Citation Nr: 22018707 Decision Date: 03/30/22 Archive Date: 03/30/22 DOCKET NO. 18-06 791 DATE: March 30, 2022 ORDER New and material evidence having been presented, reopening of the claim for entitlement to service connection for a left knee disability is granted. New and material evidence having been presented, reopening of the claim for entitlement to service connection for a right ear hearing loss disability is granted. New and material evidence having been presented, reopening of the claim for entitlement to service connection for rectal bleeding/colon polyps is granted. REMANDED Entitlement to service connection for a left elbow disability is remanded. Entitlement to service connection for a right elbow disability is remanded. Entitlement to service connection for a left hip disability is remanded. Entitlement to service connection for a right hip disability is remanded. Entitlement to service connection for a left ankle disability is remanded. Entitlement to service connection for a right ankle disability is remanded. Entitlement to service connection for a left knee disability is remanded. Entitlement to service connection for obstructive sleep apnea is remanded. Entitlement to service connection for a right ear hearing loss disability is remanded. Entitlement to service connection for rectal bleeding/colon polyps is remanded. Entitlement to a disability rating in excess of 20 percent for intervertebral disc syndrome with degenerative arthritis is remanded. Entitlement to a disability rating in excess of 10 percent for status-post right knee arthroscopic medial meniscectomy is remanded. Entitlement to a compensable disability rating for chronic left shoulder strain is remanded. Entitlement to a compensable disability rating for chronic right shoulder strain is remanded. Entitlement to a compensable disability rating for left ear hearing loss is remanded. INTRODUCTION The Veteran served on active duty from March 1977 to February 1981, September to October 1990, and March 2003 to March 2005. In September 2021, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. The Veteran previously submitted claims for entitlement to service connection for a left knee disability, rectal bleeding, and a right ear hearing loss disability which were denied in an October 2011 rating decision. The Veteran's claims were denied on the basis that no current disability was shown at the time of his July 2011 VA examinations. Those decisions became final because the Veteran did not timely appeal those claims within the appeal period. In connection with the Veteran's claim to reopen, he recently submitted private treatment records indicating he has been diagnosed with both left knee arthritis, as well as rectal polyps and hemorrhoids. Additionally, during his recent Board hearing the Veteran testified his right ear hearing has worsened. Thus, the Board finds that sufficient new and material evidence has been received to reopen his previously denied claims. 38 C.F.R. § 3.156 (a); Shade v. Shinseki, 24 Vet. App. 110, 117-18 (2010); Justus v. Principi, 3 Vet. App. 510, 513 (1992). REASONS FOR REMAND The Board finds additional development is required before the Veteran's remaining claims are decided. Service Connection Claims In September 2017 the Veteran initiated claims for entitlement to service connection for a left knee disability, bilateral elbow disabilities, bilateral ankle disabilities, bilateral hip disabilities, rectal bleeding/colon polyps, right ear hearing loss, and sleep apnea. He has asserted his left knee, bilateral ankle, and bilateral hip disabilities were caused by his service-connected right knee and lumbar spine disability. He has also asserted his bilateral elbow disabilities were caused by his service-connected bilateral shoulder disabilities. The Veteran further contends his rectal bleeding and sleep apnea should be deemed signs and symptoms of a Persian Gulf illness. Additionally, the Veteran recently provided a statement from his private physician relating his sleep apnea to his depressive disorder, unfortunately, the clinician failed to explain how and why he came to that conclusion. Rather, he merely provided citations to medical journal articles which indicate there is an increased incidence of comorbidity between psychiatric disorders and sleep apnea, but this does not explain the clinician's conclusion that the Veteran's psychiatric disorder actually caused his sleep apnea. The Board notes that VA must provide a medical examination or obtain a medical opinion when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, (2) evidence establishing that an event, injury, or disease occurred in service, or establishing that certain diseases manifested during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran's service or with another service-connected disability, but (4) there is insufficient competent medical evidence on file for the Secretary to make a decision on the claim. McLendon v. Nicholson, 20 Vet. App. 79 (2006); see also 38 U.S.C. § 5103A (d)(2), 38 C.F.R. § 3.159 (c)(4)(i). The third prong, which requires that the evidence of record "indicate" that the claimed disability or symptoms "may be" associated with the established event, disease or injury is a low threshold. McLendon, 20 Vet. App. at 83. The Board next observes the Veteran was scheduled for VA examinations to assess his claimed disabilities in October 2017 and January 2018; however, the evidence indicates the Veteran failed to respond to requests to schedule his examinations. During his recent September 2021 Board hearing, the Veteran reported the telephone number on file was incorrect. Based on the foregoing, the Board finds good cause has been shown for the Veteran's failure to respond to the prior requests to schedule examinations. As such, new VA examinations and medical opinions are necessary. Conversely, the Board also notes VA's duty to assist a veteran in developing the facts and evidence pertinent to his or her claim is not a one-way street. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). Therefore, the Veteran's cooperation in scheduling the pending VA examinations is expected. Increased Rating Claims Finally, the Board notes the Veteran was also scheduled for examinations in conjunction with the above-noted increased rating claims for his lumbar spine, bilateral shoulders, right knee, and left ear hearing loss in October 2017 and January 2018. As noted, the Veteran has asserted he did not receive proper notice of those examinations as the telephone number of record was incorrect. Further, during his recent Board hearing, the Veteran reported his disabilities had worsened. The Veteran most recently underwent VA examinations to assess his disabilities in July 2011. As there is evidence of a worsening of the disabilities the claims must be remanded for examinations to determine the current severity of the disabilities. Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994). Accordingly, these matters are REMANDED for the following actions: 1. Afford the Veteran a VA examination by an examiner with sufficient expertise to address the etiology of the Veteran's claimed left knee, bilateral elbow, bilateral ankle, bilateral hip, rectal bleeding/colon polyps, right ear hearing loss, and sleep apnea disabilities. All pertinent evidence of record must be made available to and reviewed by the examiner(s). Any indicated studies should be performed. Following a review of the relevant records and lay statements, the examiner should state an opinion with respect to whether any diagnosed left ankle, right ankle, left knee, left hip, or right hip disability at least as likely as not (a 50 percent probability or greater): a) originated during his periods of active service or is otherwise etiologically related to his active service; b) was caused by his service-connected right knee or lumbar spine disability; or c) was worsened to any degree by his service-connected right knee or lumbar spine disability. With regard to the Veteran's claimed left and right elbow disabilities, the examiner is asked to state an opinion with respect to whether any diagnosed disability at least as likely as not (a 50 percent probability or greater): a) originated during his periods of active service or is otherwise etiologically related to his active service; b) was caused by his service-connected left or right shoulder disability; or c) was worsened to any degree by his service-connected left or right shoulder disability. Regarding the Veteran's claimed rectal bleeding/colon polyps and sleep apnea disabilities, the examiner is asked to state whether the Veteran's disorder at least as likely as not (a 50 percent probability or greater): a) originated during his periods of active service or is otherwise etiologically related to his active service; b) is a manifestation of an undiagnosed illness that, by history, physical examination, and laboratory tests, cannot be attributed to any known clinical diagnosis; or c) is a chronic multi-symptom disability, and if so, the examiner should state whether the disability: i. results from a clear and distinct etiology, ii. partially known etiology, or iii. an unknown etiology. Finally, with regard to the Veteran's right ear hearing loss claim, the appropriate examiner is asked to state whether the Veteran's hearing loss disability, if present in accordance with 38 C.F.R. § 3.385, at least as likely as not (a 50 percent probability or greater) originated during his periods of active service or is otherwise etiologically related to his active service. The examiner(s) must specifically consider the Veteran's competent lay reports as they relate to the claimed disabilities. If an examiner is unable to provide any required opinion, he or she should explain why. If an examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation as to why this is so. 2. Also, afford the Veteran a VA examination by an examiner with sufficient expertise to fully assess the severity of the Veteran's service-connected lumbar spine, bilateral shoulder, right knee, and left ear hearing loss disabilities. All pertinent evidence of record should be made available to and reviewed by the examiner. Any indicated studies should be performed. Ensure the examiner provides all information required for rating purposes. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary, he or she should be directed to clearly explain why that is so. T. REYNOLDS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board G. Fraser, 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.