Citation Nr: 21031685 Decision Date: 05/24/21 Archive Date: 05/24/21 DOCKET NO. 16-47 585 DATE: May 24, 2021 REMANDED Entitlement to an increased disability rating in excess of 20 percent for osteoarthritis of the right knee is remanded. Entitlement to service connection for erectile dysfunction, to include as secondary to service-connected hypertension, is remanded. Entitlement to service connection for a left ear hearing loss disability is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty from July 1977 to September 1999. The Veteran appeals a June 2014 rating decision by the Agency of Original Jurisdiction (AOJ). In January 2019 the Veteran's claims were remanded for additional development. Upon review of the record, the Board finds that further evidentiary development is necessary and remands the case to ensure compliance with the Board's prior remand instructions. See Stegall v. West, 11 Vet. App. 268, 271 (1998). 1. Entitlement to an increased disability rating in excess of 20 percent for osteoarthritis of the right knee is remanded. The January 2019 Board decision remanded the Veteran's increased rating claim for a new VA examination that appropriately included joint testing for pain on both active and passive motion, in weight-bearing and non-weight-bearing range of motion (ROM), and adequately accounted for flare-ups. See Correia v. McDonald, 28 Vet. App. 158, 169-70 (2016); Sharp v. Shulkin, 29 Vet. App. 26, 35 (2019). The Veteran was afforded a VA examination in December 2019. In pertinent part, the examiner noted that the Veteran did not have, nor ever had, a meniscus condition. This finding is markedly different from a September 2013 right knee MRI report in which recurrent meniscal tears were suspected, and the May 2014 VA examination report, which noted the Veteran had a meniscal condition with frequent episodes of locking, pain, and joint effusion. Moreover, the examiner reported the Veteran had no history of joint instability in the knee, despite findings of knee instability in a May 2013 record from Dr. R.C. and a February 2015 VA medical record noting mild anterior posterior instability by drawer sign. Given these inconsistencies, the Veteran should be afforded a new VA examination so the Board may have a more complete basis upon which to evaluate the Veteran's knee disability for all applicable rating criteria. 2. Entitlement to service connection for erectile dysfunction, to include as secondary to service-connected hypertension, is remanded. The January 2019 Board decision remanded the Veteran's erectile dysfunction to obtain a new opinion that addressed whether the Veteran's erectile dysfunction was caused or aggravated by his service-connected hypertension. The clinician observed that the Veteran's hypertension medications were less likely to cause erectile dysfunction than others, and that there was no clinical evidence of a cause and effect relationship between hypertension or medications used to treat it at this time. However, the clinician failed to address whether the medications chronically aggravated the Veteran's erectile dysfunction. This is a necessary component for any secondary service connection analysis. See El-Amin v. Shinseki, 26 Vet. App. 136, 140-41 (2013). Accordingly, an additional opinion is required. 3. Entitlement to service connection for a left ear hearing loss disability is remanded. The January 2019 Board decision remanded the Veteran's hearing loss claim to afford the Veteran a new audiological examination. The Veteran was afforded a new examination in December 2019. The examiner opined that the Veteran's left ear hearing loss disability was less likely than not related to service, based on the audiological findings contained in the Veteran's entrance and separation examinations showing no significant change in thresholds and the research contained in the Institute of Medicine's 2005 report on noise exposure and military service. Notably, audiograms contained in the Veteran's service treatment records dated in July 1992 and May 1997 show threshold shifts at 6000 Hertz to 45 and 35, respectively. Additionally, the Veteran's separation audiogram showed an increase at 6000 Hertz from his entrance audiogram; however the examiner did not address this increase. Additionally, in a May 1997 Physical Fitness Inquiry contained in the Veteran's service treatment records, he endorsed poor hearing in one or both ears. In light of these inconsistencies an additional opinion is required. The Board observes that in the positive opinion associating the Veteran's right ear hearing loss disability with his military service, the examiner noted the Veteran was exposed to significant noise in the military without occupational and/or recreational noise exposure. 4. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. The May 2014 VA knee examination report noted the Veteran had to leave his job due to the functional impact of his right knee disability. The December 2019 VA knee examination report also noted that the Veteran's disability affected his ability to perform occupational tasks involving extended weight bearing, climbing, squatting, and kneeling. Further, in a December 2020 Appellate Brief, the Veteran's representative noted the Veteran's knee disability affected his employment status. Consequently, the issue of entitlement to TDIU has been raised in this case and will be considered by the Board. See Rice v. Shinseki, 22 Vet. App. 447, 453-55 (2009). Nevertheless, the Veteran's work history is unclear. As such, additional development is required on remand. Additionally, as the TDIU claim is premised on the severity of the Veteran's service-connected right knee disability, the issue of TDIU is inextricably intertwined with that issue. Accordingly, the Board will defer adjudication on the matter. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). The matters are REMANDED for the following actions: 1. Obtain any outstanding VA treatment records relevant to treatment the Veteran received for his claimed disabilities that are not already of record. All obtained records should be associated with the evidentiary record. If any identified records are not obtainable (or none exist), the Veteran and his representative should be notified, and the record clearly documented. 2. Obtain a complete post-service employment and education history of the Veteran. The employment history should indicate the type of position, whether any position held was full time or part time (including hours per week worked if part time) and the wages earned. Any employment accommodations should be described in detail. 3. Thereafter, schedule the Veteran for an examination of the current severity of his right knee disability. The examiner must test the Veteran's active motion, passive motion, and pain with weight-bearing and without weight-bearing (if applicable). The examiner must also attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. The examiner should identify any symptoms and functional impairments due to the Veteran's condition and discuss the effect of the Veteran's condition on any occupational functioning and activities of daily living. If it is not possible to provide a specific measurement, or an opinion regarding flare-ups, symptoms, or functional impairment without speculation, the examiner must 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), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). 4. After the development outlined in #1 above is complete, obtain an opinion from a qualified clinician to determine the nature and etiology of the Veteran's erectile dysfunction. The evidentiary record, including a copy of this remand, must be made available to and be reviewed by the clinician. It is up to the discretion of the reviewing clinician as to whether an examination is necessary to provide an adequate opinion. After the record review and examination of the Veteran, if deemed necessary, the reviewing clinician is asked to respond to the following inquiries: a) Is it at least as likely as not that the erectile dysfunction manifested during active service or is otherwise causally or etiologically related to active service? b) Is it at least as likely as not that the erectile dysfunction was caused by the Veteran's service-connected hypertension, to include medication used to treat the hypertension? c) Is it at least as likely as not that the erectile dysfunction was aggravated by the Veteran's service-connected hypertension, to include medication used to treat the hypertension? In rendering these opinions, the reviewing clinician is advised that the Veteran is competent to report his symptoms and history. If the reviewing clinician rejects the Veteran's reports, he or she must provide an explanation for such rejection. The reviewing clinician is not to improperly discount the Veteran's lay statements or mistakenly rely on an absence of medical evidence in the record to support his or her conclusions. The complete rationale for all opinions should be set forth and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. If an opinion cannot be provided without resorting to mere speculation, the reviewing clinician must provide a complete explanation for why an opinion cannot be rendered. In so doing, the reviewing clinician must explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). 5. After the development outlined in #1 above is complete, obtain an opinion from a qualified clinician to determine the nature and etiology of the Veteran's left ear hearing loss disability. The evidentiary record, including a copy of this remand, must be made available to and be reviewed by the clinician. It is up to the discretion of the reviewing clinician as to whether an examination is necessary to provide an adequate opinion. After the record review and examination of the Veteran, if deemed necessary, the reviewing clinician is asked to opine whether it is at least as likely as not that the Veteran's left ear hearing loss disability is related to, or had its onset during, the Veteran's active service. 6. After the above development has been completed to the extent possible, readjudicate the claims. If any benefit sought remains denied, provide the Veteran and his representative with a supplemental statement of the case (SSOC), and return the case to the Board, if otherwise in order. DONNIE R. HACHEY Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Pelican, Luke H. 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.