Citation Nr: 18139650
Decision Date: 09/28/18	Archive Date: 09/28/18

DOCKET NO. 12-17 857
DATE:	September 28, 2018
The claim for a higher rating for left knee disability is remanded.
The claim for a higher rating for bilateral hearing loss is remanded.
The Veteran served on active duty in the U.S. Army from May 1970 to November 1971, to include service in Vietnam.  His decorations include the Vietnam Service Medal, the Air Medal, and the Combat Infantryman Badge.
This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a December 2011 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas.
In June 2015, the Veteran testified at a Board hearing before a Veterans Law Judge (VLJ).  A transcript of that hearing has been associated with the record.
This case was previously before the Board in September 2015.  At that time, the issues developed for appeal were entitlement to service connection for right ear hearing loss; entitlement to an initial compensable rating for left ear hearing loss; and entitlement to an increased rating for left knee disability.  The Board granted service connection for right ear hearing loss; denied a compensable rating for hearing loss prior to July 2015; granted a 10 percent rating for hearing loss thereafter; granted a separate 20 percent rating for the left knee under Diagnostic Code 5258; and denied higher ratings for the left knee under Diagnostic Codes 5010-5261 and 5257.  At the same time, the Board remanded issues pertaining to the Veteran’s entitlement to still-higher ratings for hearing loss and the left knee, to include development pertaining to whether the Veteran had undergone a total knee replacement.
In August 2018, the Board wrote the Veteran and his representative to inform them that the Veterans Law Judge who conducted the hearing in June 2015 was no longer employed by the Board.  The Veteran was offered the opportunity to testify at another Board hearing, but did not respond.  
The claims for higher ratings for left knee disability and bilateral hearing loss are remanded.
When this case was remanded in September 2015, the Board requested, among other things, that the Veteran be scheduled for an updated VA examination to assess the current severity of his left knee disability.  The Board also asked that a search be conducted for a compact disc (CD) that was submitted by the Veteran in or around 2012, containing medical records.  The record does not reflect that this development has been completed.  Accordingly, a remand is required.  See Stegall v. West, 11 Vet. App. 268 (1998).
These matters are REMANDED for the following action:
1.  Conduct a search for the missing CD the Veteran submitted in or around 2012.  Efforts to locate the CD must include contacting all appropriate sources to determine whether his paper VA claims file still exists, and if so, whether the CD is located in the paper file.
Efforts to locate the CD should be fully documented, and should be discontinued only if it is concluded that the CD no longer exists or that further efforts to obtain it would be futile.  38 C.F.R. § 3.159(c)(2).  If the CD is procured, its contents should be uploaded to the Veteran’s electronic claims file, if possible.  If the CD cannot be located, or the contents cannot otherwise be made available for review, the record should be annotated to reflect that fact and the Veteran and his representative should be notified.
2.  After the foregoing development has been completed to the extent possible, schedule the Veteran for an examination of his left knee.
The examination must include testing for pain on both active and passive motion, in weight bearing and non-weight bearing, and, if possible, with the range of the opposite undamaged joint.
The examiner must attempt to elicit information regarding functional loss due to flare-ups and repeated use over time.  If the Veteran suffers from such loss, the examiner should express the loss in terms of degrees of additional loss in range of motion (i.e., in addition to that observed clinically), if feasible, taking into account all of the evidence, including the Veteran’s competent statements with respect to the frequency, duration, characteristics, and severity of his limitations.
Governing law requires that if the Veteran is not exhibiting functional loss due to flare-ups and/or repeated use over time, examiners will nevertheless offer opinions with respect to functional loss based on estimates derived from information procured from relevant sources, including lay statements of the Veteran.  An examiner must do all that reasonably should be done to become informed before concluding that an opinion cannot be provided without resorting to speculation.
That said, if it is the examiner’s conclusion that he or she cannot feasibly provide the requested opinion(s), even considering all of the available evidence, it must be so stated, and the examiner must provide the reasons why offering such opinion(s) is not feasible.
3.  After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the Veteran’s claims should be readjudicated based on the entirety of the evidence.  If any benefit sought remains denied, the Veteran and his representative should be issued a supplemental statement of the case.  An appropriate period of time should be allowed for response.
Acting Veterans Law Judge
Board of Veterans’ Appeals

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