Citation Nr: 21039896 Decision Date: 07/01/21 Archive Date: 07/01/21 DOCKET NO. 17-01 333 DATE: July 1, 2021 REMANDED Entitlement to a rating more than 10 percent for bilateral hearing loss prior to February 15, 2017 is remanded. Entitlement to a rating more than 30 percent for bilateral hearing loss after February 15, 2017 is remanded. Entitlement to a rating more than 10 percent for left knee patellofemoral pain syndrome status post patella fracture (left knee disability) is remanded. REASONS FOR REMAND The Veteran had active duty service from August 1975 to March 1976. The Board notes that during the pendency of the appeal, an April 2017 rating decision increased the Veteran's bilateral hearing loss from 10 percent to 30 percent disabling, effective February 15, 2017 and the appeal now includes staged ratings for each period. 1. Entitlement to a rating more than 10 percent for bilateral hearing loss prior to February 15, 2017 is remanded. 2. Entitlement to a rating more than 30 percent for bilateral hearing loss after February 15, 2017 is remanded. 3. Entitlement to a rating more than 10 percent for left knee patellofemoral pain syndrome status post patella fracture (left knee disability) is remanded. Review of the record reveals that a remand is required in order to provide new VA examinations. To that end, the Board notes that the Veteran's most recent and pertinent VA audiological and knee examinations took place in February 2017. In December 2020, the Veteran and his representative indicated that the Veteran's symptoms had worsened since his most recent and pertinent VA examinations. Particularly, the Veteran complained of reduced hearing that requires the use of hearing aids. He also indicated that his left knee disability causes him increased pain and discomfort. See Green v. Derwinski, 1 Vet. App. 121 (1991) (VA has a duty to conduct a thorough and contemporaneous examination of the Veteran in an increased rating claim); Schafrath v. Derwinski, 1 Vet. App. 589 (1991); see also Snuffer v. Gober, 10 Vet. App. 400, 403 (1997) (a Veteran is entitled to a new examination after a two-year period between the last VA examination and the Veteran's contention that the pertinent disability had increased in severity). The Board also notes that the February 2017 VA knee examination may not comport with the Court's holdings in Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011), Sharp v. Shinseki, 29 Vet. App. 26, 32 (2017), and Correia v. McDonald, 28 Vet. App. 158, 169-70 (2016). Given the Veteran's recent complaints and significant length of time since last being examined, contemporaneous VA examinations are thereby warranted. Finally, there may be outstanding or pertinent treatments available for review. The Board finds that it would be prudent for an attempt to obtain any outstanding treatment records be made. The matters are REMANDED for the following action: 1. With the assistance of the Veteran as necessary, identify and obtain any outstanding, relevant treatment records, and associate them with the Veteran's electronic claims file. If the Agency of Original Jurisdiction (AOJ) cannot locate or obtain such records, it must specifically document the attempts that were made to locate or obtain them, and explain in writing why further attempts to locate or obtain any government records would be futile. The AOJ must then: (a) notify the claimant of the specific records that it is unable to obtain; (b) explain the efforts VA has made to obtain that evidence; and (c) describe any further action it will take with respect to the claim. All attempts to obtain records should be documented in the Veteran's electronic claims file. 2. Then, after pertinent records are obtained, but whether or not records are obtained, schedule the Veteran for a new VA audiological examination to assess the current severity of his bilateral hearing loss disability. The audiologist is to be provided access to the Veteran's electronic claims file and must specify in the report that these records have been reviewed. The evaluation should be in accordance with the criteria delineated in 38 C.F.R. § 4.85. The VA audiologist must fully describe the functional effects caused by the bilateral hearing loss disability in the final report. 3. Also, schedule the Veteran for a VA examination to determine the severity of the left knee disability during the entire period on appeal, to the extent possible. The entire claims file must be made available to and be reviewed by the examiner. Any indicated tests and studies must be accomplished, and all clinical findings must be reported in detail and correlated to a specific diagnosis. An explanation for all opinions expressed must be provided. The relevant Disability Benefits Questionnaire must be utilized. The examiner must describe any functional limitation due to pain, weakened movement, excess fatigability, pain with use, or incoordination. Additional limitation of motion during flare-ups and following repetitive use due to limited motion, excess motion, fatigability, weakened motion, incoordination, or painful motion must also be noted. Stability testing should also be accomplished as indicated. If the Veteran describes flare-ups of pain, the examiner must offer an opinion as to whether there would be additional limits on functional ability during flare-ups. All losses of function due to problems such as pain should be equated to additional degrees of limitation of flexion and extension beyond that shown clinically. Review of the prior examinations and entry of these findings retrospectively, to the extent possible, is also requested. If it is not possible to make such findings based on the evidence of record for those time periods, the medical rationale for that conclusion should be set out. Should the examiner state that he or she is unable to offer such an opinion without resorting to speculation based on the fact that the examination was not performed during a flare-up, the examiner is directed to do all that reasonably can be done to become informed before such a conclusion, to include ascertaining adequate information-i.e. frequency, duration, characteristics, severity, or functional loss-regarding his flares by alternative means. It is vital that all sources of information, including the Veteran's own statements, be used in describing the above. The examiner must also indicate the point during range of motion testing that motion is limited by pain. Specifically, the examiner should provide the degree at which during range of motion testing the Veteran experiences pain. The examiner must provide estimates of the range of motion and pain of the right knee in active motion, passive motion, weight-bearing, and non-weight-bearing. 4. After the development requested has been completed, the AOJ should review any report to ensure that it is in complete compliance with the directives of this remand. If the report is deficient in any manner, the AOJ must implement corrective procedures at once. MICHAEL D. LYON Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Miller, 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.