Citation Nr: 21067648 Decision Date: 11/04/21 Archive Date: 11/04/21 DOCKET NO. 16-43 956 DATE: November 4, 2021 REMANDED The issue of entitlement to service connection for a bilateral knee disability is remanded. The issue of entitlement to service connection for a bilateral ankle disability is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from June 1989 to August 1989, and from January 1991 to September 2011. These matters come before the Board of Veterans' Appeals (Board) on appeal from a May 2013 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In July 2021, the Veteran testified at a Board hearing before the undersigned. A transcript of that hearing has been associated with the electronic claims file. The Board notes that the Veteran has a 100 percent combined disability rating from August 22, 2016. 1. Entitlement to service connection for a bilateral knee disability. 2. Entitlement to service connection for a bilateral ankle disability. The Veteran is seeking entitlement to service connection for bilateral knee and ankle disabilities. He attributes these disabilities to the hard impacts that he sustained from numerous parachute jumps during his military service. During his July 2021 Board hearing, the Veteran testified that he was an infantry soldier and that he spent approximately fifteen years in Special Forces. He also testified that he participated in 65 recorded parachute jumps (but that he likely participated in twice as many jumps) and that he sustained bilateral knee and ankle injuries (e.g., rolled ankles, twisted/bent knees) as a result of the hard impact landings from those parachute jumps. He asserted that he carried 98 pound supply packs on his back and that an additional 50-60 pounds was often added to the pack depending on the supplies he carried. He indicated that he first received treatment for his knee and ankle condition while he was still on active duty and that he has experienced pain in his knees and ankles ever since service. A review of the Veteran's service record reveals that he was an Infantryman for 7 years and 5 months; a Special Forces Assistant Operations and Intelligence Sergeant for 6 years and 9 months; a Special Forces Engineer Sergeant for 8 years and 3 months; and a Special Forces Senior Sergeant for 4 years and 0 months. His DD Form 214 shows that he received numerous decorations and awards, including a Combat Infantryman Badge, an Expert Infantryman Badge; a Special Forces Tab; a Senior Parachutist Badge; and Air Assault Badge; a Royal Australian Army Parachutist Badge; and a Purple Heart. Thus, the Board finds that the Veteran's testimony regarding his participation in numerous parachute jumps and carrying a heavy supply pack to be credible evidence in support of his claims. The question for the Board is whether the Veteran has current bilateral knee and ankle disabilities that were incurred in or caused by his military service, to include numerous in-service parachute jumps. The Veteran's service treatment records (STRs) reflect that he reported right knee pain after running in March 1992. No specific injury was reported, and his right knee was documented as being "normal." In June 1994, the Veteran reported an injury to both knees after jumping into a mud puddle. He was noted to have abrasions to both knees. He was given wound care treatment and several days later it was noted that his knee "feels better" and that the abrasion below his patella was healing. He was diagnosed as having a contusion with otherwise "normal" knees. He reported several other episodes of knee pain, retropatellar pain syndrome, sprains, and twists that may or may not have been reported to the medical clinic during service. The Veteran's STRs also reflect occasional and remote instances of ankle pains. In May 1995, it was noted that the Veteran had a right ankle sprain. On VA examination in May 2012, the Veteran reported that he had turned his ankles many times during active duty service and that he was diagnosed with a severe ankle sprain in 1991. He indicated that he now has recurrent pain and that his ankles "give away." The examiner diagnosed the Veteran as having a bilateral ankle sprain manifested by painful motion. The Veteran also reported that he began having pain in both knees after jump school while on active duty in the Army. The examiner diagnosed the Veteran as having a bilateral knee strain manifested by reduced forward flexion but no functional loss or functional impairment. The VA examiner then opined that the Veteran's knee and ankle disabilities were "less likely than not" incurred in or caused by his military service. The examiner noted that the Veteran's x-rays did not reveal any abnormal findings and that it was unlikely that the strains/sprains which may have occurred three to eight years prior would be symptomatic currently or the cause of the Veteran's current symptoms. On VA examination in August 2016, the Veteran reported that his bilateral knee pain had its onset within the last several years and that he currently experiences daily pain in both knees that is worse with normal walking and walking up a flight of stairs. He indicated that he has not had any specific treatment for his knees such as surgery or injections and he stated that he had several strains and other injuries to his knees that may or may not have been reported the medical clinic during his military service. He also reported having several ankle sprains over the course of his military service; that he never had an ankle fracture or ankle surgery; and that he currently has constant bilateral ankle pain that is worse with walking. Based on a review of the evidence and an in-person evaluation of the Veteran, the VA examiner found that the Veteran did not have current bilateral knee or ankle disabilities and that his range of motion was normal in all categories tested. The examiner opined, "There is no competent evidence of a current disability related to his right and or left knee." Similarly, the examiner stated, "There is no competent evidence of an ongoing or chronic right and/or left ankle strain." The examiner further noted that the strains and sprains were temporary conditions of the musculoskeletal system that did not result in chronic health problems. The examiner concluded that the in-service strains and sprains were "acute and self-limited conditions and would not be expected to become chronic conditions." Regrettably, the Board finds it necessary to remand this appeal for additional evidentiary development. The Board observes that it has been nearly six years since the Veteran was last examined for his claimed knee and ankle disabilities. While the August 2016 VA examiner's findings may demonstrate that the knee and ankle disabilities diagnosed on VA examination in May 2012 may have resolved during the appeal period, the Veteran recently testified that his knees and ankles "are both screwed up" and that he has experienced ongoing pain since service as a result of the parachute jumps and heavy equipment packs that he carried during service. See July 2021 Board hearing transcript, p 4. The Board finds no reason to doubt the credibility of the Veteran's testimony. Moreover, even if the Veteran does not currently have diagnosable knee and ankle disabilities in the traditional sense, the United States Court of Appeals for the Federal Circuit has held that where pain causes functional impairment, a "disability" for VA compensation purposes can exist, even if there is no underlying diagnosis or pathology. See Saunders v. Wilkie, 886 F.3d 1356, 1367-68 (Fed. Cir. 2018). Under these circumstances, the RO must schedule the Veteran for VA knee and ankle examinations to ascertain the nature and etiology of his claimed disabilities. The examiner should review the evidence of record and evaluate the Veteran's knees and ankles. For all knee and ankle disabilities diagnosed on examination, the examiner must opine as to whether those disabilities were "at least as likely as not" (50 percent or greater probability) incurred in, caused by, or otherwise related to the Veteran's military service, to include 65 recorded (and potentially many more) parachute jumps and carrying heavy supply packs while on active duty. Even if the examiner finds that the Veteran does not have current knee or ankle disabilities in the traditional sense, the examiner must consider and discuss whether any current knee or ankle pain results in a functional impairment such that it would be considered a disability for VA purposes. In rendering such opinions, the examiner must provide adequate supporting rationale for all medical conclusions reached and address the Veteran's lay statements and testimony. These matters are REMANDED for the following actions: 1. Obtain any of the Veteran's outstanding medical records and associate them with the claims file. If possible, the Veteran himself should submit any pertinent new evidence regarding the condition at issue in order to expedite the claim. 2. Schedule the Veteran for VA knee and ankle examinations to ascertain the nature and etiology of his claimed disabilities. The examiner should review the evidence of record and evaluate the Veteran's knees and ankles. For all knee and ankle disabilities diagnosed on examination, the examiner must opine as to whether those disabilities were "at least as likely as not" (50 percent or greater probability) incurred in, caused by, or otherwise related to the Veteran's military service, to include 65 recorded (and potentially many more) parachute jumps and carrying heavy supply packs while on active duty. Even if the examiner finds that the Veteran does not have current knee or ankle disabilities in the traditional sense, the examiner must consider and discuss whether any current knee or ankle pain results in a functional impairment such that it would be considered a disability for VA purposes. In rendering such opinions, the examiner must provide adequate supporting rationale for all medical conclusions reached. The examiner should presume that the Veteran's lay statements and testimony are credible for the purpose of providing the requested opinion. 3. After undertaking any other appropriate development deemed necessary, readjudicate the issues on appeal based on the additional evidence of record. If the determination remains adverse to the Veteran, he must be provided with a supplemental statement of the case (SSOC). An appropriate period of time must then be allowed for a response before the record is returned to the Board for further review. John J. Crowley Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Michael L. Marcum, 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.