Citation Nr: 21024365 Decision Date: 04/22/21 Archive Date: 04/22/21 DOCKET NO. 16-54 068 DATE: April 22, 2021 REMANDED Entitlement to an initial disability evaluation in excess of 10 percent from January 1, 2012 for right-knee disorder is remanded. Entitlement to service connection for left-ear hearing loss is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from September 1991 to August 2011. 1. Entitlement to an initial disability evaluation in excess of 10 percent from January 1, 2012 for right-knee disorder. 2. Entitlement to service connection for left-ear hearing loss. In its July 2019 decision, the Board denied these claims. The Veteran appealed to United States Court of Appeals for Veterans Claims (the Court), which in December 2020 vacated and remanded the claims to the Board for action consistent with the Joint Motion for Partial Remand (JMPR), agreed to and submitted by the parties. The parties first state the Veteran will only pursue his appeal for a higher rating for right-knee disorder from January 1, 2012 and for service connection for left-ear hearing loss only. The parties agree that the Board erred by not ensuring that VA complied with its duty to assist to provide examinations adequate for rating purposes. Specifically, the parties agree that vacatur and remand are warranted for the Board to obtain a new VA medical examination for right knee for the period beginning January 1, 2012, because the July 2016 examination is inadequate because it does not comply with the Court’s holding in Correia v. McDonald, 28 Vet. App. 158 (2016), requiring VA joint examinations, when possible, to include range of motion results for active and passive motion, in weight-bearing and non-weight-bearing circumstances. Correia, 28 Vet. App. at 168-69. As the July 2016 VA examiner did not indicate such testing was conducted or produce relevant findings, the examination is adequate and the Board must remand and obtain an adequate examination. Regarding left-ear hearing loss, the July 2016 VA examiner found left-ear testing results were invalid because the Veteran’s responses were not consistent for the amount and type of hearing loss admitted in the left ear and further found the word-recognition score was not appropriate for several reasons, making the combined use of Puretone average and word-recognition scores inappropriate. The Board therefore based its July 2019 denial of the hearing loss claim on a February 2011 examination showing no hearing loss. The parties to the JMPR agree that remand by the Board is necessary to obtain a new VA examination for left-ear hearing loss. The matters are REMANDED for the following action: 1. Contact the Veteran and/or his representative for information pertaining to any current treatment for right-knee disorder, to include arthritis, and for hearing loss at any VA facility and by any private treatment provider. Obtain any records of the above treatments not yet associated with the claims file and associate them with the claims file. The assistance of the Veteran and/or his representative should be requested in obtaining any records of recent treatment as indicated. All attempts to obtain records should be documented in the claims file. 2. After all additional records have been obtained and associated with the claims file, but whether or not records are obtained, arrange for VA examinations by examiners with appropriate specialties for producing findings for knee disorders, to include arthritis, and for hearing loss. The complete electronic claims file must be made available to the examiners in conjunction with the opinion reviews and/or examination. The examiners should detail all findings. The examiner for knee disorders is requested to provide findings and diagnoses as to the nature, extent, and current severity of the Veteran’s service- right-knee disorder, to include arthritis. The examiner is specifically requested to produce range of motion measurements showing testing for active and passive motion and in weight-bearing and non-weight-bearing maneuvers and in comparison to the opposite joint (where appropriate). If the foregoing testing is impracticable, induces discomfort or pain or is medically inappropriate, the examiner should provide an explanation as to why. The examiner is also reminded to make findings reflecting the extent of impairment of function due to repeated use over time and due to flare-ups. If it is found that pain, weakness, fatigability, or incoordination significantly limit functional ability with repeated use over a period of time or during a flare-up, it will be insufficient for the examiner to fail to make any range of motion findings on the basis that testing did not occur during repeated use over time or during a flare-up or to make findings “would be mere speculation” or “there is no conceptual or empirical basis for making such a determination without directly observing function under these conditions” or similar statements. Even if flare-ups or pain on repeated use over time are neither reported nor exhibited during the examination, once again, it will be insufficient for the examiner to make entries such as “not applicable,” “would be mere speculation” or similar statements or fail make any findings whatsoever. The examiner must elicit from the Veteran details as to the actual effects, or what might be the effects, on function from repeated use over a period of time or from flare-ups when pain, weakness, fatigability, or incoordination significantly limit functional ability. After doing so, the examiner is requested for VA rating purposes to estimate the loss of range of motion and function in terms of actual degrees, using his or her professional medical training, knowledge, and experience. Any opinion or commentary rendered by the examiner must be accompanied by a rationale, by which conclusions are supported by references to and discussion of findings on examination, to clinical findings in the medical evidence of record and/or to accepted medical literature. The examiner is requested to comment in the rationale on any relevant opinions found in the record. The examiner is further requested to acknowledge, address, consider, and discuss the Veteran’s lay statements found in the record, and all lay evidence of other persons, as it pertains to right-knee disorder. The Board urges the examiner to note that findings or opinions rendered without addressing and discussing the lay evidence of the Veteran and others will be deemed insufficient for VA adjudication purposes. 3. The examiner for hearing loss, after making findings and diagnoses as to the nature, extent, and current severity of the Veteran’s non-service-connected left-ear hearing loss, is requested to render an opinion addressing the following: Whether it is at least as likely as not (a 50 percent or greater probability) or less likely than not (less than a 50 percent probability) that left-ear hearing loss was incurred during active service or caused by an event, injury, or illness during active service. The opinion rendered by the examiner must be accompanied by a rationale, by which conclusions are supported by references to and discussion of findings on examination, to clinical findings in the medical evidence of record and/or to accepted medical literature. The examiner is requested to comment in the rationale on any relevant opinions found in the record. The examiner is further requested to acknowledge, address, consider, and discuss the Veteran’s lay statements found in the record and any other lay evidence appearing in the record. The Board urges the examiner to   note that findings or opinions rendered without addressing and discussing the lay evidence of the Veteran and others will be deemed insufficient for VA adjudication purposes. MICHAEL D. LYON Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board P. Franke, 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.