Citation Nr: 21028002 Decision Date: 05/10/21 Archive Date: 05/10/21 DOCKET NO. 16-15 267 DATE: May 10, 2021 REMANDED Entitlement to an initial compensable rating for mesangiopathic glomerulopathy is remanded. Entitlement to an initial compensable rating for a left knee strain is remanded. Entitlement to an initial compensable rating for right knee arthritis is remanded. Entitlement to an initial rating in excess of 10 percent for residuals of a closed fracture of the thoracic spine is remanded. Entitlement to service connection for left ear hearing loss is remanded. REASONS FOR REMAND The Veteran had active duty service from September 2007 to March 2015. These matters come before the Board of Veterans' Appeals (Board) on appeal from an August 2015 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO), which, in pertinent part, denied service connection for left ear hearing loss and granted service connection for residuals of a closed fracture of the thoracic spine and assigned a 10 percent disability rating, effective March 28, 2015, and granted service connection for a left knee strain, right knee arthritis, and mesangiopathic glomerulopathy and assigned noncompensable ratings, effective March 28, 2015, respectively. 1. Entitlement to an initial compensable rating for mesangiopathic glomerulopathy is remanded. The Veteran underwent a VA examination in June 2015, at which time he was assessed with mesangiopathic glomerulopathy. The examiner noted that he did not suffer from any renal dysfunction at that time. Subsequent VA treatment records in July 2015 indicate that he suffered from chronic hematuria since his renal failure and nephropathy in service. He was seen by a private specialist and a kidney biopsy was performed. He was assessed with history of heat stroke with renal failure and resulting IgA nephropathy with hematuria. Subsequently, in December 2017, he reported that he had chronic hematuria since service. After a review of the evidence, the Board finds that a remand is warranted in order for the RO to request and obtain the private treatment records. Moreover, the Board finds that a new VA examination is warranted. In this regard, the Veteran reported chronic hematuria following the June 2015 VA examination and this examination was performed almost six years ago. Accordingly, the Board finds that a new VA examination should be performed to assess the current severity of the Veteran's service-connected mesangiopathic glomerulopathy. 2. Entitlement to an initial compensable rating for a left knee strain is remanded; 3. Entitlement to an initial compensable rating for right knee arthritis is remanded; 4. Entitlement to an initial rating in excess of 10 percent for residuals of a closed fracture of the thoracic spine is remanded. The Veteran underwent VA examinations in June 2015 for his bilateral knee and lumbar spine disabilities. While range of motion testing was performed, the examiner did not perform and record passive range of motion and/or non-weight bearing testing. Moreover, there was no weight bearing range of motion testing for the lumbar spine. See Correia v. McDonald, 28 Vet. App. 158 (2016). Lastly, the examiner indicated that it was outside her professional expertise to provide an estimated range of motion loss after repetitive use. Accordingly, the Board finds that the June 2015 examinations are insufficient to determine the present claims and a remand is warranted in order for new VA examinations to be performed to assess the severity of the Veteran's service-connected lumbar spine and bilateral knee disabilities. Lastly, a July 2015 VA treatment record indicated that x-rays of the Veteran's knees were performed and that the report was contained in VistA images. However, these VistA images are not contained in the claims file. Accordingly, the Veteran's VistA images associated with his VA treatment records should be associated with the claims file on remand. 5. Entitlement to service connection for left ear hearing loss is remanded. The Veteran underwent a VA examination in June 2015. Although some hearing loss was noted in his left ear that the examiner found was directly related to service, his hearing loss at that time was not a disability for VA compensation purposes. See 38 C.F.R. § 3.385. Following this examination, in a May 2018 VA examination, the Veteran reported that hearing aids were recommended and that he had difficulty in noisy environments, difficulty hearing in group situations, and difficulty hearing from a distance. Given that the latest VA examination was performed almost six years ago, and the Veteran's subsequent statements in May 2018 indicating that hearing aids were recommended and his reported hearing difficulties, the Board finds that a new VA examination is warranted in order to assess whether the Veteran's left ear hearing loss reaches the level of hearing impairment for VA compensation purposes. See 38 C.F.R. § 3.385. Lastly, a statement of the case (SOC) was issued in January 2016. However, additional VA treatment records were associated with the claims file from 2016 to 2018 and a VA examination in May 2018 reported the Veteran's complaints of hearing loss. However, the RO did not prepare a supplemental statement of the case (SSOC) considering this newly VA generated evidence. Accordingly, a remand is required for the issuance of an appropriate SSOC that considers the additional VA treatment records, VA examinations, and any other relevance evidence since the SOC. See 38 C.F.R. §§ 19.31, 19.37, 20.1305(c). The matters are REMANDED for the following actions: 1. Obtain and associate with the claims file the Veteran's updated VA treatment records from May 2018 to the present. 2. Obtain and associate with the claims file the VistA images associated with the claims file, including the x-rays of the Veteran's knees and correlating report. 3. Ask the Veteran to identify any relevant private treatment, including the kidney biopsy and private specialist, and furnish the appropriate release(s) for the medical records. If he fails to furnish the necessary release, he should be advised to obtain the records and submit them to VA. 4. After completion of #1, #2, and #3, schedule the Veteran for a VA examination by an appropriate clinician to assess the severity of his service-connected mesangiopathic glomerulopathy. The claims file, including a copy of this remand, should be reviewed and such review should be noted in the examination report. The examiner should identify and discuss any residuals of his mesangiopathic glomerulopathy, including hematuria. The examiner should discuss whether the Veteran's mesangiopathic glomerulopathy manifests in renal dysfunction and assess the severity of any associated albumin or proteinuria, hematuria, edema, hypertension, and/or kidney function. The examiner must provide a comprehensive rationale for each opinion provided. The examiner should discuss the Veteran's service-treatment records and post-service treatment records. The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports are to be considered in formulating any opinion. If any opinion cannot be given without resorting to speculation, the examiner should explain why 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. As appropriate, the AOJ should conduct additional development or supplement the record. 5. After completion of #1, #2, and #3, schedule the Veteran for a VA examination by an appropriate clinician to determine the severity of his service-connected right knee and left knee disabilities. The claims file, including this remand, should be reviewed by the examiner to become familiar with the Veteran's pertinent medical history and such review should be noted in the examination report. Complete range of motion testing should be accomplished and the examiner should note the point at which there is pain on motion, if any. Specifically, active and passive range of motion testing as well as weight-bearing and non-weight-bearing testing must be conducted and recorded. The examiner should indicate how far back (i.e., one year, two years, etc.) these results would apply. The examiner should also note any additional loss of function with repetition due to factors such as pain, weakness, fatigability, and pain on movement. The extent of additional limitation should be expressed in degrees. If flare ups are reported, the examiner must express an opinion on whether the flare-ups are associated with additional functional loss. If so, he or she should estimate the degree of lost motion during such flare-ups. The examiner is to attempt to elicit information from the record and the Veteran regarding the severity, frequency, duration, or functional loss manifestations during flare-ups before determining that an estimate of motion loss in terms of degrees cannot be given. Should the examiner maintain that they cannot do so without resorting to speculation, they must explain why this is so. Note: Any inability to furnish such an estimate must be predicated on a lack of medical knowledge among the medical community at large and not the insufficient knowledge of the examiner. The presence or absence of ankylosis should be noted. The examiner is to indicate the presence or absence of lateral instability and/or recurrent subluxation in the Veteran's right and/or left knee, if any. If instability is not found, the examiner should so state. If instability is present, the examiner is to state whether such instability is slight, moderate, or severe. If instability is present and found to be present from February 7, 2021, and ongoing, the examiner should also state whether it manifests in a sprain, incomplete ligament tear, complete ligament tear (repaired, unrepaired, or failed repair), causing persistent instability and/or whether a medical provider prescribed an assistive device and/or bracing for ambulation. If a diagnosed patellar instability is found involving the patellofemoral complex (quadriceps tendon, the patella, and the patellar tendon), the examiner should discuss whether it manifests in recurrent instability, required surgical repair, and/or requires a prescription from a medical provider for a brace, cane, or walker. Further, the examiner must indicate whether there is cartilage, semilunar, dislocated, with frequent episodes of locking, pain, and effusion of the joint or partial removal of the semilunar cartilage. The examiner must also indicate whether there is an impairment of the tibia and fibula. If so, the examiner should discuss whether there is nonunion of, with loose motion, requiring a brace or malunion of with marked, moderate, or slight knee or ankle disability. If so, from February 7, 2021, and ongoing, the examiner should also discuss whether it requires treatment, the duration of such treatment, and whether it is responsive to such treatment, including conservative, surgical, or shoe orthotics treatment. The examiner must provide a comprehensive rationale for each opinion provided. The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports are to be considered in formulating any opinion. If any opinion cannot be given without resorting to speculation, the examiner should explain why 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. As appropriate, the AOJ should conduct additional development or supplement the record. 6. After completion of #1, #2, and #3, schedule the Veteran for a VA examination to determine the nature and severity of his service-connected thoracic spine disability. The claims file, including this remand, should be reviewed by the examiner to become familiar with the Veteran's pertinent medical history. Complete range of motion testing should be accomplished and the examiner should note the point at which there is pain on motion, if any. Specifically, active and passive range of motion testing as well as weight-bearing and non-weight-bearing testing must be conducted and recorded. If possible, the examiner should indicate how far back (i.e., one year, two years, etc.) these results would apply. The examiner should also note any additional loss of function with repetition due to factors such as pain, weakness, fatigability, and pain on movement. The extent of additional limitation should be expressed in degrees. If flare-ups are reported, the examiner must express an opinion on whether the flare-ups are associated with additional functional loss. If so, he or she should estimate the degree of lost motion during such flare-ups. The examiner must attempt to elicit information from the record and the Veteran regarding the severity, frequency, duration, or functional loss manifestations during flare-ups before determining that an estimate of motion loss in terms of degrees cannot be given. Any inability to furnish such an estimate must be predicated on a lack of medical knowledge among the medical community at large and not the insufficient knowledge of the examiner. If the examiner provides an estimate, he or she may indicate their level of confidence in such estimate on a scale of 1 to 5, with 1 being least confident and 5 being the most confident. The examiner should provide an opinion as to whether there is favorable or unfavorable ankylosis of the thoracolumbar or entire spine. The examiner should also note whether the Veteran suffers from intervertebral disc syndrome and, if so, whether he is prescribed bed rest and treatment by a physician. The examiner must provide a comprehensive rationale for each opinion provided. The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports are to be considered in formulating any opinion. If any opinion cannot be given without resorting to speculation, the examiner should explain why 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. As appropriate, the AOJ should conduct additional development or supplement the record. 7. After completion of #1, #2, and #3, schedule the Veteran for an audiological examination to determine the current severity of any left ear hearing loss. The claims file, including a copy of this remand, must be reviewed and associated with the claims file. The examiner should opine whether it is at least as likely as not that any current hearing loss is due to active service. The examiner should be advised that a positive nexus was found by the June 2015 examiner. The examiner must provide a comprehensive rationale for each opinion provided. The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports are to be considered in formulating any opinion. If any opinion cannot be given without resorting to speculation, the examiner should explain why 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. As appropriate, the AOJ should conduct additional development or supplement the record. (Continued on the next page) 8. Thereafter, readjudicate the issues on appeal, to include consideration of the additional VA examination reports and treatment records from the date of the January 2016 SOC. If the benefits sought on appeal are not granted in full, issue the Veteran and his representative a Supplemental Statement of the Case (SSOC) and provide the Veteran an opportunity to respond. Eric S. Leboff Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. (Hurley) Merrick 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.