Citation Nr: 21065367 Decision Date: 10/26/21 Archive Date: 10/26/21 DOCKET NO. 17-65 931 DATE: October 26, 2021 REMANDED Entitlement to service connection for thoracic spine pain (back pain) is remanded. Entitlement to service connection for neck pain is remanded. Entitlement to service connection for left ankle pain is remanded. Entitlement to service connection for right ankle pain is remanded. Entitlement to service connection for left foot pain is remanded. Entitlement to service connection for right foot pain is remanded. Entitlement to service connection for left knee pain is remanded. Entitlement to service connection for an acquired psychiatric disorder is remanded. Entitlement to service connection for bilateral hearing loss is remanded. Entitlement to service connection for tinnitus is remanded. Preliminary Matters The Veteran had honorable active duty service with the United States Army from November 1973 to December 1976, to include service in Korea. This matter is before the Board of Veterans' Appeals (Board) on appeal from a January 2016 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran has claimed service connection for a mental health disorder. In Clemons v. Shinseki, 23 Vet. App. 1 (2009), the United States Court of Appeals for Veterans Claims (Court) held that a claimant seeks service connection for the symptoms of a disability, regardless of how those symptoms are diagnosed or labeled. Therefore, the claim has been recharacterized as one of entitlement to service connection for an acquired psychiatric disorder. The issue has thus been restated. In July 2021, the Veteran testified at a virtual Board hearing before the undersigned Veterans Law Judge (VLJ). A transcript of the hearing has been associated with the Veteran's electronic claims file. (CONTINUED ON NEXT PAGE) REASONS FOR REMAND Although further delay is regrettable, the Board finds that a remand is necessary in this case to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's claims so that he is afforded every possible consideration. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. 1. Entitlement to service connection for thoracic spine pain (back pain) is remanded. See Argument Below 2. Entitlement to service connection for neck pain is remanded. See Argument Below 3. Entitlement to service connection for left ankle pain is remanded. See Argument Below 4. Entitlement to service connection for right ankle pain is remanded. See Argument Below 5. Entitlement to service connection for left foot pain is remanded. See Argument Below 6. Entitlement to service connection for right foot pain is remanded. See Argument Below 7. Entitlement to service connection for left knee pain is remanded. See Argument Below 8. Entitlement to service connection for an acquired psychiatric disorder is remanded. See Argument Below 9. Entitlement to service connection for bilateral hearing loss is remanded. See Argument Below 10. Entitlement to service connection for tinnitus is remanded. Initially, the Board notes that most of the Veteran's service treatment records appear to be outstanding. A review of the Veteran's scanned service treatment records reveals that there are minimal treatment records, as only six pages of service treatment records, five of which are blank, have been uploaded into his electronic file. Furthermore, the Veteran's entrance and separation examinations for his period of active service are not associated with the claims file. Thus, on remand, an exhaustive search for the Veteran's missing service treatment records, including any treatment records from the Veteran's service in Korea, should be undertaken, and the Veteran should be notified of all unavailable records. Furthermore, the Board finds that potentially relevant medical treatment records are missing from the claims file. During the July 2021 hearing, the Veteran testified that he received private medical treatment for his claimed disabilities from Kaiser Permanente. Unfortunately, the Veteran's Kaiser Permanente records have not been associated with the claims file. Therefore, remand is warranted to obtain these outstanding medical treatment records, as they may be relevant to the claimed disabilities on appeal. Additionally, the record reflects that the Veteran has not been afforded a VA examination for his claimed disabilities of back pain, neck pain, left ankle pain, right ankle pain, left foot pain, right foot pain, left knee pain, or an acquired psychiatric disorder. During the July 2021 hearing, the Veteran testified that his back and various joint pain is a result of injuries sustained while playing combat football during his service in Korea. He also testified that, during a march in Korea, he stepped on a piece of shrapnel, injuring his right foot. As for his left foot, he developed a callous-like injury in service due to problems with his boots, resulting in a procedure he must currently undergo every two weeks. He further indicated that he twisted his right ankle in Fort Jackson, South Carolina. As a result of these injuries, the Veteran stated that he is in constant pain. He indicated that, during a 24-hour period, he experiences 16-17 hours of joint pain. Recently, the United States Court of Appeals for the Federal Circuit (Federal Circuit Court) held that a diagnosis is not required to establish the current disability element and that "pain is an impairment because it diminishes the body's ability to function, and that pain need not be diagnosed as connected to a current underlying condition to function as an impairment." Saunders v. Wilkie, 886 F.3d 1356, 1364 (Fed. Cir. 2018). Thus, pain alone can serve as a functional impairment, and therefore, qualify as a disability. Here, the Board finds that the Veteran's back pain, neck pain, left ankle pain, right ankle pain, left foot pain, right foot pain, and left knee pain cause functional impairment, and thus, constitute disabilities as interpreted in Saunders. With regard to the claimed acquired psychiatric disorder, the Veteran testified that his current psychiatric disorder is due to a personal assault in service. He described incidents in service in which his sergeant "physically put his foot up my [his] butt" and pounded him to the dirt. See July 2021 Hearing Transcript at pg. 5. An April 2015 VA treatment record shows a diagnosis of obsessive-compulsive disorder and insomnia. Furthermore, a November 2015 VA treatment record shows that the Veteran was prescribed medication for depression and anxiety. Thus, in light of the evidence of record and as the Veteran has not been afforded a VA examination in connection with his claims for back pain, neck pain, left ankle pain, right ankle pain, left foot pain, right foot pain, left knee pain, and an acquired psychiatric disorder, the Board finds that a remand for a VA examination of each of these claimed disabilities is warranted. The matters are REMANDED for the following action: 1. Identify and obtain any outstanding VA and private treatment records that are not already associated with the claims file, specifically private treatment records from Kaiser Permanente. Request the Veteran to provide authorization for release of all identified private medical records to VA. If any requested records are unavailable, or the search for such records otherwise yields negative results, that fact should be clearly documented in the record and the Veteran so notified in accordance with 38 C.F.R. § 3.159(e). All steps taken to attempt to obtain the above records should clearly be documented in the record. 2. Obtain all outstanding service treatment records, to include the Veteran's enlistment and separation examinations for his period of active service. All reasonable attempts to obtain such records should be made and documented. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile. This should be documented in the claims file. The Veteran must be notified in accordance with 38 C.F.R. § 3.159(e). 3. After all outstanding records have been obtained, schedule the Veteran for examination(s) by an appropriate clinician to determine the nature and etiology of his claimed disabilities of the back, neck, bilateral ankles, bilateral feet, and left knee. The Veteran's claims file and a copy of this remand should be provided to the examiner and the examination report should reflect that these items were reviewed. If an examination cannot be scheduled at a location to which the Veteran can safely travel, or if health considerations make the scheduling of an in-person examination not possible, the AOJ should consider whether other virtual options, to include telehealth interviews or examinations are possible. If virtual alternatives are not feasible or possible, the AOJ should indicate as much, and medical opinions based on review of the Veteran's claims file should be obtained, in lieu of an in-person or virtual examination, addressing the etiology of the Veteran's claimed disabilities. For each claimed disability, the examiner must opine whether it is at least as likely as not that any diagnosed disability manifested during, or as a result of, active military service. The examiner should note that pain alone can serve as a functional impairment, and therefore, qualify as a disability. Saunders v. Wilkie, 886 F.3d 1356, 1364 (Fed. Cir. 2018). All lay statements describing the Veteran's symptoms, manifestations, and onset must be fully considered and discussed. The examiner may not merely dismiss the Veteran's statements due to lack of contemporaneous medical records. Notably, the absence of documented evidence of a diagnosis or associated symptoms during and shortly after service should not, alone, serve as the sole basis for a negative opinion. A complete rationale must be provided for all opinions offered. If an opinion cannot be offered without resort to mere speculation, the examiner must fully explain why this is the case and identify what additional evidence, if any, would allow for a more definitive opinion. 4. Then, schedule the Veteran for a psychiatric examination to determine the nature and etiology of any current psychiatric disorder. If the Veteran is diagnosed with PTSD, the examiner must explain how the diagnostic criteria are met and opine whether it is at least as likely as not related to a verified in-service stressor. The examiner must opine whether the evidence of record, including the Veteran's lay statements, or any other available lay statements, and the Veteran's service records, corroborate the claim that a personal assault occurred in service (38 C.F.R. § 3.304(f)(5)). If the examiner finds that evidence indicates that a personal assault occurred during the Veteran's active service, the examiner must opine whether any PTSD is at least as likely as not related to the in-service personal assault. If any other acquired psychiatric disorders are diagnosed, the examiner must opine whether each diagnosed disorder is at least as likely as not related to an in-service injury, event, or disease, to include the Veteran's report of harassment by his sergeant. The examiner should address the Veteran's diagnoses of obsessive-compulsive disorder and insomnia, as well as his prescribed medication for depression and anxiety. See April 2015 and November 2015 VA treatment records. A complete rationale must be provided for all opinions offered. If an opinion cannot be offered without resort to mere speculation, the examiner must fully explain why this is the case and identify what additional evidence, if any, would allow for a more definitive opinion. 5. After completing all indicated development, the Veteran's claims should be readjudicated based on the entirety of the evidence. If any benefit sought on appeal is not granted, the Veteran and his representative should be provided a Supplemental Statement of the Case (SSOC) and afforded the requisite opportunity to respond before the case is remanded to the Board. B. MULLINS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Y. MacDonald, 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.