Citation Nr: 21066882 Decision Date: 11/02/21 Archive Date: 11/02/21 DOCKET NO. 17-18 478 DATE: November 2, 2021 REMANDED Entitlement to service connection for a right hip disorder is remanded. Entitlement to service connection for a left hip disorder is remanded. Entitlement to service connection for a right foot disorder is remanded. Entitlement to service connection for a left foot disorder is remanded. Entitlement to service connection for a right knee disorder is remanded. REASONS FOR REMAND The Veteran had active service from October 1984 to October 1987. These matters come before the Board of Veterans' Appeals (Board) on appeal from an October 2014 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In November 2019, the Veteran appeared for a hearing before the undersigned. A transcript of the hearing is of record. These issues were previously remanded in an April 2021 Board decision to obtain VA medical opinions regarding secondary service connection. The Board finds that the VA medical opinions are not adequate and thus a remand is necessary to obtain adequate opinions. 1. Entitlement to service connection for bilateral hip, bilateral feet, and right knee disorders is remanded. The April 2021 Board decision remanded the issues to obtain medical opinions to address the etiology of the Veteran's bilateral hip disorder, right knee disorder, and bilateral foot disorder. It first requested the examiner to identify all of the Veteran's current disorders and that if any previously diagnosed disorder was not diagnosed to provide a supporting explanation. It then asked the examiner to opine on whether it was at least as likely as not that the Veteran's bilateral hip disorder, right knee disorder, and bilateral foot disorder were caused by any of the Veteran's service-connected disabilities, to include her spine disability and/or left knee disability. It then asked the examiner to opine on whether it was at least as likely as not that the Veteran's bilateral hip disorder, right knee disorder, and bilateral foot disorder were aggravated by a service-connected disability, to include her back and left knee disorder. The remand also requested that the examiner must specifically address the Veteran's lay statements regarding the etiology of each disability and address the May 2020 private medical opinion that indicated that the Veteran's back and/or left knee disorder was responsible for her gait abnormality which caused her bilateral hip disorder. In the May 2021 VA medical opinion, the examiner addressed the Veteran's lay statements and the August 2020 private medical opinion but did not address the lay statements or the private opinion adequately. While the Veteran reported that she started experiencing symptoms regarding each disorder after the back was injured and that she felt that the altered gait caused the hip, feet, and right knee disorders, the examiner simply repeated what the Veteran alleged and then furthered that there was no medical evidence to show that the Veteran experienced these disorders during service or even as a result of the altered gait. The examiner did not specifically address the Veteran's lay statements and made conclusory statements based off of the fact that there was no objective medical evidence to show that the Veteran's statements were true. Moreover, regarding the August 2020 private medical opinion, the examiner claimed that there was no objective evidence of a gait abnormality in the medical record and that there was no clear evidence from review of orthopedic literature that suggested that injury to one joint would have any significant impact on another or opposite joint unless an injury resulted in a major muscle or nerve damage causing partial or complete paralysis or by shortening of the injured limb resulting in length discrepancy of more than 5 centimeters so that the individual's gait pattern has been altered to the extent that clinically there is an obvious Trendelenburg gait. The examiner did not address the medical literature that the August 2020 medical opinion cited as resources to support the rationale. Thus, the issues of bilateral hip and right knee disorder must be remanded for a proper medical opinion with supporting rationale that addresses the positive medical literature the August 2020 medical opinion used to support its conclusion. Additionally, regarding the Veteran's bilateral foot disorder, the examiner claimed that there was no primary diagnosis for a bilateral foot disorder since there was only pain in both feet secondary to peripheral neuropathy. The examiner did not address whether the Veteran's pain caused functional impairment since there was no diagnosis. The United States Court of Appeals for the Federal Circuit has stated that "'disability' in [38 U.S.C] § 1110 refers to the functional impairment of earning capacity." See Saunders v. Wilkie, 886 F.3d 1356, 1363 (Fed. Cir. 2018). It was also stated in that case that "pain in the absence of a presently-diagnosed condition can cause functional impairment." It was additionally stated in Saunders that "to establish a disability, the veteran's pain must amount to a functional impairment. To establish the presence of a disability, a veteran will need to show that her pain reaches the level of a functional impairment of earning capacity." In short, Saunders indicated that pain alone may be a disability for VA service connection purposes. In addition, "[w]ith regard to the requirement that a claimant have a current disability before service connection may be awarded for that disability this requirement is satisfied when a claimant has a disability during the pendency of that claim." See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). Because the examiner did not provide a diagnosis and did not address whether the Veteran's pain amounted as a disability, another medical opinion is warranted. By this remand the Board makes no determination, expressed or implied, as to the credibility of any statements on file. The matters are REMANDED for the following action: 1. Forward the claims file to an appropriate clinician who has not previously provided an opinion in this case to determine the nature and etiology of the Veteran's bilateral foot disability. The clinician must note review of the claims file in his or her report. If the clinician determines that a new examination would be beneficial, one is to be provided. (a.) The clinician should identify any and all foot disorders attributable to the Veteran throughout the appellate period and/or determine whether the Veteran's bilateral foot pain is such that would reach a level of functional impairment that would affect the Veteran's earning capacity. (b.) For each condition so identified, or if the clinician determines that the Veteran's bilateral foot pain is such that would reach a level of functional impairment that affects earning capacity, the clinician should opine as to whether: 1. It is at least as likely as not (probability of 50 percent r more) that the Veteran's disorder and/or pain manifested was caused by a service-connected disability, to include the Veteran's back and left knee disabilities. 2. It is at least as likely as not (probability of 50 percent or more) that the Veteran's disorder and/or pain manifested was aggravated by the Veteran's service-connected disabilities, to include her back and left knee disabilities. (c.) In formulating his or her opinion, the clinician should consider and address the competent medical and lay evidence of record, including: the Veteran's service treatment records, her post-service VA and private medical records, and her competent lay statements regarding her first-hand in-service and post-service experiences and the onset and continuity of her symptomatology. (d.) If the clinician determines that the Veteran's bilateral foot disorder and/or pain is less likely than not due to service, the clinician should discuss what other factor(s) caused the disorder. 2. Obtain a medical opinion by a new clinician to address the etiology of the Veteran's bilateral hip disorder and right knee disorder. The electronic claims file must be made accessible to the clinician. If an addendum opinion is not feasible, schedule the Veteran for a VA examination to determine the etiology of her bilateral hip disorder and right knee disorder. (a.) Identify all of the Veteran's current bilateral hip and right knee disorders. If any previously diagnosed disability is not diagnosed the examiner should provide a supporting explanation. (b.) The examiner should opine as to whether it is at least as likely as not (50 percent or greater) that the Veteran's bilateral hip disorder and right knee disorder was caused by any of the Veteran's service-connected disabilities, to include the Veteran's back disability and/or left knee disability. (c.) The examiner should opine as to whether it is at least as likely as not (50 percent or greater) that the Veteran's bilateral hip disorder and right knee disorder was aggravated (made worse) by a service-connected disability, to include the Veteran's spine disability and/or left knee disability. If aggravation is found the examiner should identify a baseline level of severity of the Veteran's bilateral hip disorder and right knee disorder by medical evidence created before the onset of aggravation or by the earliest medical evidence created at any time between the onset of aggravation and the receipt of medical evidence establishing the current level of severity of the bilateral hip disorder and right knee disorder. If such cannot be done, it should be explained why. (Continued on the next page) 3. In rendering each of the requested opinions, the examiner must specifically consider and address: (1) the Veteran's lay statements regarding the etiology of her right knee disorder, bilateral hip disorder, and bilateral foot disorder; and (2) the May 2020 private opinion indicating through medical literature that the Veteran's service-connected back disorder and/or left knee disorder was responsible for her gait abnormality and that her gait abnormality caused her bilateral hip disorder. An explanation of all opinions expressed must be provided with consideration given to all evidence of record. Thomas H. O'Shay Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Imam, 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.