Citation Nr: 22016298 Decision Date: 03/21/22 Archive Date: 03/21/22 DOCKET NO. 17-57 421 DATE: March 21, 2022 ORDER The appeal seeking entitlement to an effective date prior to August 6, 2016, for the award of a 70 percent rating for residuals, mild traumatic brain injury (TBI) with migraine headaches is dismissed. New and material evidence has been received to reopen a service connection claim for eye problems. Entitlement to a temporary total rating because of treatment for a service-connected condition requiring convalescence is denied. REMANDED Entitlement to service connection for an eye disability is remanded. Entitlement to service connection for cervical spine, multilevel degenerative spondylosis, to include as secondary to service-connected disability of status-post right rotator cuff tear with chronic rotator cuff tendinitis and degenerative changes at L-4 vertebra and disc space narrowing at L5-S1 vertebrae, is remanded. Entitlement to service connection for an upper respiratory/breathing condition is remanded. Entitlement to a compensable disability rating for bilateral hearing loss is remanded. Entitlement to a disability rating in excess of 20 percent for status-post right rotator cuff tear with chronic rotator cuff tendinitis is remanded. Entitlement to an initial compensable disability rating for patellofemoral pain of the right knee is remanded. Entitlement to a disability rating in excess of 10 percent for left knee patellofemoral degenerative joint disease is remanded. FINDINGS OF FACT 1. During the September 2021 Board hearing, prior to the promulgation of a decision by the Board, the Veteran indicated, through his representative, that he was withdrawing his appeal as to the claim for entitlement to an effective date prior to August 6, 2016 for the 70 percent rating for residuals, mild TBI with migraine headaches. 2. In an unappealed May 1989 rating decision the claim of service connection for eye problems resulting from venereal disease was denied. 3. Evidence received since the last final rating decision in May 1989 raises a reasonable possibility of substantiating the claim of service connection for eye problems resulting from venereal disease. 4. The Veteran underwent surgery in August 2015 for removal of a mass beneath the skin of his left thumb. As the Veteran is not service connected for a left thumb disability, there is no basis upon which a temporary total evaluation can be granted. CONCLUSIONS OF LAW 1. The criteria for withdrawal of the issue of entitlement to an effective date prior to August 6, 2016, for the award of a 70 percent rating for residuals, mild TBI with migraine headaches are met. 38 U.S.C. § 7105(d)(5) (2012); 38 C.F.R. § 19.55 (2021). 2. The May 1989 rating decision denying service connection for eye problems resulting from venereal disease is final. 38 U.S.C. § 7105(c) (2012); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2021). 3. The additional evidence received since the May 1989 rating decision denying service connection for eye problems resulting from venereal disease is new and material, and the criteria to reopen that service connection claim are met. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2021). 4. The criteria for entitlement to a temporary total rating due to treatment or convalescence for a service-connected disability are not met. 38 U.S.C. § 1155, (2012); 38 C.F.R. § 4.30 (2021). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran, who is the appellant in this case, served on active duty in the Army from November 1978 to November 1982, and thereafter in the Army National Guard with active duty service from September 2004 to May 2005, and from June 2007 to January 2010, including service in the Southwest Asia. The Veteran's service commendations include the Purple Heart. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions dated September 2015, August 2016, and June 2017 of a Department of Veterans' Affairs (VA) Regional, the agency of original jurisdiction (AOJ). In September 2021, the Veteran testified during a virtual Board hearing before the undersigned Veterans Law Judge. A copy of the hearing transcript is of record and has been reviewed. In the title section above, the issue of entitlement to a temporary total evaluation because of treatment for a service-connected condition requiring convalescence (claimed as due to left hand surgery) has been rephrased to accurately reflect the scope of the Veteran's claim. See Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009) (holding that the scope of a claim is determined by the evidence of record); Application for Disability Compensation and Related Compensation Benefits received September 14, 2015 at pg. 2. Additionally, the October 2017 Statement of the Case adjudicated the issue of entitlement to an effective date prior to August 6, 2016 for a 100 percent rating for residuals, mild TBI with migraine headaches, the rating in effect at that time. However, in December 2017, VA proposed to reduce the rating to 70 percent, and the reduction was finalized in a July 2019 rating decision with the assignment of a 70 percent rating, effective October 1, 2019, and a further reduction to 10 percent, effective October 1, 2019. See Rating Decision dated July 3, 2019. As the reduction to 70 percent appears to be retroactive to August 6, 2016, the earlier effective date claim, dismissed herein, is rephrased to reflect a 70 percent rating. See Clemons, supra. Preliminary Matter The Board has limited the discussion below to the relevant evidence required to support its findings of fact and conclusions of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016). Withdrawal of Earlier Effective Date Claim With respect to the issue of entitlement to an effective date prior to August 6, 2016, for the award of a 70 percent rating for residuals, mild TBI with migraine headaches, the Veteran requested at the September 2021 Board hearing to withdraw the claim. The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 105(d)(5) (2012). An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 19.55(a) (2021). Withdrawal may be made by the appellant or by his or her authorized representative, and must include the appellant's name, the applicable claim number, and a statement that the appeal is being withdrawn. 38 C.F.R. § 19.55(b). In addition, an effective withdrawal of claims must be explicit, unambiguous, and accomplished with a full understanding of the consequences of such action. See DeLisio v. Shinseki, 25 Vet. App. 45, 57 (2011). In this case, the Board finds the Veteran's notice of withdrawal during the August 2021 Board hearing to be effective as the hearing testimony, reduced to a transcript now of record, contains the information required by VA regulations, and it expressly and unambiguously communicates the Veteran's intention to withdraw his claim, as well as the consequences of such action, thereby indicating a full understanding of the consequences of such action. See Board Hearing Transcript dated September 29, 2021 ("Hearing Transcript") at pg. 2. As the Veteran has withdrawn his appeal of the claim for entitlement to an effective date prior to August 6, 2016 for a 70 percent rating for residuals, mild TBI with migraine headaches, there remain no allegations of errors of fact or law for appellate consideration as to that issue. Accordingly, the Board does not have jurisdiction to review the appeal of the claim and it is dismissed. See Id.; see also Evans v. Shinseki, 25 Vet. App. 7, 15 (2011). Petition to Reopen Previously Denied Service Connection Claim Rating decisions are final, and binding, based on evidence on file at the time the claimant is notified of the decision and may not be revised on the same factual basis except by a duly constituted appellate authority. 38 C.F.R. § 3.104(a). The claimant has one year from notification of an AOJ decision to initiate an appeal by filing a Notice of Disagreement (NOD) with the decision or submitting new and material evidence, and the decision becomes final if an appeal is not perfected within the allowed time period. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.160, 20.201, 20.302. In a legacy claim (a claim not appealed under the new Appeals Modernization Act) such as this one, an exception to the finality rule is found in 38 U.S.C. § 5108, which provides that, if new and material evidence is received with respect to a claim which has been disallowed, VA shall reopen the claim and review the former disposition of the claim. New evidence is defined as existing evidence not previously submitted to agency decision makers. Material evidence means evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence previously of record and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). In determining whether evidence is new and material, the credibility of the evidence is generally presumed. Justus v. Principi, 3 Vet. App. 510, 512-513 (1992). The United States Court of Appeals for the Federal Circuit (Federal Circuit) has held, however, that evidence that is merely cumulative of other evidence in the record cannot be new and material even if that evidence had not been previously presented. Anglin v. West, 203 F.3d 1343, 1347 (2000). In deciding whether new and material evidence has been received, the Board looks to the evidence submitted since the last final denial of the claim on any basis. Evans v. Brown, 9 Vet. App. 273, 285 (1996). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is "low." Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Here, in a May 1989 rating decision, the AOJ denied the Veteran's original claim of service connection for eye problems, concluding that the evidence did not demonstrate a currently diagnosed eye disorder and no evidence of eye disease during service. See Rating Decision dated May 4, 1989. The Veteran did not appeal the May 1989 rating decision, nor was new and material evidence received within a year of issuance of the May 1989 notification letter; the rating decision therefore became final. 38 C.F.R. § 20.1103. In March 2016, the Veteran sought to reopen his service connection claim for eye problems. In an August 2016 rating decision, the AOJ declined to reopen the claim, concluding that evidence submitted in support of the claim was not new and material. See Rating Decision dated August 12, 2016. The Veteran timely submitted a NOD and perfected an appeal to the Board, and the instant appeal ensued. Based on the procedural history of the case, the last final decision pertinent to the Veteran's claim of service connection for an eye disorder was the May 1989 rating decision. Evidence of record at that time included the Veteran's March 1989 service connection claim, his statement in support of his claim, service personnel records, and service treatment records. Evidence received since the prior denial of the claim in May 1989 includes the Veteran's March 2016 service connection claim, VA treatment records, and the September 2021 Hearing Transcript. The treatment records for this period reflect a diagnosis of blepharitis, which is inflammation of the eyelids. See Dorland's Illus. Med. Dictionary at 228 (31st ed. 2007). The current diagnosis of blepharitis as well as the Veteran's September 2021 Board hearing testimony, during which he indicated that he has conjunctivitis and takes medication for it, relate to an unestablished element of the claim. Accordingly, evidence received since the May 1989 final denial is new and material. The criteria for reopening the claim are therefore met. Accordingly, evidence received since the May 1989 final denial is therefore new and material. The criteria for reopening the claim are therefore met. Temporary Total Evaluation The Veteran seeks a temporary total rating for "left hand due to surgery August 2015." See Application for Disability Compensation and Related Compensation Benefits received September 14, 2015 at pg. 2. Under 38 C.F.R. § 4.30, a total rating will be assigned if treatment of a service-connected disability resulted in (1) surgery necessitating at least one month of convalescence; (2) surgery with severe post-operative residuals or the necessity for house confinement or continued use of a wheelchair or crutches; or (3) immobilization by cast, without surgery, of one major joint or more. The threshold legal requirement for establishing entitlement to a temporary total rating under 38 C.F.R. § 4.30 is that the surgery must have been for treatment of a service-connected disability. Here, VA treatment records reflect that the Veteran underwent surgery in August 2015 for removal of a mass beneath the skin of his left thumb and returned to work by September 2015. See VA Plastic Surgery Notes dated July 22, 2015, August 24, 2015, and September 3, 2015. However, the record reflects that the Veteran is not service-connected for left thumb surgery or residuals thereof. On appeal, the Veteran attempts to recharacterize this claim to one for entitlement to a temporary total rating related to the service-connected status post left ulnar nerve injury with carpal tunnel. See Hearing Transcript at pgs. 12-13. However, this is inconsistent with the Veteran's September 2015 claim, which, as noted above, clearly specified that he sought a temporary total rating for "left hand due to surgery August 2015." VA treatment records do not reflect, and the Veteran does not assert, that the left thumb mass or the August 2015 surgery were related to the service-connected left ulnar nerve injury with carpal tunnel. The Veteran's contentions notwithstanding, the fact remains that he is not service-connected for a left thumb disability. To the extent that the Veteran now seeks to pursue a claim for entitlement to a temporary total rating regarding left elbow surgery, the Board may not adjudicate such claim in the first instance. See Bernard v. Brown, 4 Vet. App. 384, 393 (1993) (where Board proceeds to merits of a claim that the RO has not previously considered, the Board must determine whether such action prejudices the Veteran). Indeed, during the September 2021 Board hearing the Veteran referred to records of a 2008 elbow surgery at a non-VA hospital. As discussed above, the threshold legal requirement for establishing entitlement to a temporary total rating under 38 C.F.R. § 4.30 is that the surgery must have been for treatment of a service-connected disability. However, as service connection has not been granted for a left thumb disorder, the treatment in question was not for a service-connected disability and, therefore, the threshold requirement for benefits under § 4.30 is not met. The Board is unable to identify any basis upon which this claim may be granted. As the Veteran is not service connected for a left thumb disability, the claim for a temporary total rating based on convalescence due to left thumb surgery lacks legal merit and must be denied as a matter of law. See 38 C.F.R. § 4.30. See Sabonis v. Brown, 6 Vet. App. 426 (1994). REASONS FOR REMAND Although the Board regrets the additional delay, a remand is necessary to ensure that there is a complete record upon which to decide the Veteran's claims so that he is afforded every possible consideration. 38 U.S.C. § 5103A (2012); 38 C.F.R. § 3.159(c) (2021). Eye Problems VA is obligated to provide an examination and obtain a medical opinion in an initial claim of service connection when the record contains competent evidence that the claimant has a current disability or signs and symptoms of a current disability, the record indicates that the disability or signs and symptoms of disability may be associated with active service, and the record does not contain sufficient information to make a decision on the claim. 38 U.S.C. § 5103A(d) (2012); McLendon v. Nicholson, 20 Vet. App. 79, 81-83 (2006). Here, the Veteran's service treatment records include references to symptoms related to trauma and diagnoses of gonorrhea and left eye viral conjunctivitis. See Chronological Record of Medical Care entries dated May 12, 1981, July 23, 1981, and November 27, 1981. The service treatment records also reflect that the Veteran was injured in an IED blast in November 2007, with visual symptoms from polytrauma noted in May 2008. See, e.g., Recreational Therapy Initial Evaluation dated May 23, 2008; VA Optometry Consult dated May 28, 2008. Post-service VA treatment records reflect a diagnosis of blepharitis, see VA Optometry Consult dated February 8, 2012, and the Veteran indicated during the September 2021 Board hearing that he has conjunctivitis and was currently taking medication for it. See Hearing Transcript at pgs. 6-7. Accordingly, remand is necessary to provide the Veteran a VA examination, and to obtain a VA opinion addressing the etiology of the Veteran's conjunctivitis. 38 C.F.R. § 3.303; see McLendon, supra. Cervical Spine Once VA undertakes the effort to provide an examination or medical opinion when developing a service-connection claim, it must provide an adequate one or, at a minimum, notify the claimant why one will not or cannot be provided. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). As to secondary service connection, the July 2016 VA examiner opined in the negative: "There is documentations of thoracic spine condition assessed as segmental dysfunction of the thoracic region as noted on record 6/10/08; there are documentations of potential causes of neck and upper back complaints, including but not limited to claimant's back condition, and right shoulder complaints. I was not able to find documented evidence on review of the available records to indicate that claimant's neck and upper back complaints/condition was due to claimant's right shoulder condition. It is my opinion [that] claimant's current neck and upper back condition is less likely than not proximately due to and/or the result of the Veteran's service-connected status post right rotator cuff tear with chronic rotator cuff tendinitis." The VA examiner explained that service treatment records dated June 2008 include "documentations" of the Veteran's right shoulder as a potential cause of neck complaints during service. However, the examiner noted that he was unable to "find documented evidence" in the Veteran's "available records" to indicate that the Veteran's neck disorder was caused by his "right shoulder condition." See VA Medical Opinion dated July 22, 2016. The July 2016 opinion suffers from two critical deficiencies. First the VA examiner addressed causation, but not aggravation of a neck or cervical spine disorder. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (indicating an opinion regarding secondary service connection is inadequate if it does not address both causation and aggravation of the nonservice-connected condition). Second, an absolutely accurate determination of etiology is not a condition precedent to granting service connection. The posited correlation or etiology need only be an "as likely as not" possibility. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996) (indicating "absolute" etiology is not a condition precedent to granting service connection, nor is "definite" or "obvious" etiology). For these reasons, the July 2016 opinion is inadequate. See Barr, supra. The Board also observes that an October 2016 VA opinion addressing whether the Veteran's cervical spine disorder is secondary to his service-connected lumbar spine disorder is inadequate as it addresses causation but not aggravation. See Allen, supra. Additionally, as the Veteran asserts on appeal that his cervical spine disorder is secondary to his service-connected right shoulder and headaches disabilities, the opinion obtained on remand must address these theories of service connection. See Hearing Transcript at pgs. 4-5. Accordingly, remand is necessary to obtain adequate opinions addressing the etiology of the Veteran's cervical spine disorder. See Barr, supra. Upper Respiratory/Breathing Condition The June 2017 VA respiratory conditions examination reflects the VA examiner's determination that the Veteran has no respiratory disorders. However, VA treatment records reflect diagnoses of COPD and shortness of breath. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (the probative value of a medical opinion comes from its being factually accurate, fully articulated, and having a sound reasoning for the conclusion). Moreover, in the June 2017 opinion (set forth in the June 2017 VA Gulf War examination report), the examiner opined that the Veteran's shortness of breath is more likely than not due to his extensive smoking history and his continuing daily smoking of one and a half packs of cigarettes. The examiner did not address the etiology of the Veteran's COPD and the Board may not draw any conclusions as to the origin of the Veteran's COPD. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991) (Board may consider only independent medical evidence to support its findings and may not substitute its own unsubstantiated medical conclusions). Accordingly, remand is necessary to obtain an adequate opinion addressing the etiology of all the Veteran's currently diagnosed respiratory disorders. See Barr, supra. The Board emphasizes that a disability will not be considered service-connected on the basis that it resulted from injury or disease attributable to a veteran's use of tobacco products during service. This does not prohibit service connection for a disability that resulted from a disease or injury that is otherwise shown to have been incurred or aggravated during service, on some basis other than the veteran's use of tobacco products during service. See 38 U.S.C. § 1103; 38 C.F.R. § 3.300. Bilateral Hearing Loss A remand is necessary to provide the Veteran with a VA examination in connection with his claim for an increased disability rating for bilateral hearing loss. Notably, a VA compensation examination for hearing loss has not been conducted since May 2016 and such examination was for the purpose of determining the severity of the Veteran's service-connected bilateral hearing loss disability. In addition, the Veteran contends that his hearing loss is worse than when he was evaluated in May 2016. See Hearing Transcript at pg. 8. The passage of time between a VA examination and adjudication is not a valid basis, unto itself, to provide the Veteran with another VA examination. See Palczewski v. Nicholson, 21 Vet. App. 174, 181-83 (2007); Snuffer v. Gober, 10 Vet. App. 400, 403 (1997); VAOPGCPREC 11-95 (1995). However, the Veteran, during his September 2021 Board hearing, indicates that his symptoms are worse than when previously examined, and the Veteran is competent to report observable symptomatology such as hearing difficulties. See Layno, 6 Vet. App. 465, 470 (1994). Accordingly, a new VA hearing loss examination should be afforded to him. See Snuffer, supra. Right Shoulder A remand is necessary to provide the Veteran with a VA examination in connection with his claim for an increased disability rating for a right shoulder disability. Notably, a VA compensation examination for his right shoulder has not been conducted since July 2016 and such examination was for the purpose of determining the severity of the Veteran's service-connected status post right rotator cuff tear with chronic rotator cuff tendonitis. In addition, the Veteran contends that his right shoulder symptoms are worse than when he was evaluated in July 2016. See Hearing Transcript at pg. 12. The passage of time between a VA examination and adjudication is not a valid basis, unto itself, to provide the Veteran with another VA examination. See Palczewski, 21 Vet. App. at 181-83; Snuffer, 10 Vet. App. at 403; VAOPGCPREC 11-95 (1995). However, the Veteran, during his September 2021 Board hearing, indicates that his symptoms are worse than when previously examined, and the Veteran is competent to report observable symptomatology such as right shoulder difficulties. See Layno, 6 Vet. App. at 470. Accordingly, a new VA shoulder examination should be afforded to him. See Snuffer, supra. Right and Left Knees A remand is necessary to provide the Veteran with a VA examination in connection with his claim for increased disability ratings for his right and left knee disabilities. Notably, a VA compensation examination for his bilateral knee disabilities has not been conducted since July 2016 and such examination was for the purpose of determining the severity of the Veteran's service-connected patellofemoral degenerative joint disease (DJD) of the left knee and patellofemoral pain secondary to the patellofemoral DJD of the left knee. In addition, the Veteran contends that his right and left knee symptoms are worse than when he was evaluated in July 2016, including left knee instability and right knee pain he attributes to over-compensating for the left knee. See Hearing Transcript at pgs. 6, 12. The passage of time between a VA examination and adjudication is not a valid basis, unto itself, to provide the Veteran with another VA examination. See Palczewski, 21 Vet. App. at 181-83; Snuffer, 10 Vet. App. at 403; VAOPGCPREC 11-95 (1995). However, the Veteran, during his September 2021 Board hearing, indicates that his symptoms are worse than when previously examined, and the Veteran is competent to report observable symptomatology such as knee difficulties. See Layno, 6 Vet. App. at 470. Accordingly, a new VA knee examination should be afforded to him. See Snuffer, supra. The matters are REMANDED for the following action: 1. Ensure that all outstanding VA treatment records are associated with the claims file. 2. Then, schedule the Veteran for a VA examination as to the nature and etiology of any current eye disability. Access to the Veteran's electronic claims file, which shall include a copy of this Remand, must be made available to the examiner for review, and be reviewed, in connection with the examination. All clinical findings should be reported in detail and correlated to a specific diagnosis. After a complete review of the claims file, the examiner is asked to respond to the following: (a) Identify all currently diagnosed eye disorders that have been present at any point since the commencement of the claim period in March 2016, including conjunctivitis and any post-concussive visual problems. (b) Provide an opinion as to whether it is at least as likely as not that the eye disorder(s) onset during service, manifested within one year after service separation, or is otherwise etiologically related to service, to include the in-service diagnosis of gonorrhea and left eye viral conjunctivitis and/or in-service injury from a November 2007 IED blast. *Note that an in-service May 28, 2008 optometry consult notes polytrauma patient has visual symptoms and objective vision findings related to injury. The examiner must provide a complete rationale for all opinions provided. 3. Schedule the Veteran for a VA examination as to the etiology of a cervical spine disability(s) and any associated manifestations. Access to the Veteran's electronic claims file, which shall include a copy of this Remand, must be made available to the examiner for review, and be reviewed, in connection with the examination. All clinical findings should be reported in detail and correlated to a specific diagnosis. *The examiner's review of the body of this Remand is recommended to assist in avoiding errors that have rendered previous VA examinations and/or opinions inadequate. After a complete review of the claims file, the examiner is asked to respond to the following: (a) Identify all currently diagnosed cervical spine disabilities that have been present at any point since the commencement of the claim period in March 2016. (b) Provide an opinion as to whether it is at least as likely as not that the currently diagnosed cervical spine disability(s) was CAUSED or AGGRAVATED by the service-connected status post right rotator cuff tear with chronic rotator cuff tendinitis. (c) If the response to (b) above is negative, provide an opinion as to whether it is at least as likely as not that the currently diagnosed cervical spine disability(s) was CAUSED or AGGRAVATED by the service-connected: (i) degenerative changes at L-4 vertebra and disc space narrowing at L5-S1 vertebrae; (ii) status post right rotator cuff tear with chronic rotator cuff tendinitis; and/or (ii) migraine headaches associated with TBI. *Any increase/aggravation is sufficient; permanent aggravation is NOT required. *Note to examiner: To ensure that the correct legal standard is applied, which is essential for adjudication of this claim, each opinion MUST BE STATED IN TERMS OF whether the disorder was CAUSED or AGGRAVATED by the service-connected disorder. (d) If the answers to (b) and (c) above are negative, provide an opinion as to whether it is at least as likely as not that the currently diagnosed cervical spine disability(s) onset during service, manifested within one year after service separation, or is otherwise etiologically related to service. The examiner must provide a complete rationale for all opinions provided. 4. Schedule the Veteran for a VA examination as to the etiology of an upper respiratory/breathing disability(s) and any associated manifestations. Access to the Veteran's electronic claims file, which shall include a copy of this Remand, must be made available to the examiner for review, and be reviewed, in connection with the examination. All clinical findings should be reported in detail and correlated to a specific diagnosis. *The examiner's review of the body of this Remand is recommended to assist in avoiding errors that have rendered previous VA examinations and/or opinions inadequate. After a complete review of the claims file, the examiner is asked to respond to the following: (a) Identify all currently diagnosed upper respiratory/breathing disabilities (other than obstructive sleep apnea, for which the Veteran is already service connected) that have been present at any point since the commencement of the claim period in March 2016. (b) Provide an opinion as to whether it is at least as likely as not that the upper respiratory/breathing disability(s) onset during service, manifested within one year after service separation, or is otherwise etiologically related to service, to include service in Southwest Asia. The examiner must provide a complete rationale for all opinions provided. 5. Schedule the Veteran for a VA examination to determine the current severity of his bilateral hearing loss. Access to the Veteran's electronic claims file, which shall include a copy of this Remand, must be made available to the examiner for review, and be reviewed, in connection with the examination. The examiner must provide a complete rationale for all opinions provided. 6. Schedule the Veteran for a VA examination to determine the current severity of his status-post right rotator cuff tear with chronic rotator cuff tendinitis. Access to the Veteran's electronic claims file, which shall include a copy of this Remand, must be made available to the examiner for review, and be reviewed, in connection with the examination. All indicated studies, tests, and evaluations must be conducted, and all findings reported in detail and correlated to a specific diagnosis. The examiner is requested to review the claims file, then respond to the following regarding the Veteran's service-connected status-post right rotator cuff tear with chronic rotator cuff tendinitis. (a) Assess functional loss, flare-ups and increased functional loss on repetitive use in terms of the degree of additional range of motion (ROM) loss, considering all procurable and ascertainable data. Indicate any and all associated orthopedic AND neurologic manifestations. *If the examiner determines that flare-ups cause variable reductions in ROM of the affected joints, he or she must use information obtained from the Veteran to estimate variations in reduced ROM in terms of degrees. *If the examiner is unable to provide such an opinion without resort to speculation, the examiner must provide a rationale for this conclusion, with specific consideration of the instructions in the VA Clinician's Guide to estimate, "per [the] veteran," what extent, if any, flare-ups affect functional impairment. The examiner must include a discussion of any specific facts that cannot be determined if unable to opine without speculation. See Sharp v. Shulkin, 29 Vet. App. 26, 36 (2017). *In doing so, also obtain information from the Veteran (and the treatment records) as to the frequency, duration, characteristics, severity, or functional loss with any repetitive use and during any flare-ups. *Full range of motion (ROM) testing must be performed where possible. The joints involved should be tested, including for pain, in (1) active motion, (2) passive motion, (3) in weight-bearing, and (4) in non weight-bearing. See Correia v. McDonald, 28 Vet. App. 158 (2016). If the examiner is unable to conduct 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. The examiner must provide a complete rationale for all opinions provided. 7. Schedule the Veteran for a VA examination to determine the current severity of his right and left knee disabilities. Access to the Veteran's electronic claims file, which shall include a copy of this Remand, must be made available to the examiner for review, and be reviewed, in connection with the examination. All indicated studies, tests, and evaluations must be conducted, and all findings reported in detail and correlated to a specific diagnosis. The examiner is requested to review the claims file, then respond to the following regarding the Veteran's service-connected left and right knee disabilities. (a) Assess functional loss, flare-ups and increased functional loss on repetitive use in terms of the degree of additional range of motion (ROM) loss, considering all procurable and ascertainable data. Indicate any and all associated orthopedic AND neurologic manifestations, to include left knee instability as endorsed by the Veteran during his September 2021 Board hearing testimony. *If the examiner determines that flare-ups cause variable reductions in ROM of the affected joints, he or she must use information obtained from the Veteran to estimate variations in reduced ROM in terms of degrees. *If the examiner is unable to provide such an opinion without resort to speculation, the examiner must provide a rationale for this conclusion, with specific consideration of the instructions in the VA Clinician's Guide to estimate, "per [the] veteran," what extent, if any, flare-ups affect functional impairment. The examiner must include a discussion of any specific facts that cannot be determined if unable to opine without speculation. See Sharp v. Shulkin, 29 Vet. App. 26, 36 (2017). *In doing so, also obtain information from the Veteran (and the treatment records) as to the frequency, duration, characteristics, severity, or functional loss with any repetitive use and during any flare-ups. *Full range of motion (ROM) testing must be performed where possible. The joints involved should be tested, including for pain, in (1) active motion, (2) passive motion, (3) in weight-bearing, and (4) in non weight-bearing. See Correia v. McDonald, 28 Vet. App. 158 (2016). If the examiner is unable to conduct 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. The examiner must provide a complete rationale for all opinions provided. (Continued on the next page) 8. Thereafter, ensure that the examiner has substantially responded to the questions posed by the Board, and if not, take corrective action. 9. Then, readjudicate the remanded claims. S. B. MAYS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. Farrell, 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.