Citation Nr: 22040503 Decision Date: 07/15/22 Archive Date: 07/15/22 DOCKET NO. 16-57 554 DATE: July 15, 2022 REMANDED Entitlement to an initial rating in excess of 10 percent for lumbar spine strain is remanded. The petition to reopen a claim for service connection for decrease in vision is remanded. The petition to reopen a claim for service connection for hearing loss is remanded. The petition to reopen a claim for service connection for tinnitus is remanded. The petition to reopen a claim for service connection for Hodgkins Lymphoma (claimed as lymph node cancer) is remanded. The petition to reopen a claim for service connection for left knee strain is remanded. The petition to reopen a claim for service connection for right knee medial meniscal tear is remanded. The petition to reopen a claim for service connection for left shoulder pain is remanded. The petition to reopen a claim for service connection for right shoulder pain is remanded. The petition to reopen a claim for service connection for left wrist pain is remanded. The petition to reopen a claim for service connection for right wrist pain is remanded. The petition to reopen a claim for service connection for tendinitis/sprain of the left hand is remanded. The petition to reopen a claim for service connection for tendinitis/sprain of the right hand is remanded. REASONS FOR REMAND The Veteran served in the United State Army from April 1998 to April 2001 and from January 2003 to April 2004. This matter is before the Board of Veterans' Appeals (Board) on appeal of November 2012 and June 2017 rating decisions of a Regional Office (RO) of the Department of Veterans Affairs (VA). The November 2012 decision granted service connection for a lumbar spine strain, and the Veteran appealed the assigned initial rating. The June 2017 rating decision denied the petitions to reopen the Veteran's claims of service connection for vision problems, hearing loss, tinnitus, Hodgkins Lymphoma, left and right knee disorders, left and right shoulder disorders, left and right wrist disorders, and left and right hand disorders. The Veteran testified under the assigned Veteran's Law Judge at a Board hearing in August 2021. The transcript is of record. 1. Entitlement to an initial rating in excess of 10 percent for lumbar spine strain is remanded. The Veteran was last afforded a VA examination to determine the nature and severity of his service connected lumbar spine strain in October 2012. During his August 2021 Board hearing, the Veteran testified that his service connected lumbar spine strain had worsened since his last examination in that his pain had increased and his range of motion had decreased. In light of the Veteran's contentions regarding a possible worsening, a new VA examination should be conducted to determine the current nature and severity of the Veteran's lumbar spine strain. See Caffrey v. Brown, 6 Vet. App. 377, 381 (1994); Snuffer v. Gober, 10 Vet. App. 400, 403 (1997); VAOPGCPREC 11-95 (1995). 2. The petition to reopen a claim for service connection for decrease in vision is remanded. 3. The petition to reopen a claim for service connection for hearing loss is remanded. 4. The petition to reopen a claim for service connection for tinnitus is remanded. 5. The petition to reopen a claim for service connection for Hodgkins Lymphoma (claimed as lymph node cancer) is remanded. 6. The petition to reopen a claim for service connection for left knee strain is remanded. 7. The petition to reopen a claim for service connection for right knee medial meniscal tear is remanded. 8. The petition to reopen a claim for service connection for left shoulder pain is remanded. 9. The petition to reopen a claim for service connection for right shoulder pain is remanded. 10. The petition to reopen a claim for service connection for left wrist pain is remanded. 11. The petition to reopen a claim for service connection for right wrist pain is remanded. 12. The petition to reopen a claim for service connection for tendinitis/sprain of the left hand is remanded. 13. The petition to reopen a claim for service connection for tendinitis/sprain of the right hand is remanded. The appellate scheme set forth in 38 U.S.C. § 7104(a) contemplates that pertinent evidence will first be reviewed at the agency of original jurisdiction (AOJ) so as not to deprive the claimant of an opportunity to prevail with a claim at that level. See generally Disabled American Veterans v. Secretary of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003). When the AOJ receives evidence relevant to a claim properly before it that is not duplicative of evidence already discussed in the statement of the case or a supplemental statement of the case, it must prepare a supplemental statement of the case reviewing that evidence. 38 C.F.R. § 19.31(b)(1). The record reflects that VA-generated evidence, to include multiple examinations and ongoing treatment records, has been added to the claims file since the claims listed above were last adjudicated in a February 2020 statement of the case. Since that time, new supplemental statement of the case were not issued with consideration of the new VA examination reports and VA treatment records. While 38 U.S.C. § 7105(e) provides an automatic waiver of initial AOJ review if a veteran submits evidence to the AOJ or the Board with, or after submission of, a Substantive Appeal, this provision is only applicable to cases where the Substantive Appeal was filed on or after February 2, 2013 (applicable here), but does not apply to VA-generated evidence, such as VA examination reports or VA treatment records. 38 U.S.C. § 7105(e). In April 2022, the Board solicited a waiver of AOJ consideration of such newly received evidence from the Veteran. In this regard, the letter informed them that, if he did not reply within 45 days, the Board would assume that he did not wish to waive AOJ consideration of the additional evidence and would remand the case for AOJ review. In a June 2022 submission, the Veteran indicated that he wished for the Board to remand his case back to the AOJ for review of the additional evidence that was submitted in his appeals. Therefore, a remand is necessary in order to allow the AOJ to consider the newly received evidence in the first instance. 38 C.F.R. § 19.31(b)(1). The matters are REMANDED for the following action: 1. The Veteran should be given the opportunity to identify any outstanding private or VA treatment records relevant to the claims on appeal. After obtaining any necessary authorization from the Veteran, all outstanding records should be obtained, to include updated VA treatment records and physical therapy records. For private treatment records, make at least two (2) attempts to obtain records from any identified sources. If any such records are unavailable, inform the Veteran and his representative and afford him an opportunity to submit any copies in his possession. For federal records, all reasonable attempts should be made to obtain such records. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 2. Following the receipt of outstanding records, schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected lumbar spine strain. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran's disability under the rating criteria. In so doing, the examiner must test the Veteran's active motion, passive motion, and pain with weight-bearing and without weight-bearing. If it is not possible to provide a specific measurement 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). In so doing, the examiner must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. If it is not possible to provide a specific measurement based on direct observation, the examiner should provide an estimate, if at all possible, of the additional impairment due to flare-ups based on the other evidence of record and the Veteran's statements. If it is not possible to provide a specific measurement 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). 3. After the above development, and any additionally indicated development, has been completed, readjudicate the issues on appeal to specifically include all evidence associated with the record since the issuance of the February 2020 statement of the case. If any benefit sought is not granted to the Veteran's satisfaction, send the Veteran a Supplemental Statement of the Case and provide an opportunity to respond. If necessary, return the case to the Board for further appellate review. KRISTY L. ZADORA Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. M. Donahue Boushehri, 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.