Citation Nr: 21001249 Decision Date: 01/07/21 Archive Date: 01/07/21 DOCKET NO. 13-05 210 DATE: January 7, 2021 REMANDED Entitlement to service connection for a right knee disability, to include as secondary to service-connected plantar calluses left foot, is remanded. Entitlement to service connection for a right hip disability, to include as secondary to service-connected plantar calluses left foot, is remanded. REASONS FOR REMAND The Veteran served on active duty from July 1976 to July 1979. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a February 2011 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge in March 2016. A transcript of the hearing is of record. The Board remanded this matter in May 2016 and July 2018. In a July 2019 decision, the Board denied the issue of service connection for a right knee disability, and remanded the issue of service connection for a right hip disability. The Veteran appealed the Board’s July 2019 decision to the United States Court of Appeals for Veterans Claims (Court). In a June 2020 Order, the Court set aside part of the July 2019 decision denying the Veteran’s claim of service connection for a right knee disability, and remanded the matter to the Board for further development. Entitlement to service connection for a right knee disability, to include as secondary to service-connected plantar calluses left foot and entitlement to service connection for a right hip disability, to include as secondary to service-connected plantar calluses left foot are remanded. Regarding the right knee disability, in the June 2020 Court Order, the Court concluded that the Board failed to obtain an examination report that was adequate and substantially complied with the July 2018 Board remand. Specifically, the Board remanded this issue for an opinion to address the Veteran’s lay testimony that favoring his right leg due to his service-connected left foot disability caused or aggravated the right knee disorder. However, in the April 2019 VA opinion, the examiner failed to address whether favoring the Veteran’s right leg caused or aggravated the right knee disability, and failed to address the Veteran’s lay testimony. Therefore, on remand, an addendum VA opinion should be obtained to determine the etiology of the Veteran’s right knee disability with consideration of the impact of favoring his right leg due to his left foot disability as well as his lay testimony. Additionally, pursuant to the July 2019 Board remand, VA opinion was obtained to determine the etiology of the Veteran’s right hip disability. The examiner was requested to address the conflicting diagnosis found in 2011 and 2019 of a right hip disability. The examiner was also asked to provide an opinion on etiology of the Veteran’s right hip condition. In a January 2020 VA opinion, the examiner reiterated her opinion from the April 2019 VA opinion regarding etiology and stated that the Veteran did not have a diagnosed right hip condition. The examiner reiterated that the Veteran’s hips on the last x-ray in 2014 were both radiographically normal. Therefore, the Veteran’s current complaint of right hip pain was neither caused nor aggravated by his service-connected left foot plantar calluses nor prior left foot surgery. There was neither a consensus of evidence in the medical literature nor in the medical community that supported a causal relationship between hip pain and left foot calluses or residuals of a prior foot surgery. Regarding the conflicting right hip diagnosis, the examiner stated that the Veteran was seen by PCP on February 15, 2011 for right posterior/lateral hip pain in addition to other complaints. No diagnosed hip condition was given. At a follow up visit on February 17, 2011 right hip pain, no diagnosis was given. The examiner said that she did not see diagnosis of right hip strain in February 2011. However, if right hip strain diagnosis was confirmed, strains were self-limited. The examiner said that the Veteran did not have a chronic condition nor diagnosis involving the right hip. The Board notes that the examiner made an inaccurate statement not finding any diagnosis of right hip strain when the February 16, 2011 VA examination diagnosed “strain right hip”; however, the examiner still provided an opinion on if the Veteran had been diagnosed with right hip strain. The Board notes that a VA examination report must be “read as a whole.” See Monzingo v. Shinseki, 26 Vet. App. 97, 105-107 (2012); Acevedo v. Shinseki, 25 Vet. App. 286, 293 (2012). The Board finds that when reading the opinion as a whole, this inaccuracy does not undercut the weight of the probative value of the opinion. Nonetheless, the Board finds this VA opinion inadequate because it does not address the findings of right hip pain. The Court has held that pain in the absence of a presently-diagnosed condition can cause functional impairment, which may qualify as a disability for VA purpose. See Saunders v. Wilkie, 886 F.3d 1356, 1368 (Fed. Cir. 2018). Additionally, regardless of whether the Veteran’s right hip strain was self-limiting and not chronic, service connection may be granted if there is a disability at some point during the claim even if it later resolves or becomes asymptomatic. McLain v. Nicholson, 21 Vet. App. 319 (2007). Therefore, in light of Saunders, a remand is necessary to obtain an additional VA examination, or VA opinion, if unavailable for an examination. The examiner is directed to report the Veteran’s current symptomatology and to address whether the Veteran’s reported pain results in any functional impairment. See Saunders, 886 F.3d at 1362. Also, in light of McLain, the examiner must acknowledge that service connection may still be granted even if the disability resolved during the appeal period. The matters are REMANDED for the following actions: 1. Obtain any outstanding VA or private treatment records. Request that the Veteran assist with locating these records, if possible. Associate these records with the claims file. 2. Then, obtain a VA opinion from an appropriate examiner, other than the April 2019 VA examiner, to determine etiology of the Veteran’s right knee disability. The claims file and a copy of this remand must be made available for review. Following a pertinent review of the evidence the examiner must determine whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s right knee disability is due to favoring his right leg, due to his service connected plantar calluses left foot. A clear rationale must be provided for all opinions expressed. The examiner must consider and discuss the Veteran’s lay testimony, including that he carried building materials on his right side when he was a construction worker, due to his left foot disability. If the examiner is unable to provide an opinion without resorting to mere speculation, then the examiner must provide any information needed to make an opinion, if possible. 3. Also, schedule the Veteran for a VA examination with an appropriate examiner, other than the April 2019 and January 2020 VA examiner, to determine the etiology of the Veteran’s right hip pain. The claims file and a copy of this remand must be made available for review. Following a pertinent review of the evidence, the examiner must determine whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s right hip pain and any functional impairment is caused by service. The examiner must determine whether there is any functional impairment caused by the Veteran’s reported pain, to include any functional impairment caused by the Veteran’s reported pain during flare-ups. Evidence of pain alone that causes functional impairment, even without a specific diagnosis or identifiable disease, may constitute a disability for VA purposes. See Saunders. The examiner must also note that service connection may still be granted even if the disability resolved during the appeal period. See McLain. The Board notes that due to the COVID-19 pandemic, it may be difficult to schedule VA examinations. The Veteran should be afforded the opportunity to postpone his examination until such time as it can be scheduled. Alternatively, if appropriate, the RO may schedule a telemed examination or obtain a VA medical opinion(s) only. (Continued on the next page)   A clear rationale must be provided for all opinions expressed. The examiner must consider and discuss the Veteran’s lay testimony. If the examiner is unable to provide an opinion without resorting to mere speculation, then the examiner must provide any information needed to make an opinion, if possible. 4. Thereafter, readjudicate the claim on appeal. If the benefit sought remains denied, issue the Veteran and his representative a supplemental statement of the case and provide a reasonable opportunity to respond before returning the matter to the Board for further appellate review. MICHAEL MARTIN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Saudiee Brown 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.