Citation Nr: 21040011 Decision Date: 07/02/21 Archive Date: 07/02/21 DOCKET NO. 18-11 098 DATE: July 2, 2021 REMANDED Entitlement to service connection for a bilateral hearing loss disability is remanded. Entitlement to service connection for a skin disorder, to include urticaria and xerosis cutis, is remanded. Entitlement to service connection for a lumbar spine disability is remanded. Entitlement to an initial rating in excess of 10 percent for gastroesophageal reflux disease (GERD) is remanded. Entitlement to a rating in excess of 10 percent for the residuals of a right knee anterior cruciate ligament tear (right knee disability) with limitation of flexion is remanded. Entitlement to an initial rating in excess of 10 percent for right knee instability is remanded. Entitlement to a total disability rating based upon individual unemployability due to service-connected disability (TDIU) is remanded. REASONS FOR REMAND The Veteran had active service from September 2006 to May 2009, to include service in Southwest Asia. These matters are before the Board of Veterans' Appeals (Board) on appeal from rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). In August 2020, the Veteran testified before a Veterans Law Judge (VLJ) at a virtual hearing. A transcript of his testimony is of record. In September 2020 and April 2021 correspondences, the Veteran was informed that the VLJ who conducted his hearing was no longer employed at the Board, and asked if he desired another Board hearing. He was advised that if he did not respond within 30 days, the Board would assume that he did not desire another hearing. No response was received. These matters were last before the Board in November 2020, when they were remanded for additional development. 1. Entitlement to service connection for a bilateral hearing loss disability is remanded. 2. Entitlement to service connection for a skin disorder, to include urticaria and xerosis cutis, is remanded. 3. Entitlement to service connection for a lumbar spine disability is remanded. 4. Entitlement to an initial rating in excess of 10 percent for GERD is remanded. 5. Entitlement to a rating in excess of 10 percent for a right knee disability with limitation of flexion is remanded. 6. Entitlement to an initial rating in excess of 10 percent for right knee instability is remanded. 7. Entitlement to a TDIU is remanded. Unfortunately, there has not been substantial compliance with the November 2020 remand directives. While the Veteran was sent a letter requesting that he complete and return the enclosed VA Form 21-4142 in December 2020, the letter was not sent to the Veteran's address of record and it was returned as undeliverable. Similarly, the January 2021 Supplemental Statement of the Case (SSOC) was also sent to an outdated address and returned as undeliverable. On remand, the RO should mail a VA Form 21-4142 request letter and a copy of the January 2021 SSOC to the Veteran's address of record. See Stegall v. West, 11 Vet. App. 268, 271 (1998); 38 C.F.R. § 19.31(c) (2020). While the Veteran was provided a VA knee examination in January 2021, further clarification is required. Although the examiner indicated that the Veteran had pain with flexion, the examiner did not indicate where the pain started or ended. Additionally, while the examiner stated that she was unable to describe the Veteran's flare-ups in terms of range of motion and noted that passive range of motion testing could not be performed or was not medically appropriate," no explanation was provided. Accordingly, the Veteran should be provided another VA knee examination. Stegall v. West, 11 Vet. App. 268, 271 (1998). While an opinion regarding the Veteran's skin claim was obtained in January 2021, the examiner's rationale only addressed the Veteran's anthrax vaccination. It did not otherwise address the Veteran's service in Southwest Asia or indicate whether his chronic urticaria was consistent with a medically unexplained chronic multi-symptom illness. Accordingly, further clarification is required. Stegall v. West, 11 Vet. App. 268, 271 (1998). While an opinion regarding the Veteran's lumbar spine claim was obtained in January 2021, the examiner's rationale relied solely on the absence of documented treatment and did not, as requested, address the Veteran's reported injury in 2007. Additionally, while an opinion regarding secondary service connection was obtained in January 2017, the opinion does not address the aggravation prong of secondary service connection. See Allen v. Brown, 7 Vet. App. 439, 449 (1995). Accordingly, further clarification is required. The evidence also indicates there may be outstanding relevant VA treatment records. A May 17, 2018 VA record notes that the Veteran was discharged against medical advice for gastrointestinal pain and that records regarding his discharge had been scanned. A November 7, 2016 VA record indicates that the Veteran's "gulf war reported exposures list was scanned." It does not appear that the referenced records have been associated with the claims file. A remand to obtain the outstanding records is required. There also appear to be outstanding Vet Center treatment records. An August 26, 2019 VA treatment record indicates that the Veteran was seeking Vet Center treatment for his service-connected posttraumatic stress disorder. To date, complete Vet Center treatment records have not been obtained. As such records are potentially relevant to his TDIU claim, they must be requested on remand. The record indicates that there are outstanding private treatment records. VA treatment records from June 24, 2011 and June 8, 2012 indicate that the Veteran received treatment for his skin disability at the Allergy Clinic of Tulsa and Siloam Springs Memorial Hospital. To date, these records have not been otherwise obtained. On remand, reasonable efforts should be made to obtain them. There also appear to be outstanding Workman's Compensation records. In a March 2017 statement, the Veteran reported that receiving Workman's Compensation benefits for his right knee. As such records could be relevant to the pending knee and TDIU claims, on remand reasonable efforts must be made to obtain any pertinent Workers' Compensation records. Finally, a December 17, 2019 VA Form 5655 indicates that the Veteran continued to be self-employed. As the Veteran's self-employment information is relevant to the TDIU claim, verification of his self-employment income is required. The matters are REMANDED for the following actions: 1. Ask the Veteran to provide the names and addresses of all medical care providers who have recently treated him for his claimed disabilities, including Allergy Clinic of Tulsa, Siloam Springs Memorial Hospital, any chiropractic treatment, and any Vet Center treatment. After securing any necessary releases, request any relevant records identified. In addition, obtain updated VA treatment records dated since April 20, 2020 as well as the VistA Imaging records referenced in the May 17, 2018 and November 7, 2016 VA record entries. If any requested records are unavailable, the Veteran should be notified of such. 2. After receiving any necessary contact information and authorization from the Veteran, request copies of the Veteran's Workman's Compensation records. If the records are not available, the claims file should be annotated to reflect such, and the Veteran notified of such. 3. Ask the Veteran to fully complete a VA Form 21-8940, Veterans Application for Increased Compensation Based on Unemployability, to include detailing all education and training as well as all full-time or part-time employment after July 2016. For all periods of self-employment, ask him to provide financial information, such as income tax return forms that include his net and gross profits. 4. After records development is completed to the extent possible, forward the claims file to a VA clinician to obtain an addendum opinion regarding the Veteran's skin claim. If an examination is deemed necessary to respond to the questions presented, one should be scheduled. Following review of the claims file, the clinician should opine: (a.) For any skin disability, state whether the etiology and pathophysiology of the Veteran's disability is inconclusive, partially understood, or fully understood. (b.) If both the etiology and pathophysiology are partially understood or fully understood, then state whether it is at least as likely as not (a 50 percent or greater probability) that the skin disability was incurred in, or is otherwise related to active service? The clinician shoulder address the service treatment records from July 16, 2008, March 6, 2009, and April 9, 2009 noting an erythemic foot lesion, inflamed neck lesions, and benign skin neoplasm pigmented nevus. The clinician should also address the June 24, 2011 VA record noting hives for the last two years, June 8, 2012 VA record noting the Veteran's report of a recurrent itchy rash since returning from deployment in 2008, and March 31, 2014 VA diagnosis of folliculitis. A complete rationale must be provided for all opinions expressed. 5. After records development is completed to the extent possible, forward the claims file to a VA clinician to obtain an addendum opinion regarding the Veteran's lumbar spine disability. If an examination is deemed necessary to respond to the questions presented, one should be scheduled. Following review of the claims file, the clinician should opine: (a.) Whether it is at least as likely as not (50 percent probability or greater) that any lumbar spine disability had its onset during service or is otherwise related to service, including the Veteran's reported back injury in approximately 2007 while getting out of a vehicle during "vehicle rollover training." (b.) Whether it is at least as likely as not (50 percent probability or greater) that any lumbar spine disability was caused by the service-connected right knee disability, to include due to any altered gait. (c.) If not caused by the service-connected right knee disability, is it at least as likely as not that any lumbar spine disability is worsened beyond natural progression (aggravated) by his service-connected right knee disability, to include due to any altered gait? If the clinician finds that the Veteran's lumbar spine disability was aggravated by his service-connected right knee disability, the clinician should attempt to quantify the level of aggravation beyond the baseline level of the lumbar spine disability. A complete rationale should be provided for all opinions and conclusions expressed. 6. After the above record development is completed to the extent possible, schedule the Veteran for a VA examination to determine the current nature and severity of his service-connected right knee disability. The claims file should be reviewed in conjunction with the examination. All indicated tests should be conducted and the results reported. Range of motion testing should be undertaken, and should be tested actively and passively, in weight bearing, and after repetitive use. (a.) For each range of motion testing conducted, the examiner must state where in the range of motion the Veteran reports that he begins to experience pain. If the examiner is unable to conduct any of the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. (b.) The examiner should also state whether there is likely to be additional range of motion loss due to flare-ups and due to pain, weakness, fatigability, or incoordination. If so, the examiner is asked to describe the additional loss, in degrees, if possible. In doing so, the examiner should elicit relevant information as to the Veteran's flares or ask him to describe the additional functional loss, if any, he suffered during flares and then estimate the Veteran's functional loss due to flares based on all the evidence of record, including the Veteran's lay information. (c.) 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). (d.) The examiner should indicate whether there is any lateral instability and/or recurrent subluxation in the right knee. If instability is present, the examiner should, assess whether such instability is slight, moderate, or severe and whether such instability or subluxation requires or has at any time required an assistive device or devices. If an assistive device or devices is required because of right knee instability, the examiner should identify the device or devices and state whether the it was medically prescribed. If the assistive device or devices is required for the right knee for a reason other than instability, the examiner should identify the symptomatology for which the device or devices is used. K. A. BANFIELD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Anderson 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.