Citation Nr: 21065282 Decision Date: 10/25/21 Archive Date: 10/25/21 DOCKET NO. 16-13 476 DATE: October 25, 2021 REMANDED Entitlement to service connection for a back disability is remanded. Entitlement to service connection for a bilateral knee disability is remanded. Entitlement to service connection for a bilateral foot disability is remanded. REASONS FOR REMAND The Veteran served on active duty from June 2007 to May 2008, and August 2010 to September 2011, and September 2020 to August 2021. He appeals a December 2014 rating decision by the Agency of Original Jurisdiction (AOJ). In June 2019, the Board remanded the Veteran's claims to the AOJ for further action consistent with the Board's remand directives. The claim is back before the Board for further appellate proceedings. Although the Board regrets the additional delay, further development is necessary prior to adjudication of this claim. 1. Back Disability 2. Bilateral Knee Disability The Board remanded the Veteran's claims in June 2019 in order to address the etiology of his claimed disabilities as they relate to his service while on deployment during the Gulf War. See June 2019 Board Remand; see also 38 C.F.R. § 3.317. Consequently, the Veteran attended a December 2019 VA examination. However, the Board finds that the December 2019 VA examination is inadequate for adjudicative purposes. Specifically, in considering 38 C.F.R. § 3.317, the Board is mindful of the holding in Stewart v. Wilkie. In that case, the Court of Appeals for Veterans Claims (Court) held an illness is a medically unexplained chronic multisymptom illness (MUCMI) where either the etiology or pathophysiology of the illness is inconclusive as to the individual Veteran. See Stewart v. Wilkie, 30 Vet. App. 383, 390-92 (2018). The December 2019 VA examiner simply stated that the Veteran's back, bilateral knee, and bilateral foot disabilities are diseases with clear and specific etiology and diagnosis. See December 2019 VA examination reports. The VA examiner did not discuss the pathophysiology of the disabilities as to the individual Veteran at all. Thus, remand is required to determine whether the Veteran's back, bilateral knee, or bilateral foot disabilities can constitute a MUCMI as to the individual Veteran. Additionally, even if service connection under the provisions of 38 C.F.R. § 3.317 is not warranted, the Veteran is not precluded from establishing service connection for a disease alleged to be related to service, as long as there is proof of such direct causation. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). Previously, the Veteran attended a December 2014 VA examination. The December 2014 VA examiner opined that the Veteran's claimed disabilities were not related to service because he did not have diagnosed back, knee, or foot disabilities. See December 2014 VA examination. However, the Board notes that pain alone can constitute a disability if it causes functional impairment. See Saunders v. Wilkie, 886 F.3d 1356, 1365-68 (2018). Moreover, the record now includes diagnoses for all the Veteran's claimed disabilities as documented by the December 2019 VA examiner. Specifically, the Veteran was diagnosed with patellofemoral pain syndrome of both knees, lumbosacral strain, and bilateral flatfoot. See December 2019 VA examination reports. Thus, the Board finds that remand is also warranted in order to provide the Veteran with an adequate VA examination and/or opinion in order to address said diagnoses as they relate to his contentions regarding direct service connection. 3. Bilateral Foot Disability In addition to the reasons for remand outlined above, the Board also notes that the record indicates the Veteran may have a right foot disability, right foot metatarsalgia with varus deformity, that was diagnosed between periods of active service. See September 28, 2008 Podiatry Consult Note; see also December 2014 rating decision. Thus, the question of preexistence has been raised. In this case, the Veteran did not indicate any health problems, including any issues with his feet, prior to his period of active duty beginning August 2010. He marked his health as generally "excellent." See June 2010 Periodic Health Assessment; see also October 2010 Pre-Deployment Health Assessment. As such, the presumption of soundness attaches and to rebut the presumption of soundness, VA must show that: (1) the condition clearly and unmistakably existed prior to service; and (2) the condition clearly and unmistakably was not aggravated during service. See Wagner v. Principi, 370 F.3d 1089, 1092 (Fed. Cir. 2004); 38 C.F.R. § 3.304(b). As such, the Board remands this matter for clarification as to whether the Veteran's right foot metatarsalgia with varus deformity clearly and unmistakably preexisted service and, if so, whether the preexisting right foot metatarsalgia with varus deformity was clearly and unmistakably not aggravated by the Veteran's military service. The matters are REMANDED for the following action: 1. Obtain any outstanding private treatment records and/or VA treatment records relevant to treatment the Veteran received for his above conditions that are not already of record. All obtained records should be associated with the evidentiary record. If any identified records are not obtainable (or none exist), the Veteran and his representative should be notified and the record clearly documented. 2. Thereafter, obtain an opinion from a qualified clinician to determine the nature and etiology of the Veteran's back, bilateral knee, and bilateral foot disabilities. The evidentiary record, including a copy of this remand, must be made available to and be reviewed by the reviewing clinician. It is up to the discretion of the reviewing clinician as to whether a new examination is necessary to provide an adequate opinion. After the record review and examination of the Veteran, if deemed necessary, the reviewing clinician is asked to respond to the following inquiries: (a.) As to diagnosed patellofemoral pain syndrome of both knees, lumbosacral strain, and bilateral flatfoot, is the etiology OR pathophysiology of the condition not understood AT ALL as to this particular Veteran?? (b.) As to diagnosed patellofemoral pain syndrome of both knees, lumbosacral strain, and bilateral flatfoot, if BOTH the etiology AND pathophysiology of the condition is understood AT ALL as to this particular Veteran, is it at least as likely as not that the diagnosed condition is attributable to service? (c.) Did the Veteran's right foot metatarsalgia with varus deformity clearly and unmistakably (obviously or manifestly) preexist the Veteran's entry into active service? The reviewing clinician is directed to the findings made in the September 28, 2008 Podiatry Consult Note diagnosing the Veteran with right foot metatarsalgia with varus deformity. Any discrepancies should be addressed as necessary. (d.) If so, is it also clear and unmistakable (obvious, manifest, and undebatable) that the right foot metatarsalgia with varus deformity WAS NOT aggravated (not permanently worsened beyond the natural progression) during active service? In rendering these opinions, the reviewing clinician is advised that the Veteran is competent to report his symptoms and history. Such reports must be acknowledged and considered in formulating any opinion. If the reviewing clinician rejects the Veteran's reports, he or she must provide an explanation for such rejection. The reviewing clinician is not to improperly discount the Veteran's lay statements or mistakenly rely on an absence of medical evidence in the record to support his or her conclusions. A complete rationale for all opinions should be set forth and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. If an opinion cannot be provided without resorting to mere speculation, the reviewing clinician must provide a complete explanation for why an opinion cannot be rendered. In so doing, the reviewing clinician must explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). 3. After the above development has been completed, readjudicate the claims. If any benefit sought remains denied, provide the Veteran and his representative with a supplemental statement of the case (SSOC), and return the case to the Board, if otherwise in order. DONNIE R. HACHEY Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Katie Poe, 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.