Citation Nr: 18155980 Decision Date: 12/06/18 Archive Date: 12/06/18 DOCKET NO. 16-15 795A DATE: December 6, 2018 REMANDED The claim of entitlement to service connection for a right knee disability, to include as secondary to service-connected left lower extremity radiculopathy or lumbar spine degenerative disc disease, is remanded. REASONS FOR REMAND The Veteran had honorable active duty service with the United States Navy from May 1985 to August 1993. The Veteran is a Gulf War Era Veteran. The Veteran also served during Peacetime. This matter is before the Board of Veterans’ Appeals (Board) on appeal from an October 2012 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia. The jurisdiction of the file currently resides with the Pittsburg Foreign Cases Regional Office. The Board notes that the Veteran filed his VA Form 9 greater than 60 days after the issuance of the Statement of the Case. 38 C.F.R. § 20.202 (2018); See VA Form 9, dated April 2016; Statement of the Case, dated January 2016. The Veteran, however, submitted communication with the Board asserting that he did not receive a Statement of the Case in a time frame that allowed him to timely respond due to a temporary relocation outside of the United States. See Correspondence, dated April 2016. The Board subsequently considered the Veteran’s statement and certified the appeal. See VA Form 8, dated May 2018. The appeal is REMANDED to the Agency of Original Jurisdiction. VA will notify the Veteran if further action is required. Entitlement to service connection for a right knee disability, to include as secondary to service-connected left lower extremity radiculopathy or lumbar spine degenerative disc disease, is remanded. The VA must provide an examination when the evidence shows: (1) A current disability; (2) an in-service event, injury, or disease; (3) some indication that the claimed disability may be associated with the established event, injury, or disease, and (4) insufficient competent evidence of record for the VA to make a decision. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). Once VA decides that it is appropriate to provide a VA examination, it must be an adequate one. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). The Board notes that the Veteran has not been afforded a VA examination to determine the etiology of his claimed right knee disability. The Board has considered the McLendon elements regarding his right knee disability. While the current evidence of record does not reveal a specific right knee medical diagnosis, the Veteran specifically reported that his right knee was aggravated by gait modifications required due to his left lower extremity. See VA Examination, Left Side Hemiparalysis, dated February 2012. The Veteran complained of knee pain during VA treatment in April 2015, although the specifically involved side was not indicated. The Veteran reports that he has requested an evaluation of his right knee on numerous occasions. See VA Form 9, dated April 2016. The Veteran is competent to testify as to symptomatology, including onset and activities that exacerbate these symptoms. See Barr v. Nicholson, 21 Vet. App. 303, 307-308 (2007). The Board notes that the Court of Appeals for the Federal Circuit recently found that pain alone can constitute a “disability” under 38 U.S.C. § 1110, because pain can cause functional impairment. Saunders v. Wilkie, 2017-1466, 2018 U.S. App. LEXIS 8467, at * 21 (Fed. Cir. Apr. 3, 2018). As such, considering this issue in light most favorable to the Veteran, the Board finds that the first McLendon element is met. While there is no evidence of an in-service event, injury, or illness, and the Veteran, himself, does not assert such an in-service incident, the Board finds that a VA examination is still necessary. See McLendon v. Nicholson, 20 Vet. App. 79 (2006); VA Form 9, dated April 2016. The Veteran has asserted that he has a limp due to his service-connected left lower extremity radiculopathy, which has caused a right knee disability. See VA Examination, dated February 2012. As such, a VA examination is necessary to determine whether the Veteran’s right knee disability is caused or aggravated by either his service-connected left lower extremity radiculopathy or his lumbar spine degenerative disc disease. See 38 C.F.R. § 3.310 (2018); Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). The matter is REMANDED for the following action: 1. Appropriate efforts should be made to obtain and associate with this case file any outstanding VA medical records and any outstanding treatment records, with all necessary assistance from the Veteran. All information obtained must be made part of the file. All attempts to secure this evidence must be documented in the claims file, and if, after making reasonable efforts to obtain named records, they are not able to be secured, provide the required notice and opportunity to respond to the Veteran and his representative. 2. Schedule the Veteran for an examination to determine the nature and etiology of any current hearing loss and tinnitus. The claims folder must be thoroughly reviewed by the examiner in connection with the examination, and such review must be reflected on the examination report. A complete history should be elicited directly from the Veteran. Any tests and studies deemed necessary by the examiner should be conducted. All findings should be reported in detail. An explanation for each opinion shall be provided. (a.) Identify each right knee diagnosis relevant to the Veteran’s current medical status. (b.) If no specific disability is identified upon examination, the examiner is reminded that pain alone can be considered a disability if there is associated functional loss. If the only identified disability is reported pain, the examiner is to identify and describe any and all functional loss associated with this reported pain. (c.) The examiner must provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that any current right knee disability is causally or etiologically related to the Veteran’s military service. (d.) The examiner should also specifically opine as to whether it is at least as likely as not (a 50 percent probability or more) that any current right knee disability is either caused by or permanently aggravated by the Veteran’s service-connected left lower extremity radiculopathy or lumbar spine degenerative disc disease. It should be noted that the Veteran is competent to attest to observable symptomatology. The examiner’s attention is invited to the Veteran’s statements concerning the onset of his/her claimed disabilities. The examiner is reminded that a medical opinion based solely on the absence of documentation in the record or that does not take into account the Veteran’s reports of symptoms and history is inadequate. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation If the examiner feels that the requested opinions cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). Jones v. Shinseki, 23 Vet. App. 382 (2010). The examiner is reminded that the term “as likely as not” does not mean “within the realm of medical possibility,” but rather that the evidence of record is evenly divided that, in the examiner’s expert opinion, it is as medically sound to find in favor of the proposition as it is to find against it. B. MULLINS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD R. E. Trotter, Associate Counsel