Citation Nr: 21027290 Decision Date: 05/05/21 Archive Date: 05/05/21 DOCKET NO. 15-00 271 DATE: May 5, 2021 REMANDED Entitlement to service connection for left ear hearing loss is remanded. Entitlement to disability ratings in excess of 10 percent prior to January 27, 2020, and in excess of 30 percent from March 1, 2021, (exclusive of the period of temporary total (100 percent) rating assigned under 38 C.F.R. § 4.30 ) for left total knee arthroplasty, is remanded. Entitlement to a compensable initial rating for limitation of extension of left knee associated with left total knee arthroplasty prior to January 27, 2020, is remanded. REASONS FOR REMAND The Veteran served on active duty in the U.S. Army from April 1982 to May 1995, November 2001 to September 2002, and November 2002 to October 2003. These matters come before the Board of Veterans' Appeals (Board) on appeal of August 2013 and August 2015 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO). These matters were previously remanded by the Board in May 2018 for further development. The case has since been returned to the Board for appellate review. During the pendency of the appeal, the RO issued a rating decision in June 2020, granting service connection for right ear hearing loss and increasing the Veteran's disability rating for his service-connected left knee total arthroplasty from 10 percent to 100 percent from January 27, 2020 to February 28, 2021 for the period of convalescence after his prosthetic replacement surgery, and 30 percent from March 1, 2021 and thereafter. Although the service connection for right ear hearing loss is a full grant of that issue on appeal and therefore will not be further addressed by the Board, the Board observes that the Veteran was not granted the maximum schedular rating for his service-connected left knee disability, so those claims remain pending. See AB v. Brown, 6 Vet. App. 35 (1993). 1. Entitlement to service connection for left ear hearing loss is remanded. Pursuant to the May 2018 Board remand, an addendum medical opinion was obtained to determine the nature and etiology of the Veteran's bilateral hearing loss in May 2019. The remand requested that the VA examiner provide answers to specific questions in the remand directives relating to the Veteran's three separate periods of service. The examiner answered most of the questions in the remand directives, opining that there was clear and unmistakable evidence that the Veteran's left ear hearing loss pre-existed his first period of service (from April 1982 to May 1995) and was not aggravated beyond natural progression during his first period of service. The examiner also opined that it was less likely than not that the Veteran's left ear hearing loss was caused by or the result of the noise he was exposed to during his first period of service. The examiner further opined that it was at least as likely as not that his left ear hearing loss pre-existed his second period of service (from November 2001 to September 2002). The examiner also opined that it was less likely as not that the Veteran's left ear hearing loss was aggravated by significant noise exposure during his second period of service. However, the May 2019 examiner did not address the questions requested in the May 2018 Board remand relating to the Veteran's third period of service (from November 2002 to October 2003) in the addendum medical opinion. The Board sincerely regrets the additional delay occasioned by multiple remands, but the Board errs when it fails to ensure substantial compliance with a Board remand. Stegall v. West, 11 Vet. App. 268, 271 (1998) (Board remand confers a right on a claimant to compliance with the remand order). Where the Board fails to ensure substantial compliance, remand is appropriate. Stegall, 11 Vet. App. at 271. Accordingly, this issue is remanded for an additional VA opinion. 2. Entitlement to increased ratings for service-connected left knee disability following a total left knee arthroplasty is remanded. 3. Entitlement to a compensable initial rating for limitation of extension of left knee associated with left total knee arthroplasty prior to January 27, 2020, is remanded. Pursuant to the May 2018 Board remand directives, the Veteran was afforded a VA examination to determine the current severity of his left knee disability in March 2019; however, since that examination the Veteran has had a total left knee arthroplasty. See Medical Treatment Record Non-Government Facility, received March 2020. The Board notes that the RO awarded the Veteran a 100 percent disability rating for his left knee disability for a period of thirteen months convalescence following his total left knee arthroplasty on January 27, 2020. Now that this period of convalescence post total knee arthroplasty has passed, the Veteran should be afforded a VA knee conditions examination to determine the current severity of his left knee osteoarthritis following his total left knee arthroplasty. The matters are REMANDED for the following action: 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, the Agency of Original Jurisdiction (AOJ) should request any relevant records identified. In addition, obtain updated VA treatment records. If any requested records are unavailable, the Veteran and his representative should be notified of such. 2. After the record development is completed, obtain an addendum opinion from an appropriate medical professional to determine the nature and etiology of the Veteran's left ear hearing loss. Based on a review of the record, the examiner must respond to the following: (a.) Is there clear and unmistakable evidence that the Veteran's left ear hearing loss pre-existed his third period of active service (from November 2002 to October 2003) and was NOT aggravated (worsened beyond natural progression) during his third period of active service? (b.) If there is NOT clear and unmistakable evidence that the Veteran's left ear hearing loss both pre-existed his third period of active service (from November 2002 to October 2003) AND was NOT aggravated during his third period of active service, is it at least as likely as not (50 percent or greater probability) that such disability is otherwise related to his third period of active service, to include consideration of any threshold shifts or noise exposure therein? A detailed rationale is requested for all opinions provided. If the examiner opines, at any point, that any noted threshold shifts between any two points during the Veteran's third period of active service is NOT significant, he or she must explain why that is so. The examiner is also asked to consider the possibility, as the Veteran alleges, that hearing loss can be developed over time and was not notable until long after service, but that the progression of such disease was nonetheless triggered by such hazardous noise exposure and threshold shifts in service. The examiner must provide any and all opinions as to etiology in the form of a probability and must provide a complete rationale for any opinion expressed. 3. Schedule the Veteran for a VA knee conditions examination to determine the current severity of his service-connected left knee disability following a total left knee arthroplasty. The claims file should be reviewed by the examiner. All necessary tests should be performed, and the results reported. All symptomatology associated with the left knee disability should be reported. The Board recognizes the practical difficulties of scheduling an examination in view of the COVID-19 epidemic, and requests flexibility and understanding in affording the Veteran an opportunity for an examination if an examination is deemed necessary. If a VA examination proves not feasible for any reason, the claims file should still be reviewed by an appropriate professional for the purpose of providing the requested opinions. 4. After completing the above development, and any other development deemed necessary, readjudicate the issues on appeal. If any benefit sought on appeal remains denied, provide an additional supplemental statement of the case to the Veteran and his representative, and return the appeal to the Board for appellate review, after the Veteran and his representative have had an adequate opportunity to respond. B. G. LeMoine Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. Fairlie, 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.