Citation Nr: 21004372 Decision Date: 01/27/21 Archive Date: 01/27/21 DOCKET NO. 16-12 667 DATE: January 27, 2021 REMANDED Entitlement to service connection for a right knee disability is remanded. Entitlement to service connection for a bilateral ankle condition is remanded. Entitlement to service connection for a left ear hearing loss disability is remanded. REASONS FOR REMAND The Veteran served on active duty from September 1992 to June 1996 from October 2001 to October 2002, from January 2006 to May 2006 and from June 2007 to July 2008. This matter came before the Board of Veterans Appeals (Board) on appeal from an August 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veteran’s Law Judge during a January 2021 hearing. The August 2014 Notice of Disagreement also included the issues of service connection for right ear hearing loss, a lumbar spine disability, tinnitus, and pes planus. A January 2016 rating decision granted service connection for a right ear hearing loss disability, lower lumbar strain with degenerative arthritis, tinnitus and bilateral pes planus with plantar fasciitis. As this constituted a complete grant of the benefit sought on appeal for those issues, they are not before the Board. 1. Entitlement to service connection for a right knee disability is remanded. The Veteran contends that his right knee disability is due to injury while serving as an infantryman. Specifically, he contends that he hurt his knee jumping out of a vehicle and continued to feel pain through the years when doing road marches and other activities The Veteran’s DD-214 shows a military occupational specialty (MOS) of infantryman. At the January 2021 Board hearing, the Veteran identified relevant outstanding private treatment records, reporting ongoing private treatment for his right knee disability. A remand is required to allow VA to obtain authorization and request these records. The Veteran has not yet been afforded a VA examination in connection with this issue. At the January 2021 hearing, the Veteran reported that he has right knee pain and impaired mobility. He also reported that he uses a knee brace. June 2015 VA treatment records also show a finding of abnormal right knee range of motion and extension-flexion of 0 to 135. The Board notes the Federal Circuit’s holding in Saunders v. Wilkie, which stated that even in the absence of a presently-diagnosed condition, pain can cause functional impairment, and that in that situation, “pain alone, without an accompanying diagnosis of a present disease, can qualify as a disability.” Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018). As the record indicates that the Veteran has right knee pain with functional loss and he has reported injuries consistent with his MOS of infantryman, the Board finds that a VA examination is required. McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). 2. Entitlement to service connection for a bilateral ankle condition is remanded. The Veteran contends that his bilateral ankle disability is due to injury while serving as an infantryman. Specifically, he contends that road marches with heavy rucksacks, rolling his ankles, and jumping out of plans and helicopters caused his bilateral ankle disability. The Veteran’s DD-214 shows a military occupational specialty (MOS) of infantryman and that he received the air assault badge. The Veteran has not yet been afforded a VA examination in connection with this issue. At the January 2021 hearing, the Veteran reported that he has bilateral ankle pain that can make it difficult to stand and bear weight. He also reported that he wears braces on the bilateral ankles. June 2015 VA treatment records also show reduced strength in the bilateral ankles on both plantar flexion and dorsiflexion. The Board notes the Federal Circuit’s holding in Saunders v. Wilkie, which stated that even in the absence of a presently-diagnosed condition, pain can cause functional impairment, and that in that situation, “pain alone, without an accompanying diagnosis of a present disease, can qualify as a disability.” Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018). As the record indicates that the Veteran has bilateral ankle pain with functional loss and he has reported injuries consistent with his MOS of infantryman and his receipt of the air assault badge, the Board finds that a VA examination is required. McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). 3. Entitlement to service connection for a left ear hearing loss disability is remanded. The June 2018 VA examination found that the Veteran’s left ear hearing loss disability did not meet the threshold criteria to be considered a disability for VA purposes. However, at the January 2021 Board hearing the Veteran testified that his hearing loss disability had worsened since that examination and he had more difficulty hearing. As the evidence of record suggests his hearing may have increased in severity since the most recent VA examination, there is a possibility that he may now meet the disability threshold. The Board therefore finds that the Veteran should be afforded a new examination. See Snuffer v. Gober, 10 Vet. App. 400 (1997). The matters are REMANDED for the following action: 1. Ask the Veteran to complete a VA Form 21-4142 for any private provider who treats his right knee disability. Make two requests for the authorized records from all identified providers, unless it is clear after the first request that a second request would be futile. 2. After the development above has been completed, schedule the Veteran for an appropriate VA examination, to determine the etiology of any current right knee and bilateral ankle disabilities. The examiner should review the file and provide a complete rationale for all opinions expressed. For any current right knee and bilateral ankle disability found to be diagnosed, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that any such disability is related to the Veteran’s active service, to include reports of road marches carrying heavy loads and jumping out of planes/helicopters. In providing the opinion, the examiner should consider and discuss any lay statements of record, to include the Veteran’s statements regarding his duties as an infantryman and the onset and persistence of his symptoms. 3. After the development in (1) above is completed, schedule the Veteran for an appropriate VA examination, to determine the nature and etiology of any current left ear hearing loss disability. The examiner should review the file and provide a complete rationale for all opinions expressed. For any left ear hearing loss disability found to be diagnosed, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that any such disability is related to the Veteran’s active service. In providing the opinion, the examiner should consider and discuss any lay statements of record, to include the Veteran’s statements regarding the onset and persistence of his symptoms. 4. If upon completion of the above action the appeal remains denied, the case should be returned to the Board after compliance with appellate procedures. E. I. VELEZ Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Arnold, 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.