Citation Nr: 21067624 Decision Date: 11/04/21 Archive Date: 11/04/21 DOCKET NO. 15-09 759 DATE: November 4, 2021 REMANDED Entitlement to service connection for a left hip condition is remanded. Entitlement to service connection for a right hip condition is remanded. Entitlement to service connection for a right knee condition is remanded. Entitlement to service connection for a left knee condition is remanded. Entitlement to service connection for a left ankle condition is remanded. Entitlement to service connection for a right ankle condition is remanded. REASONS FOR REMAND The Veteran had active service from September 1975 to September 1979 and from September 1979 to December 1982. The Veteran was honorably discharged from his first period of service. He was discharged from his second period of service in December 1982 as under other than honorable conditions, which bars him from VA benefits for this period of service as determined by an April 2007 VA administrative decision. These matters come to the Board of Veterans' Appeals (Board) from a July 2013 rating decision. In May 2018, the Veteran testified at a Board videoconference hearing before the undersigned Veterans Law Judge. A copy of the transcript from this hearing is associated with the claims file. These matters were remanded by the Board for additional development in September 2018 and December 2020. 1. Entitlement to service connection for a left hip condition is remanded. 2. Entitlement to service connection for a right hip condition is remanded. 3. Entitlement to service connection for a right knee condition is remanded. 4. Entitlement to service connection for a left knee condition is remanded. 5. Entitlement to service connection for a left ankle condition is remanded. 6. Entitlement to service connection for a right ankle condition is remanded. Unfortunately, there has not been substantial compliance with the Board's previous remand directives regarding these issues. In December 2020, the Board remanded these issues for service treatment records (STRs) to be obtained specifically, a December 1981 physical from Sandhofen, Germany, and the Veteran's separation examination from his second period of service. Upon remand, the Agency of Original Jurisdiction did not make any attempts to obtain these STRs. Also, in December 2020, the Board remanded these issues for VA medical opinions to be obtained. The Board asked the VA examiner to address pain as a compensable disability in rendering the opinions. In providing the June 2021 medical opinions, the VA examiner provided negative direct and secondary medical opinions primarily based on the rationale that the Veteran does not have current diagnoses. The examiner did not address pain as a compensable disability, as was specifically requested by the Board in its remand directives. See Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018) (The term "disability" in 38 U.S.C. § 1110 refers to the functional impairment of earning capacity, not the underlying cause of said disability, and in the context of a veteran's disability claim, pain may be considered a disability if it diminishes the body's ability to function, whether that pain is diagnosed as connected to a current underlying condition or not.). Accordingly, another remand is required for STRs and VA medical opinions to be obtained. Stegall v. West, 11 Vet. App. 268, 271 (1998). The matters are REMANDED for the following actions: 1. Obtain any outstanding STRs, specifically the record of a December 1981 physical from Sandhofen, Germany, and the Veteran's separation examination from his second period of service from the appropriate repository. Thereafter, associate any outstanding records with the claims file. If any identified records are not obtainable (or none exist), the Veteran and his representative should be notified and the record clearly documented. 2. Obtain an addendum opinion from an appropriate clinician regarding the Veteran's current bilateral hip, bilateral knee, and bilateral ankle pain. The Board notes that bilateral hip, bilateral knee, and bilateral ankle diagnoses cannot be provided; however, the Veteran's conditions manifest in symptoms that cause functional impairment. Therefore, the examiner should consider them "disabilities" for the purpose of providing the requested opinions below. The examiner must review the claims file. The examiner is asked to provide a response to the following: i) Are the bilateral hip pain, bilateral knee pain, and bilateral ankle pain at least as likely as not related to service, including reported knee and ankle problems during service, and/or July 1977 arthralgias due to HAA positive hepatitis, jumps from planes and running in boots during service with gear, and/or the Veteran's reports of consistent pain since service. The examiner should consider the records of ankle problems in January 1977 and April 1977, right foot pain in November 1975, July 1978, and September 1978, knee problems in April 1976, May 1976, July 1978, January 1979, February 1979 and July 1979, and August 1979, and a January 1982 record, during a period of non-qualifying service, of muscle strain to the groin area, and any other relevant records in the Veteran's STRs in forming an opinion. ii) Are the bilateral hip pain, bilateral knee pain, and bilateral ankle pain at least as likely as not proximately due to the service-connected lumbar spine disability and/or service-connected bilateral lower extremity radiculopathy? iii) Are the bilateral hip pain, bilateral knee pain, and bilateral ankle pain at least as likely as not aggravated beyond their natural progression by the service-connected lumbar spine disability and/or service-connected bilateral lower extremity radiculopathy? Provide a rationale to support the opinions. MARJORIE A. AUER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. M. Watkins, 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.