Citation Nr: 18140236 Decision Date: 10/02/18 Archive Date: 10/02/18 DOCKET NO. 16-27 645 DATE: October 2, 2018 REMANDED Entitlement to service connection for bilateral shoulder disability is remanded. Entitlement to service connection for low back disability is remanded. Entitlement to service connection for right knee condition is remanded. REASONS FOR REMAND The Veteran served on active duty from January 2001 to December 2010 with additional service in the Air Force reserve. A May 2013 rating decision denied entitlement to service connection for right knee and thyroid conditions; bilateral shoulder, permanent neck, ear, and lower back pain; atopic dermatitis; allergies; and chalazion. Although the Veteran filed a notice of disagreement (NOD) disagreeing with the denials, her VA Form 9 stated that she only wished to appeal the issue of entitlement to service connection for right knee condition and bilateral shoulder and back pain. Therefore, because the Veteran did not file a VA Form 9 pertaining to the issues of entitlement to service connection for thyroid conditions; permanent neck and ear pain; atopic dermatitis; allergies; and chalazion, the issues have not been properly appealed and are not before the Board. In an April 2013 formal finding, the Veteran was informed that her service treatment records (STRs) were unavailable for review. The Board notes that the duty to assist includes assisting the claimant in the procurement of relevant records. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c). Additionally, when STRs are unavailable at no fault of the Veteran, VA has a heightened duty to assist the claimant in developing the claim, as well as to consider the applicability of the benefit of the doubt rule and to explain its decision. Cromer v. Nicholson, 19 Vet. App. 215 (2005), citing Russo v. Brown, 9 Vet. App. 46 (1996). See also Cuevas v. Principi, 3 Vet. App. 542 (1992); O’Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). Entitlement to service connection for bilateral shoulder and lower back pain and right knee condition are remanded. The Veteran contends that her claimed bilateral shoulder, lower back and right knee disabilities are related to her military service. In March 2006, the Veteran was seen for right knee pain. She stated that she had completed the Chicago Marathon and tried to resume running a couple of days later. However, the knee pain persisted and did not improve. On December 10, 2010 during her final disposition prior to separation, the examiner noted bilateral shoulder pain. The shoulders became sore with overhead motions, and the Veteran had some mild ROM limitations when reaching behind. She also experienced pain with some external rotation which she was told could be a possible rotator cuff injury. The examiner noted right knee swelling that caused some twinge of pain along medial side of the right knee when the Veteran was weight bearing. The examiner noted that the Veteran had almost annual episodes of severe low back pain with muscle spasms. The Board notes that the Veteran filed an application for bilateral shoulder and lower back pain. In Saunders v. Wilkie, No. 2017-1466, 2018 U.S. App. Lexis 8467 (Fed. Cir. Apr. 3, 2018), the Federal Circuit found that the term “disability” as used in 38 U.S.C. 1110 “refers to the functional impairment of earning capacity, not the underlying cause of said disability,” and held that “pain alone can serve as a functional impairment and therefore qualify as a disability.” The case reversed years of precedent that had held that “pain alone is not a disability for the purposes of VA disability compensation.” Sanchez-Benitez v. West, 13 Vet. App. 282 (1999). In other words, where pain alone results in functional impairment, even if there is no identified underlying diagnosis, it can constitute a disability. Pursuant to Saunders, on remand, the Board must determine whether the Veteran has pain that amounts to functional impairment under the correct legal test for disability. In her September 2012 application for benefits, the Veteran stated that a Dr. B. treated her for a right knee condition and bilateral shoulder pain. The Veteran also stated that Dr. S. treated her for low back pain. The Board notes that the Veteran’s medical records are not of record. On remand, the Veteran’s medical records should be obtained. The matters are REMANDED for the following action: 1. Obtain and associate all outstanding VA treatment records with the claims file. 2. Contact the Veteran and request that she identify all private providers who have treated her for her bilateral shoulder and lower back pain and right knee condition. After obtaining authorization, obtain all outstanding, non-duplicative records. If the records are unavailable, document the claims file and notify the Veteran in accordance with 38 C.F.R. § 3.159(e). 3. Schedule VA examinations to determine the nature and etiology of the Veteran’s bilateral shoulder and lower back pain and right knee condition. The complete record, to include a copy of this remand and the claims folder must be made available to and reviewed by the examiner in conjunction with the examination. The examination report must include a notation that this record review took place. Based on a review of the entire record, the examiner should respond to the following: a. Identify any shoulder, lower back, and/or right knee conditions that are present since the Veteran filed a claim in September 2012. b. For any diagnosed conditions, the examiner must opine: Whether it is at least as likely as not (50 percent probability or greater) that the disability had its onset in service or is otherwise related to any in-service disease, event, or injury. The supporting rationale for all opinions expressed must be provided. The examiner must consider the Veteran’s lay statements on the history of her shoulder, lower back, and right knee conditions. BISWAJIT CHATTERJEE Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD T. Henry, Associate Counsel