Citation Nr: 21023970 Decision Date: 04/21/21 Archive Date: 04/21/21 DOCKET NO. 16-32 256 DATE: April 21, 2021 REMANDED Entitlement to service connection for kidney disease is remanded. Entitlement to service connection for gout is remanded. Entitlement to a compensable rating for hearing loss is remanded. Entitlement to a rating in excess of 10 percent for status post right knee ACL tear repair for limitation of flexion is remanded. Entitlement to a combined rating in excess of 80 percent from February 1, 2003, through July 10, 2012 is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Air Force from January 1983 to January 2003. These matters come before the Board of Veterans’ Appeals (Board) on appeal from May 2013 and June 2015 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO). In a June 2016 VA Form 9, the Veteran requested a hearing before a member of the Board. In October 2020 correspondence, the Veteran withdrew the request. The Board notes that VA is to construe the claims of Veteran’s liberally, focusing on the area of the body or description of the condition claimed rather than the specific diagnosis noted by the Veteran. Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). Thus, to the extent the Veteran filed a claim seeking service connection for kidney failure, the Board is liberally construing the Veteran’s claim as a claim seeking service connection for kidney disease. Finally, the Board notes that in an August 2008 decision, the Board granted a separate 20 percent rating for instability and subluxation of the right knee, a separate 10 percent rating for limitation of flexion of the right knee, and an initial 20 percent rating for a left shoulder sprain. The Board’s decision was implemented by the RO in an April 2021 rating decision that found clear and unmistakable error had been committed in failing to implement the Board’s August 2008 decision, and awarded the disabilities effective from February 1, 2003. As a result of the April 2021 rating decision, the Veteran’s combined schedular rating was increased to 80 percent for the period from February 1, 2003 through August 8, 2017. As the maximum rating has not been assigned, the claim has been characterized accordingly and remains on appeal. See AB v. Brown, 6 Vet. App. 35 (1993). 1. Entitlement to service connection for kidney disease is remanded. 2. Entitlement to service connection for gout is remanded. The Veteran contends that his kidney disease had its onset in service, or alternatively, is secondary to medications prescribed for his service-connected status post right knee ACL tear repair. The Veteran also contends that his gout is secondary to his kidney disease. The Veteran was afforded a VA examination and opinion in October 2019. The examiner diagnosed chronic kidney disease with a listed onset date of 1992 (during service). The examiner indicated that there was no evidence of kidney failure, and thus no opinion was provided. The Board finds the October 2019 VA examination to be inadequate. Inasmuch as the examiner did not provide an opinion as to the etiology of the Veteran’s diagnosed chronic kidney disease, the opinion is inadequate. The examiner also did not provide any reasoning or evidence for the listed diagnosis date of 1992. Hence, the Veteran should be afforded another examination and opinion as to the etiology of his kidney disease. The Board also notes that the Veteran has submitted in support of his claim a May 2017 VA medical opinion by Dr. B.F. in which it was explained that review of the Veteran’s treatment records revealed decreased kidney function dating back to 1992. Dr. B.F. stated that the Veteran was prescribed multiple anti-inflammatory medicines (Naproxen, Vioxx and Bextra) that were damaging and highly likely caused kidney abnormalities. However, it is unclear what evidence Dr. B.F. found to support the conclusion the Veteran had decreased kidney function dating back to 1992, and the Veteran should be provided an opportunity to contact Dr. B.F. for submission of an addendum opinion as to what specific evidence there is in the Veteran’s service treatment records to support decreased kidney function back to 1992. Additionally, because the Veteran’s gout claim is inextricably intertwined with the kidney disease claim remaining on appeal, appellate consideration of entitlement to service connection for gout is deferred pending resolution of the kidney disease claim on appeal. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991); see also Tyrues v. Shinseki, 23 Vet. App. 166, 177 (2009) (en banc) (explaining that claims are inextricably intertwined where the adjudication of one claim could have a significant impact on the adjudication of another claim). Outstanding treatment records should also be secured. 3. Entitlement to a compensable rating for hearing loss is remanded. A Statement of the Case (SOC) was issued in May 2016. Since the May 2016 SOC, relevant treatment records have been associated with claims file, including a November 2018 VA audiological examination. This evidence has not yet been reviewed by the Agency of Original Jurisdiction (AOJ). Further, there is no waiver of consideration of this new evidence. Accordingly, a remand is required for the AOJ to review this new evidence in the first instance and issue a Supplemental Statement of the Case (SSOC). As noted above, the most recent VA examination was conducted in November 2018. Under the circumstances, to ascertain a more complete picture of the Veteran’s hearing loss disability throughout the appeal period, the Board finds that VA is required to afford the Veteran a contemporaneous examination to assess the current nature, extent, and severity of his hearing loss. See Palczewski v. Nicholson, 21 Vet. App. 174, 181 (2007); Snuffer v. Gober, 10 Vet. App. 400, 403 (1997). Thus, a VA examination should be conducted on remand. 4. Entitlement to a rating in excess of 10 percent for status post right knee ACL tear repair for limitation of flexion is remanded. The most recent VA examination in this case was conducted in November 2018, over two years ago. The Board finds that a contemporaneous examination is necessary to assess the current nature, extent, and severity of his status post right knee ACL tear repair for limitation of flexion. See Palczewski, 21 Vet. App. at 181; Snuffer v. Gober, 10 Vet. App. at 403; see also Correia v. McDonald, 28 Vet. App. 158 (2016); Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017). 5. Entitlement to a combined rating in excess of 80 percent from February 1, 2003, through July 10, 2012 is remanded. After review of the claims file, the Board finds that this matter must be remanded for additional development. The Veteran’s claim is inextricably intertwined with the service connection claims remaining on appeal, appellate consideration of entitlement to a combined rating in excess of 80 percent from February 1, 2003, through July 10, 2012, is deferred pending resolution of the remaining claims on appeal. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991); see also Tyrues v. Shinseki, 23 Vet. App. 166, 177 (2009) (en banc) (explaining that claims are inextricably intertwined where the adjudication of one claim could have a significant impact on the adjudication of another claim). The matters are REMANDED for the following action: 1. Obtain any outstanding VA treatment records. 2. Send the Veteran a letter requesting he contact Dr. B.F. at the Tupelo Veterans Clinic and submit an addendum opinion to his May 2017 letter specifying what evidence was found in the service treatment records to support a finding of decreased kidney function dating back to 1992, as indicated in the May 2017 letter. 3. Schedule the Veteran for a VA examination (or telehealth interview, review of record, etc., if an in-person examination is not feasible) to determine the nature and etiology of any current kidney disease. The examiner is asked to address the following: (a) Whether it is at least as likely as not that any kidney disease, is related to or had its onset in service. (b) Whether it is at least as likely as not that any kidney disease is proximately due to his service-connected status post right knee ACL tear repair and chronic medication usage; or (c) Whether it is at least as likely as not that any kidney disease has been aggravated by his service-connected status post right knee ACL tear repair and chronic medication usage. All opinions provided should be supported by rationale. The examiner is asked to review and consider the May 2017 medical opinion by Dr. B.F. If the evaluating clinician is unable to provide an opinion without resorting to speculation, the clinician should explain why that is so and note 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. 4. Schedule a VA audiological examination (or telehealth interview, review of record, etc., if an in-person examination is not feasible) to determine the current severity of the Veteran’s hearing loss. The examiner must encompass pure tone threshold (in decibels) and Maryland CNC testing. In addition to objective test results, the examiner should fully describe the functional effects caused by his hearing disability and the impact of such on his employability. 5. Schedule the Veteran for a VA examination (or telehealth interview, review of record, etc., if an in-person examination is not feasible) to determine the current nature and severity of his right knee disability. All findings should be reported in detail. The examiner should identify all right knee pathology found to be present. The examiner should conduct all indicated tests and studies, to include range of motion studies. The joints involved should be tested in both active and passive motion, in weight-bearing and non-weight-bearing. 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. The examiner should describe any pain, weakened movement, excess fatigability, instability of station and incoordination present. The examiner should also state whether the examination is taking place during a period of flare-ups. If not, the examiner should ask the Veteran to describe the flare-ups he experiences, including: frequency, duration, characteristics, precipitating and alleviating factors, severity and/or extent of functional impairment he experiences during a flare-up of symptoms and/or repeated use over time. Based on the Veteran’s lay statements and the other evidence of record, the examiner should provide an opinion estimating any additional degrees of limited motion caused by functional loss during a flare-up or after repeated use over time. If unable to provide such an opinion without resorting to speculation, please provide a rationale for this conclusion, with specific consideration of the instructions in the VA Clinician’s Guide to estimate, “per [the] veteran,” what extent, if any, flare-ups affect functional impairment. If unable to opine without speculation, the examiner should indicate whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e., no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e., additional facts are required, or the examiner does not have the needed knowledge or training). STEVEN D. REISS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Marley, 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.