees, which resulted in functional loss. The examiner also remarked that pain could significantly limit functional ability during flare-ups or when the either knee is used repeatedly over a period of time, but the examiner could not state exactly what degree of additional range of motion loss would be due to pain without resort to speculation. 05/17/2016, C&P Exam. However, the record suggests that the Veteran's symptoms have worsened since the May 2016 examination. For example, the Veteran has since asserted that his bilateral knee conditions have increased in severity. 10/20/2017, VA 646 Statement. And, the Veteran has reported that his medical conditions have been persistent. 08/29/2017, Form 9. Furthermore, the Veteran contends that the VA examination did not adequately consider the full severity of his conditions, to include possible incapacitating episodes. 06/30/2016, NOD. Accordingly, the Board finds that an additional VA examination is warranted to assess the current severity of the Veteran's left and right knee disabilities. 38 C.F.R. § 3.327(a). 3. Entitlement to a rating in excess of 20 percent for thoracolumbar spine degenerative arthritis with intervertebral disc syndrome (IVDS) is remanded. The Veteran last underwent a VA examination in May 2016. The examiner noted the Veteran experienced pain in range of motion (ROM) testing for the lumbar spine, which resulted in functional loss. The examiner also remarked that pain could significantly limit functional ability during flare-ups or when used repeatedly over a period of time, but the examiner could not state exactly what degree of additional range of motion loss would be due to pain without resort to speculation. 05/17/2016, C&P Exam. However, the record suggests that the Veteran's symptoms have worsened since the May 2016 examination. For example, the Veteran has since asserted that his lower back condition has increased in severity. 10/20/2017, VA 646 Statement. And, the Veteran has reported that his medical conditions have been persistent. 08/29/2017, Form 9. Furthermore, the Veteran contends that the VA examination did not adequately consider the full severity of his conditions, to include possible incapacitating episodes. 06/30/2016, NOD. Accordingly, the Board finds that an additional VA examination is warranted to assess the current severity of the Veteran's lower back disability. 38 C.F.R. § 3.327(a). 4. Entitlement to a rating in excess of 10 percent for left ankle sprain is remanded. The Veteran last underwent a VA examination in May 2016. The examiner noted the Veteran experienced pain in range of motion (ROM) testing for the left ankle, which resulted in functional loss. The examiner also remarked that pain could significantly limit functional ability during flare-ups or when used repeatedly over a period of time, but the examiner could not state exactly what degree of additional range of motion loss would be due to pain without resort to speculation. 05/17/2016, C&P Exam. However, the record suggests that the Veteran's symptoms have worsened since the May 2016 examination. For example, the Veteran has since asserted that his left ankle condition has increased in severity. 10/20/2017, VA 646 Statement. And, the Veteran has reported that his medical conditions have been persistent. 08/29/2017, Form 9. Furthermore, the Veteran contends that the VA examination did not adequately consider the full severity of his conditions, to include possible incapacitating episodes. 06/30/2016, NOD. Accordingly, the Board finds that an additional VA examination is warranted to assess the current severity of the Veteran's left ankle disability. 38 C.F.R. § 3.327(a). 5. Entitlement to a rating in excess of 10 percent for cluster headaches is remanded. The Veteran last underwent a VA examination in May 2016. The results from this examination provided the basis to maintain a 10 percent rating for the Veteran's cluster headaches. 05/17/2016, C&P Exam. However, the record suggests that the Veteran's symptoms have worsened since the May 2016 examination. For example, the Veteran has since asserted that his headache condition has increased in severity. 10/20/2017, VA 656 Statement. And, the Veteran has reported that his medical conditions have been persistent. 08/29/2017, Form 9. Furthermore, the Veteran contends that the VA examination did not adequately consider the full severity of his conditions, to include possible incapacitating episodes. 06/30/2016, NOD. Accordingly, the Board finds that an additional VA examination is warranted to assess the current severity of the Veteran's cluster headaches disability. 38 C.F.R. § 3.327(a). 6. Entitlement to a compensable rating for bilateral hearing loss is remanded. The Veteran last underwent a VA examination in July 2017. The results from this examination provided the basis to maintain a 10 percent rating for the Veteran's cluster headaches. 07/24/2017, C&P Exam. However, the record suggests that the Veteran's symptoms have worsened since the May 2016 examination. For example, the Veteran has since asserted that his hearing loss condition has increased in severity. 10/20/2017, VA 656 Statement. And, the Veteran has reported that his medical conditions have been persistent. 08/29/2017, Form 9. Furthermore, the Veteran contends that his hearing loss has worsened and require the use of hearing aids. 06/30/2016, NOD. Accordingly, the Board finds that an additional VA examination is warranted to assess the current severity of the Veteran's bilateral hearing loss disability. 38 C.F.R. § 3.327(a). These matters are REMANDED for the following actions: 1. Obtain any outstanding VA treatment records. Additionally, request the Veteran to submit any relevant private treatment reports or provide VA with authorization to obtain any such records. 2. After completing directive # 1, schedule the Veteran for an appropriate VA examination to determine the severity of the left and right knee disabilities. The examiner should review the virtual file, including a copy of this Remand. The examiner is asked to comment on the affect the Veteran's service-connected disabilities on his ability to function in an occupational environment and describe any functional limitations. If the Veteran describes experiencing flare ups, identify the: (a.) frequency; (b.) duration; (c.) precipitating factors; and (d.) alleviating factors. The examiner is requested to specifically address the extent, if any, of functional loss of use of the bilateral knees due to pain, painful motion, weakness or premature fatigability, incoordination, limited or excess movement, etc., including at times when the Veteran's symptoms are most prevalent-such as during flare-ups or prolonged use. If possible, these findings should be portrayed in terms of degrees of additional loss of motion. 3. After completing directive # 1, schedule the Veteran for an appropriate VA examination to determine the severity of the lower back disability. The examiner should review the virtual file, including a copy of this Remand. The examiner is asked to comment on the affect the Veteran's service-connected disabilities on his ability to function in an occupational environment and describe any functional limitations. If the Veteran describes experiencing flare ups, identify the: (a.) frequency; (b.) duration; (c.) precipitating factors; and (d.) alleviating factors. Based upon the information elicited as a result of the foregoing, state whether it is at least as likely as not (50 percent probability or greater) that during a flare up range of motion (forward flexion) is additionally limited to 30 degrees or less. Please explain why or why not. The examiner is requested to specifically address the extent, if any, of functional loss of use of the lower back due to pain, painful motion, weakness or premature fatigability, incoordination, limited or excess movement, etc., including at times when the Veteran's symptoms are most prevalent-such as during flare-ups or prolonged use. If possible, these findings should be portrayed in terms of degrees of additional loss of motion. 4. After completing directive # 1, schedule the Veteran for an appropriate VA examination to determine the severity of the left ankle sprain disability. The examiner should review the virtual file, including a copy of this Remand. The examiner is asked to comment on the affect the Veteran's service-connected disabilities on his ability to function in an occupational environment and describe any functional limitations. If the Veteran describes experiencing flare ups, identify the: (a.) frequency; (b.) duration; (c.) precipitating factors; and (d.) alleviating factors. Based upon the information elicited as a result of the foregoing, state whether it is at least as likely as not (50 percent probability or greater) that during a flare up range of motion (dorsiflexion) is additionally limited to 4 degrees or less and/or range of motion (plantar flexion) is additionally limited to 9 degrees or less. Please explain why or why not. The examiner is requested to specifically address the extent, if any, of functional loss of use of the left ankle due to pain, painful motion, weakness or premature fatigability, incoordination, limited or excess movement, etc., including at times when the Veteran's symptoms are most prevalent-such as during flare-ups or prolonged use. If possible, these findings should be portrayed in terms of degrees of additional loss of motion. 5. After completing directive # 1, schedule the Veteran for an appropriate VA examination to determine the current nature and severity of the cluster headaches disability. The examiner should elicit information from the Veteran regarding the functional effects or limitations associated with the headaches. 6. After completing directive # 1, schedule the Veteran for an appropriate VA examination to determine the current severity of the bilateral hearing loss disability, to include a description of the functional impacts of hearing loss. (CONTINUED ON THE NEXT PAGE) 7. Inform EACH examiner that a comprehensive rationale for all opinions must be provided. All pertinent evidence, including both lay and medical, should be considered. If an opinion cannot be provided without resorting to speculation, the examiner must explain why this is so and 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), the record (additional facts are required), or the examiner (does not have the knowledge or training). Paul Sorisio Veterans Law Judge Board of Veterans' Appeals Attorney for the Board David Han 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.