Citation Nr: 22017510 Decision Date: 03/25/22 Archive Date: 03/25/22 DOCKET NO. 16-26 376 DATE: March 25, 2022 REMANDED Entitlement to a compensable rating for right knee strain is remanded. Entitlement to a compensable rating for left knee strain is remanded. Entitlement to a compensable rating for laryngopharyngeal reflux disease is remanded. Entitlement to a rating greater than 10 percent for lumbar strain is remanded. Entitlement to a compensable rating for cervical strain is remanded. Entitlement to a rating greater than 50 percent for sleep apnea is remanded. Entitlement to a compensable rating for scar, status post (s/p) anterior palatoplasty and uvuloplasty, is remanded. Entitlement to service connection for bilateral hearing loss is remanded. Entitlement to service connection for tinnitus is remanded. REASONS FOR REMAND The Veteran had active duty service from July 1992 to September 2014. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2016 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In his VA Form 9 (substantive appeal), the Veteran requested to have a hearing before a Veterans Law Judge which was scheduled for June 4, 2019; however, the Veteran requested that this hearing be rescheduled. Although the Veteran's hearing was rescheduled to July 2021, the Veteran withdrew his hearing request in June 2021 written correspondence. Therefore, the Veteran's hearing request is deemed withdrawn. 38 C.F.R. § 20.704 (d) (2020). The Board has reviewed the evidence of record and finds that further development is necessary before the Board can properly adjudicate the claims. Specifically, the Board finds that treatment records appear to be outstanding and new examinations should be obtained. Therefore, a remand is warranted. With regard to outstanding treatment records, the Board notes that in May 2016 written correspondence, VA acknowledged that in the Veteran's Fully Developed Claim, the Veteran reported receiving treatment from Ehrling Bergquist Hospital. However, it does not appear that these records were obtained or that VA requested the specified records. Because VA has constructive possession of federal records, it has a duty to make reasonable efforts to assist a claimant in securing evidence which is necessary to substantiate a claim for VA benefits. 38 U.S.C. § 5103A § 38 C.F.R. § 3.159 (c). Additionally, a November 2016 private physical therapy evaluation shows the Veteran was referred to physical therapy for his lumbar spine disability; however, these records are not of evidence and no efforts have been made to retrieve them. Therefore, VA must make attempts to retrieve these records while on remand. The Board also notes that the Veteran's last examinations occurred in March 2016, approximately six years ago. Although VA examinations do not necessarily expire or go stale due to the mere passage of time, adequate examinations must be sufficiently detailed for the Board's evaluation of the claimed disabilities to be a fully informed decision. Barr v. Nicholson, 21 Vet. App. 303 (2007). Moreover, the Veteran's orthopedic examinations do not adhere to the requirements of Correia v. McDonald or Sharp v. Shulkin. See Correia v. McDonald, 28 Vet. App. 158 (2016), (requiring joint testing for pain on both active and passive motion, in weightbearing and non-weightbearing and, if possible, with range of motion measurements of the opposite undamaged joint); see also Sharp v. Shulkin, 29 Vet. App. 26 (2017) (holding that VA examiners should estimate the additional loss of range of motion (ROM) during a flare-up based on all procurable information from the record, as well as the Veteran's own statements). Accordingly, the matters are REMANDED for the following action: 1. Obtain any outstanding treatment records, to include the Veteran's federal records from Ehrling Bergquist Hospital since the Veteran's discharge from October 1, 2014 to present. Document all requests for information as well as all responses in the claims file. 2. Obtain any outstanding private treatment records, to include the Veteran's physical therapy records for his lumbar spine disability. The Veteran's assistance should be requested as needed. All obtained records should be associated with the evidentiary record. If the AOJ cannot obtain records identified by the Veteran, a notation to that effect should be inserted in the file. The Veteran is to be notified of unsuccessful efforts in this regard, in order to allow him the opportunity to obtain and submit those records for VA review. 3. Schedule the Veteran for VA examinations with a qualified clinician to determine the current severity of the Veteran's cervical spine, lumbar spine, and bilateral knee disabilities. The claims folder, including a copy of this remand and all lay statements of record should be made available to the examiner. (a) The examiner is to provide a detailed review of the Veteran's pertinent medical history, current complaints, and the nature and extent of his service-connected cervical spine, lumbar spine, and bilateral knee strain. (b) With respect to range of motion testing, this must be conducted on active and passive motion and in weight-bearing and non-weightbearing conditions (pursuant to Correia v. McDonald, 28 Vet. App. 158 (2016)). (c). Additionally, the examiner must document all functional loss. In assessing functional loss, flare-ups must be considered, and the examiner must consider all procurable and ascertainable data and describe the extent of any pain, incoordination, weakened movement, and excess fatigability on use, and, to the extent possible, report functional impairment due to such factors in terms of additional degrees of limitation of motion (pursuant to Sharp v. Shulkin, 29 Vet. App. 26 (2017)). The examiner must provide a rationale for all opinions provided. If an opinion cannot be made without resort to speculation, the examiner should provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be made. 4. Schedule the Veteran for a VA examination with a qualified clinician to determine the current severity of the Veteran's laryngopharyngeal reflux disease, sleep apnea, and scar, status post (s/p) anterior palatoplasty and uvuloplasty. All pertinent symptoms and findings must be reported in detail. 5. Schedule the Veteran for a VA examination to determine the nature and etiology of the Veteran's bilateral hearing loss and tinnitus. The claims file must be made available for review. After reviewing the claims file and completing a physical examination of the Veteran, the examiner must: (a) Provide an opinion as to whether the Veteran has a right or left hearing loss disability for VA compensation purposes that is at least as likely as not (50 percent probability or greater) related to service, to include the Veteran's reported noise exposure. (b) Provide an opinion as to whether the Veteran has a diagnosis of tinnitus that is at least as likely as not (50 percent probability or greater) related to service, to include the Veteran's reported noise exposure. The examiner should provide a complete rationale for any opinions expressed. If the examiner is unable to provide an opinion without resorting to mere speculation, he or she should explain why this is so. GAYLE STROMMEN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Laffitte, 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.