Citation Nr: 18148561 Decision Date: 11/07/18 Archive Date: 11/07/18 DOCKET NO. 16-18 720 DATE: November 7, 2018 REMANDED Entitlement to service connection for a back disability is remanded. Entitlement to service connection for a left knee disability is remanded. Entitlement to service connection for a right knee disability is remanded. Entitlement to service connection for a left hand disability is remanded. Entitlement to service connection for a right hand disability is remanded. Entitlement to an initial compensable disability rating for hypertension is remanded. REASONS FOR REMAND The Veteran served on active duty from June 1993 to September 2014. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a February 2015 rating decision. 1. Entitlement to service connection for a back disability. In Saunders v. Wilkie, F.3d 1356, 1362-63 (2018), the U.S. Court of Appeals for the Federal Circuit found that the term “disability” for VA compensation purposes refers to functional impairment of earning capacity, rather than the underlying cause of the impairment. See 38 C.F.R. § 4.10. The Federal Circuit thus held that pain alone, without diagnosed underlying pathology, can constitute a disability if it produces functional impairment. Saunders, F.3d 1356 at 1367-68. Conversely, subjective pain alone does not in itself constitute a disability unless it reaches the level of functional impairment of earning capacity. Id. The Board finds that the Veteran must be afforded a new VA examination and opinion to comply with Saunders. The Veteran underwent a Back (Thoracolumbar Spine) Conditions Disability Benefits Questionnaire (DBQ) in November 2014. The examination report shows that the Veteran does not have and has never been diagnosed with a thoracolumbar spine disability. It indicates that the Veteran started having upper back pain during his active service, that at one point his back pain was severe enough that he could not run, and that his disability has improved. It also notes that the Veteran experiences flare-ups that prevent him from running and jumping and cause him to feel like his back is misaligned. Diagnostic testing from October 2014 demonstrates unremarkable findings of the thoracic spine. The examination report does not indicate whether the Veteran’s thoracolumbar impacts his ability to work, but concludes that there is no pathology to render a diagnosis. Accordingly, the Board finds that because the Veteran reported back symptoms of pain and the examination report does not indicate whether the pain produces functional impairment that impacts his ability to work, a remand is necessary for a VA examination and opinion to evaluate any functional impairment related to the Veteran’s back symptoms. 2. Entitlement to service connection for a left knee disability 3. Entitlement to service connection for a right knee disability The Board finds that the Veteran must be afforded a new VA examination and opinion to comply with Saunders. 38 C.F.R. § 4.10. The Veteran underwent a Knee and Lower Leg Conditions DBQ in November 2014. The examination report shows that the Veteran has or had bilateral knee strain that was diagnosed in 2014. The examination report indicates that the Veteran’s knee pain began during active service while running, that the pain is located in his knee joints, that the disability is worsening, and that he experiences a popping sensation in his right knee. The examination report also notes that the Veteran experiences flare-ups that make it difficult to bend his knees and when he ascends and descends stairs. Diagnostic testing from October 2014 demonstrates right knee light fragmentation of tibial tubercle and possible mild overlying soft tissue swelling, which could indicate patellar tendinitis, jumper’s knee and no bony, joint, or soft tissue abnormalities identified in the left knee. The examination report does not indicate whether the Veteran’s left knee disability and right knee disability impact his ability to work, but concludes that there is no pathology to render a diagnosis. Accordingly, the Board finds that because the Veteran reported knee symptoms of pain and popping and the examination report does not indicate whether his symptoms produce functional impairment that impacts his ability to work, a remand is necessary for a VA examination and opinion to evaluate any functional impairment related to the Veteran’s knee symptoms. 4. Entitlement to service connection for a left hand disability 5. Entitlement to service connection for a right hand disability The Board finds that the Veteran must be afforded a VA examination and opinion to comply with Saunders. 38 C.F.R. § 4.10. The Veteran underwent a Hand and Finger Conditions DBQ in November 2014. The November 2014 examination report shows that the Veteran had a prior fracture to the 5th metacarpal. The examination report indicates that the Veteran began experiencing swollen and stiff hands during active service and that now his hands and fingers become swollen and stiff when working with his hands, which limit his ability to use his hands and fingers. The examination report also notes that the Veteran experiences flare-ups that make it difficult to use his hands and cause hand grip weakness, which requires exercises to alleviate. Diagnostic testing from October 2014 demonstrates right hand old, healed fracture of right 5th metacarpal and no other bony, joint, or soft tissue abnormalities identified and no bony, joint, or soft tissue abnormalities for the left hand. The examination report indicates that the Veteran’s hand disabilities impact his ability to work as his symptoms affect his grip strength. The examination report concludes that there is no pathology to render a diagnosis for either a right hand disability or left hand disability. Accordingly, the Board finds that because the Veteran reported hand symptoms of swelling and stiffness and the examination report does not consider whether his symptoms produce functional impairment that impacts his ability to work due to a finding of no current diagnosis, a remand is necessary for a VA examination and opinion to evaluate any functional impairment related to the Veteran’s hand symptoms. 6. Entitlement to an initial compensable disability rating for hypertension is remanded. The Board finds that a new VA examination is warranted to assess the current nature and severity of the Veteran’s service-connected hypertension. The Veteran was last afforded a VA Hypertension Examination in December 2014. The blood pressure readings noted on the examination report were taken in October 2014. The matters are REMANDED for the following action: 1. Obtain the Veteran’s VA treatment records for the period from May 2014 to the present. 2. Ask the Veteran to complete a VA Form 21-4142 for any adequately identified physicians and/or facilities. Make two requests for the authorized records from any adequately identified physicians and/or facilities, unless it is clear after the first request that a second request would be futile. 3. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any back disability, left knee disability, right knee disability, left hand disability, and right hand disability. (a.) Identify any back disability, left knee disability, right knee disability, left hand disability, and right hand disability. Back disability: (b.) The examiner must opine whether any current back disability or right hand disability is at least as likely as not related to an in-service injury, event, or disease. Left knee disability and right knee disability: (c.) The examiner must opine whether any current left knee disability or right knee disability is at least as likely as not related to an in-service injury, event, or disease. Left hand disability and right hand disability: (d.) The examiner must opine whether any current left hand disability or right hand disability is at least as likely as not related to an in-service injury, event, or disease. All examination findings, along with the complete rationale for all opinions expressed, must be set forth in the examination report. 4. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected hypertension. (a.) 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. (b.) 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. (c.) To the extent possible, the examiner should identify any symptoms and functional impairments due to the Veteran’s hypertension alone and discuss the effect of his hypertension on any occupational functioning and activities of daily living. (d.) If it is not possible to provide a specific measurement, or an opinion regarding flare-ups, symptoms, or functional impairment 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). (Continued on the next page)   All examination findings, along with the complete rationale for all opinions expressed, must be set forth in the examination report. JOHN Z JONES Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD S. Mussey, Associate Counsel