Citation Nr: 18143618 Decision Date: 10/19/18 Archive Date: 10/19/18 DOCKET NO. 14-37 485 DATE: October 19, 2018 REMANDED Entitlement to service connection for the left knee condition is remanded. Entitlement to service connection for the right knee condition is remanded. Entitlement to service connection for headaches is remanded. Entitlement to service connection for intervertebral disc syndrome is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from January 1979 to September 1982. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a February 2013 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran presented sworn testimony at a hearing before the undersigned Veterans Law Judge (VLJ) in March 2018. The Veteran previously submitted a claim of entitlement to service connection for his left and right knees which was denied in a May 1993 rating decision on the basis that the Veteran’s disability was not incurred in service. In July 1993, the Veteran withdrew his appeal and the May 1993 rating decision became final. Since that time, the Veteran testified that his knee condition had its onset in service, but that his complaints of knee pain were not noted. Thus, the Board finds that new and material evidence has been received sufficient 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). Bilateral knees, headaches, and intervertebral disc syndrome (cervical) VA’s duty to assist includes a duty to provide a medical examination or obtain a medical opinion where it is deemed necessary to make a decision on the claim. 38 U.S.C. § 5103A (d); 38 C.F.R. § 3.159 (c)(4); see also McLendon v. Nicholson, 20 Vet. App. 79 (2006). Once VA undertakes the effort to provide an examination for a service connection claim, even if not statutorily obligated to do so, it must provide an adequate one or, at a minimum, notify the claimant why one will not or cannot be provided. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Further, where the theory of entitlement includes a claim for secondary service connection, the examiner must provide an opinion as to whether the non-service connected condition was proximately due to, the result of, or aggravated by the service connected condition. El-Amin v. Shinseki, 26 Vet. App. 136 (2013). An April 2015 VA examiner found that the Veteran had degenerative arthritis and left knee patellar or quadriceps tendon rupture and concluded that the Veteran did not have knee problems in service and that his knee condition is not due to or the result of the Veteran’s service connected pes planus condition because there is no medical evidence of a direct causal relationship. This examiner also concludes that the Veteran’s age-related osteoarthritis and patellar tendon disease occurred after service. This opinion is inadequate because it fails to address: (1) whether the Veteran’s knee condition was aggravated by his pes planus condition, and (2) relevant facts and lay statements as to in-service onset. With respect to headaches, the April 2015 VA examiner concluded that the Veteran does not have a current disability, injury, or headache related symptoms. The examiner reasoned that although the Veteran had a headache complaint noted in service, there is no evidence of a chronic headache condition diagnosed or treated in service. This conclusion is inadequate because the examiner does not address the Veteran’s various treatment records documenting complaints of headaches with numbness in feet, high blood pressure, blurry vision, and dizziness. This opinion does not provide adequate factual basis to ascertain why the Veteran’s headaches are not considered a condition or disability and why they are not related to or aggravated by his service connected disabilities or pain associated with those disabilities. It is also unclear whether the Veteran has functional impairment related to his headaches. In this regard, the United States Court of Appeals for the Federal Circuit has recently held that pain alone may constitute a disability, even without an identifiable underlying pathology. Saunders v. Wilkie, 886 F.3d 1356, 1368 (Fed. Cir. 2018). However, “to establish a disability, the Veteran’s pain must amount to a functional impairment.” Id. at 1367. “Functional impairment,” the Federal Circuit noted, is defined as the inability of the body or a constituent part of it “‘to function under the ordinary conditions of daily life including employment.’“ Id. at 1363 (quoting 38 C.F.R. § 4.10). In other words, pain alone can qualify as a disability where it diminishes the body’s ability to function, even where it is not diagnosed as connected to a current underlying condition. Id. The January 2013 VA examiner opined that the Veteran’s cervical degenerative joint disease and invertebral disc syndrome associated with peripheral nerve injury to the right upper extremity is caused by age and arthritis. The examiner reasoned that pes planus does not cause arthritic changes or aggravation to any cervical conditions. This rationale fails to account for the Veteran’s service treatment records detailed account of injury to the back of his head after he was hit with a brick. This opinion does not address the Veteran’s lay statements that his neck condition is caused/aggravated by his back or knee condition. The matters are REMANDED for the following action: 1. Obtain any outstanding VA treatment records and associate them with the Veteran’s claim file. 2. Schedule the Veteran for an examination to determine the nature, onset and etiology of the Veteran’s headaches, knee, and cervical conditions. The claims file should be made available to the examiner. The examiner should record the full history of the identified disorders, including the Veteran’s competent account of his symptoms. Following review of the claims file and examination of the Veteran, the examiner should be sure to identify all current diagnoses and functional impairment of the right knee, left knee, headaches or neck. Thereafter, the examiner should opine as to whether it is least as likely as not that any identified condition had its onset in service or is otherwise caused by service. Where applicable the examiner should opine as to whether any identified condition is caused or aggravated by any other service connected disability. In issuing its opinion, the examiner should address the Veteran’s lay statements. In issuing the opinion the examiner should address whether it is least as likely as not that any identified knee problems, headaches or neck problems had their onset in service, is related to service, is caused or aggravated by his pes planus. The examiner should record and include   the full history of the identified disorders, including the Veteran’s competent account of his symptoms. STEVEN D. REISS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD K.Ijitimehin, Associate Counsel