Citation Nr: 19166322 Decision Date: 08/27/19 Archive Date: 08/27/19 DOCKET NO. 14-25 824 DATE: August 27, 2019 REMANDED Entitlement to service connection for a right knee disability is remanded. Entitlement to service connection for a left knee disability is remanded. REASONS FOR REMAND The Veteran served on active duty from October 1979 to November 1981. These matters were remanded by the Board in June 2016 for an addendum VA medical opinion. While the Board regrets further delay, remand is again required to ensure compliance with the prior Board remand, and to afford the Veteran every possible consideration. 1. Entitlement to service connection for a right knee disability is remanded. 2. Entitlement to service connection for a left knee disability is remanded. The Veteran contends that his current left and right knee disabilities were incurred in service and were caused by training and running during active duty service. In June 2016, the appeal was remanded by the Board for consideration of congenital or developmental defect or disease in the Veteran’s knees. As discussed in the June 2016 remand, congenital or developmental defects are not service connectable in their own right, although service connection may be granted for additional disability due to disease or injury superimposed upon a defect during service. The Board remand cited a July 1990 VA General Counsel Precedent Opinion, which discussed the difference between a disease and defect. This document cited Dorland’s Illustrated Medical Dictionary, which explained that a defect is an imperfection, failure, or absence. A disease, on the other hand, has been broadly defined as any deviation from or interruption of the normal structure or function of any part, organ, or system of the body that is manifested by a characteristic set of symptoms and signs and whose etiology, pathology, and prognosis may be known or unknown. The document concluded that, as a generalized statement, defects are incapable of any improvement or deterioration. VAOPGCPREC 82-90 (1990). The June 2016 Board remand found that a medical opinion was necessary to determine whether the Veteran’s patella alta condition of the knees constituted a disease or defect. The remand directed the Veteran to answer additional questions based on whether the Veteran’s condition was found to be a disease or defect. In a September 2016 addendum opinion, the examiner found, in pertinent part, that the Veteran’s patella alta was neither a disease nor defect, but rather a “variant of normal.” The Board notes that the examiner’s description of the Veteran’s condition as “variant of normal” closely matches the description of “imperfection” described by Dorland’s Illustrated Medical Dictionary in the Precedent Opinion discussed above. However, the issue of whether the condition is a disease or defect is a medical question. The Board is prohibited from exercising its own independent judgment to resolve medical questions. See Colvin v Derwinski, 1 Vet. App. 171 175 (1991). Significantly, the examiner did not address the specific questions to be answered if the Veteran’ condition was found to be a disease or defect. In an August 2019 Informal Hearing Presentation, the Veteran’s representative argued that the September 2016 and February 2017 VA medical opinions were not compliant with the prior remand directives, and requested remand for a new VA medical opinion. The Board agrees that the VA examiner did not adequately address all the questions included in the June 2016 remand directives. Compliance with remand directives is not optional or discretionary, and the Board errs as a matter of law when it fails to ensure remand compliance. Stegall v. West, 11 Vet. App. 268 (1998). The Board further notes that VA medical examiners have found that the Veteran does not have a diagnosed left knee condition other than pain. During the pendency of this appeal, the United States Court of Appeals for the Federal Circuit (Federal Circuit), issued the decision of Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018), which the held that pain alone can be a functional impairment and therefore qualify as a disability for the purpose of establishing service connection. Specifically, the Federal Circuit expressed that “disability” as employed in 38 U.S.C. §§ 1110 and 1131, “refers to the functional impairment of earning capacity, not the underlying cause of said disability;” thus, pain can function as a “disability” without any current underlying condition, as pain itself diminishes the body’s ability to function. Nonetheless, the Federal Circuit explained that to establish the presence of a disability based on subjective pain, a Veteran “will need to show that his or her pain reaches a level of a functional impairment of earning capacity.” Given the unaddressed questions from the prior remand directives, and the Federal Circuit holding in Saunders, a remand is necessary to obtain a new VA examination and opinion. The matters are REMANDED for the following action: 1. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any left and right knee disabilities. The examiner must opine whether it is at least as likely as not related to an in-service injury, event, or disease. (a.) Attention is invited to the treatment for left and right knee pain and the diagnoses of knee strain in active service. The VA examiner should provide the current diagnosis for each knee, address the in-service complaints and treatment, and provide a medical opinion as to whether each knee disability is related active service. The VA examiner should comment on whether the Veteran had overuse injury to the left and right knees in active service and whether this led to the current knee disabilities. (b.) The examiner should specifically indicate whether the Veteran has or has had functional impairment of earning capacity due to his left or right knee disabilities, in accord with the holding of Saunders v. Wilkie, 886 F.3d 1356, 1363-68 (Fed. Cir. 2018), and if so, the examiner should express an opinion as to whether it is at least as likely as not it was incurred in or otherwise the result of the Veteran’s active service. (c.) The examiner must also opine as to whether it at least as likely as not (1) began during active service, (2) manifested within one year after discharge from service, or (3) was noted during service with continuity of the same symptomatology since service. (d.) The examiner is asked to consider whether the patella alta of the left and right knees is a congenital defect or disease. 1. If the examiner finds that the Veteran had a preexisting “disease” and not a “defect,” did the preexisting disease undergo a permanent increase in severity during service? If so, was such increase clearly and unmistakably due to the natural progress of the disability? 2. If a congenital knee “defect” was noted, was there an additional disability due to disease or injury superimposed upon the knee defect during service? If so, please identify the additional disability. JENNIFER HWA Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Casey, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.