Citation Nr: 21074951
Decision Date: 12/16/21	Archive Date: 12/16/21

DOCKET NO. 19-37 536
DATE: December 16, 2021

ORDER

Entitlement to an earlier effective date prior to August 1, 2016 for service connection for residuals of a right shoulder strain is denied.

Entitlement to an earlier effective date prior to August 1, 2016 for service connection for residuals of a right knee strain with anterior cruciate ligament (ACL) tear is denied.

Entitlement to service connection for a respiratory disorder (initially claimed as bronchitis) is denied.

Entitlement to service connection for a gynecological disorder (initially claimed as "ovary syndrome") is denied.

REMANDED

Entitlement to service connection for a left ankle disorder is remanded.

Entitlement to service connection for a right ankle disorder is remanded.

Entitlement to service connection for a left knee disorder is remanded.

Entitlement to service connection for a lower back disorder is remanded.

Entitlement to an increased rating for service-connected residuals of a right shoulder strain (currently rated as 20 percent disabling effective August 1, 2016) is remanded.

Entitlement to an increased rating for service-connected residuals of a right knee strain with ACL tear (currently rated as 10 percent disabling effective August 1, 2016) is remanded.

FINDINGS OF FACT

1. The Agency of Original Jurisdiction (AOJ) granted the Veteran's initial claim for service connection for residuals of a right shoulder strain in the January 5, 2018 rating decision on appeal, and assigned an initial rating effective August 1, 2016the date of receipt of the Veteran's first intent to file a claim. 

2. The AOJ granted the Veteran's initial claim for service connection for residuals of a right knee strain with anterior cruciate ligament (ACL) tear in the January 5, 2018 rating decision on appeal, and assigned an initial rating effective August 1, 2016the date of receipt of the Veteran's first intent to file a claim. 

3. The preponderance of the evidence of record is against a finding that, notwithstanding an acute onset of an allergic reaction to fire ant bites in service and current seasonal allergies, the Veteran has a current diagnosis of any respiratory disorder eligible for service connection or any similar diagnosis (whether resolved or still manifesting) of any respiratory disorder eligible for service connection at any time during the appellate period; meanwhile, the evidence is also against a finding an in-service onset of any respiratory disorder eligible for service connection at any time during the appellate period.

4. The preponderance of the evidence of record is against a finding that the Veteran has a diagnosis of any gynecological disorder (initially claimed as "ovary syndrome"), and the evidence is against a finding of an in-service onset of any gynecological disorder eligible for service connection at any time during the appellate period.

CONCLUSIONS OF LAW

1. An effective date earlier than August 1, 2016 for the grant of service connection for residuals of a right shoulder strain is not warranted. 38 U.S.C. §§ 5107, 5110 (2012); 38 C.F.R. §§ 3.102, 3.155, 3.156, 3.400 (2021).

2. An effective date earlier than August 1, 2016 for the grant of service connection for residuals of a right knee strain with anterior cruciate ligament (ACL) tear is not warranted. 38 U.S.C. §§ 5107, 5110 (2012); 38 C.F.R. §§ 3.102, 3.155, 3.156, 3.400 (2021).

3. The criteria for entitlement to service connection for a respiratory disorder (initially claimed as bronchitis) have not been met. 38 U.S.C. §§ 1110, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303 (2021).

4. The criteria for entitlement to service connection for an ovary syndrome have not been met. 38 U.S.C. §§ 1110, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303 (2021).

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty service in the United States Marine Corps from May 2006 to May 2010.  This appeal comes before the Board of Veterans' Appeals (Board) on appeal of a January 5, 2018 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO).  The January 5, 2018 rating decision is modified by a March 13, 2019 rating decision that identified clear and unmistakable error in previously awarding an initial rating of zero percent for the right knee disorder.  That claim for an increased rating is recharacterized as in excess of 10 percent throughout the appellate period.  

Ultimately, the Veteran was issued a Statement of the Case (SOC) on October 19, 2019, and the VA Form 9 returned on December 3, 2019 confirms that all issues listed on the SOC should be appealed.  The appeal is accordingly perfected as to all issues now reflected on the title page.

The Board notes in passing that notwithstanding a previous history of transitioning to the male gender, correspondence from the Veteran's attorney as recent as June 2021 refers to the Veteran by the honorific "Ms." and the pronoun "she."  The Board shall use "she/her" pronouns throughout this decision. 

This appeal has been advanced on the Board's docket on account of sufficient good cause shown. 38 C.F.R. § 20.900(c). 38 U.S.C. § 7107(a)(2). See BVA Letter (Dec. 2, 2021).

Effective Date

The effective date of an evaluation and award of compensation on an original claim for compensation will be the day following separation from active duty service or the date entitlement arose if the claim is received within 1 year after separation from service; otherwise, the date of receipt of the claim or the date entitlement arose, whichever is later.  38 U.S.C. § 5110(a)-(b)(1); 38 C.F.R. § 3.400(b)(2).

The Court of Appeals for Veterans Claims (Court) has explained that, in an original claim for service connection, the date entitlement arouse is governed by the date the claim is received, not the date of the medical evidence submitted to support a particular claim.  See McGrath v. Gober, 14 Vet. App. 28 (2000). Where a prior unappealed decision becomes final and binding on a Veteran, the effective date of a subsequent award of service connection is the date of receipt of a reopened claim, not the date of receipt of the original claim. Sears v. Principi, 16 Vet. App. 244 (2002); Melton v. West, 13 Vet. App. 442 (2000).

Under VA laws and regulations, a specific claim in the form prescribed by the VA must be filed in order for benefits to be paid or furnished to any individual under laws administered by the VA.  38 U.S.C. § 5101(a); 38 C.F.R. § 3.151(a).  Any communication or action indicating intent to apply for one or more benefits under laws administered by the VA, and identifying the benefits sought, may be considered an informal claim. 38 C.F.R. § 3.155(a).

The provisions of 38 U.S.C. § 5101(a) mandate that a claim must be filed in order for any type of benefit to accrue or be paid.  See Jones v. West, 136 F.3d 1296, 1299 (Fed. Cir. 1998).  Further, the mere presence of medical evidence in the record does not establish intent on the part of the Veteran to seek service connection for the benefit in question.  Brannon v. West, 12 Vet. App. 32, 34-5 (1998).  While the Board must interpret the Veteran's submissions broadly, the Board is not required to conjure up issues that were not raised by the Veteran.  Id. 

The word "claim" includes a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit. 38 C.F.R. § 3.1(p); Brannon v. West, 12 Vet. App. 32, 34-35 (1998); Servello v. Derwinski, 3 Vet. App. 196, 199 (1992).  Any communication or action indicating intent to apply for one or more benefits under laws administered by VA from a Veteran may be considered to be an informal claim.  Such an informal claim must identify the benefits sought.  Upon receipt of an informal claim, if a formal claim has not been filed, an application form will be forwarded to the claimant for execution.  38 C.F.R. § 3.155(a).  To determine when a claim was received, the Board must review all communications in the claims file that may be construed as an application or claim.  See Quarles v. Derwinski, 3 Vet. App. 129, 134 (1992).

In this regard, as of such date, a claimant, or certain other individuals as specified in section 3.155(b), may indicate a claimant's intent to file a claim for benefits by submitting an intent to file a claim to VA. 38 C.F.R. § 3.155(b). An intent to file a claim must provide sufficient identifiable or biographical information to identify the claimant. Upon receipt of the intent to file a claim, VA will furnish the claimant with the appropriate application form prescribed by the Secretary. If VA receives a complete application form prescribed by the Secretary, as defined in 38 C.F.R. § 3.160(a), appropriate to the benefit sought within one year of receipt of the intent to file a claim, VA will consider the complete claim filed as of the date of the intent to file a claim was received. 38 C.F.R. § 3.155(b).

In this regard, VA may not pay a benefit before a claim is made.  38 U.S.C. § 5101; Jones v. West, 136 F.3d 1296, 1299 (Fed. Cir. 1998) (stating that "[38 U.S.C.A. §] 5101 is a clause of general applicability and mandates that a claim must be filed in order for any type of benefits to... be paid under the laws administered by the Secretary.")  The mere presence of medical evidence does not establish intent on the part of the Veteran to seek service connection for a disability. Lalonde v. West, 12 Vet. App. 377, 382 (1999); Brannon v. West, 12 Vet. App. 32, 35 (1998).  More specifically, a medical examination report is only considered an informal claim for an increase in disability benefits if service connection has already been established for the disability.  MacPhee v. Nicholson, 459 F.3d 1323, 1327 (Fed. Cir. 2006); see also 38 C.F.R. § 3.157(b)(1) (medical records can serve as informal claim "when such reports relate to examination or treatment of a disability for which service-connection has previously been established").  Likewise, the mere presence of a disability does not establish intent on the part of the Veteran to seek service connection for that condition.  Crawford v. Brown, 5 Vet. App. 33, 35 (1995); KL v. Brown, 5 Vet. App. 205, 208 (1993)

1. Entitlement to an earlier effective date prior to August 1, 2016 for service connection for residuals of a right shoulder strain is denied.

2. Entitlement to an earlier effective date prior to August 1, 2016 for service connection for residuals of a right knee strain with anterior cruciate ligament (ACL) tear is denied.

The Veteran has asserted that she is entitled to an earlier effective date prior to August 1, 2016, for the grant of service connection for residuals of right shoulder strain and residuals of right knee strain. The Veteran was discharged from service in May 2010.  There is simply no evidence to suggest that any claim of hers for service connection for any disorder was received prior to August 1, 2016. See Notification Letter (Aug. 1, 2016). More specifically, there are only two documents in the Veteran's claims file of any kind generated prior to August 1, 2016, and these two documents each pertain to her debt to the VA caused by overpayment of benefits to which she was not entitled.  See DMC  First Demand Letters (May 16, 2011; Feb. 26, 2012).  

With no evidence that the VA received her claims for entitlement to service connection any earlier than August 1, 2016, the RO granted the claims for the right knee and right shoulder effective August 1, 2016.  To the extent that the Veteran may disagree with the effective date of August 1, 2016, the evidence of record provides no basis for an award of service connection prior to that date. See 38 C.F.R. §§ 3.1(p), 3.155(a). See also Brokowski v. Shinseki, 23 Vet. App. 79, 84 (2009); MacPhee v. Nicholson, 459 F.3d 1323, 1326-27 (Fed. Cir. 2006) (holding that the plain language of the regulations requires a claimant to have intent to file a claim for VA benefits). 

While, under the provisions of 38 C.F.R. § 3.157(b)(1), the date of outpatient or hospital examination or the date of admission to a VA or uniformed services hospital will be accepted as the date of receipt of a claim, the Court has held that this regulation only applies to a defined group of claims.  See Sears v. Principi, 16 Vet. App. 244, 249 (2002) (section 3.157 applies to a defined group of claims, i.e., as to disability compensation, those claims for which a report of a medical examination or hospitalization is accepted as an informal claim for an increase of a service-connected rating where service connection has already been established).  VA medical records cannot be accepted as an informal claim for disability where service connection has not been established.  The mere presence of medical evidence does not establish intent on the part of the Veteran to seek service connection for a condition.  See Brannon v. West, 12 Vet. App. 32, 35 (1998). Merely seeking treatment does not establish a claim, to include an informal claim, for service connection.

Therefore, while the Board is sympathetic to the Veteran's general argument that the disorders were incurred in service, the Board cannot escape the conclusion that the AOJ only received her intent to file an initial claim for service connection on August 1, 2016.  The claims for service connection for residuals of right shoulder strain and residuals of right knee strain were granted effective the date of the claims; therefore, the Board is precluded from awarding an earlier effective date.  To the extent that the Veteran may be evoking a Clear and Unmistakable Error (CUE) committed by the AOJ, the Board determines that it does not have jurisdiction to find CUE, but the Veteran is free to file a specific motion alleging CUE.

The law and regulations surrounding the assignment of an effective date for an initial claim for service connection are clear and specific, namely the effective date is the date of receipt of the claim in a case where the receipt of claim comes after entitlement arose, and when the claim was received more than one year after discharge. See 38 C.F.R. § 3.400(r).  There is no evidence of record to support any finding that the Veteran submitted a claim for service connection within one year of discharge, and there is also no evidence to suggest that any such claim was received earlier than August 1, 2016.  Based on the analysis above and after reviewing the totality of the evidence, the Board finds that the effective date for the grants of service connection for residuals of a right knee and a right shoulder disorder have each been appropriately assigned as the date the claims were received, i.e., August 1, 2016. See 38 C.F.R. § 3.400(r).

Within this restriction, the Board is precluded by law from assigning an effective date prior to August 1, 2016 for the grants of service connection for residuals of a right knee strain with ACL tear and of a right shoulder strain.  Accordingly, the preponderance of the evidence is against the claims for an effective date prior to August 1, 2016 for the award of service connection for such disability, and, as such, the benefit-of-the-doubt doctrine does not apply. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). 

Service Connection

Generally, service connection will be granted for a disability resulting from an injury or disease caused or aggravated by service. 38 U.S.C. § 1110. A grant of service connection for a disability requires: (1) a present disability or persistent or recurrent symptoms of a disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship ("nexus") between the present disability and the in-service event, injury, or disease. 38 C.F.R. § 3.303; see Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).

The existence of a current disability is the cornerstone of a claim for VA disability compensation. 38 U.S.C. §§ 1110, 1131; Degmetich v. Brown, 104 F.3d 1328 (1997). The current disability requirement is satisfied when a claimant "has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim," McClain v. Nicholson, 21 Vet. App. 319, 321 (2007), or "when the record contains a recent diagnosis of disability prior to... filing a claim for benefits based on that disability." Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013). In the absence of proof of a current disability, there can be no valid claim. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). 

3. Entitlement to service connection for a respiratory disorder (initially claimed as bronchitis) is denied.

The Veteran asserts that she is entitled to service connection for a respiratory disorder.  The Veteran presented before a VA examiner on December 4, 2017. See C&P Exam (Dec. 4, 2017).  The Veteran stated that "Basically around the change of season from hot to cold I get bronchitis like clockwork and it's the worst pain in my chest, have to take antibiotics, once a year.  It started happening when I got to the DC area.  I don't know if it had something to do with the building at the Pentagon or the area, but that was the first time I had bronchitis.  I used to be a smoker but stopped 5 years ago.  I've never had hay fever.  I did not have pulmonary function testing in service." See id. at Section II ("Medical History").

Ultimately, the examiner concluded that the Veteran has no applicable diagnoses that would suggest entitlement to service connection for any respiratory disorder. See id. at Section III ("Pulmonary Conditions").  The Veteran's respirations were even and unlabored, with lungs clear to auscultation, and pulse oximetry levels at 100 percent. Id.  Ultimately, the examiner stated that along with normal respiratory exam findings, there was no evidence of any chronic respiratory condition in the Veteran's service treatment records, while clarifying that "annual bronchitis episode is not the same condition as chronic bronchitis." Id. at Section V, Question No. 2.  The Board further notes that one isolated episode of difficulty breathing is due to an allergic reaction to fire ants, see STR (July 3, 2006), and that this acute, resolved reaction does not constitute evidence of a disorder entitled to service connection either. See 38 C.F.R. § 4.9.  The VA examiner's December 2017 opinions are plausible and consistent with the evidence of record. Caluza v. Brown, 7 Vet. App. 498 (1995).  Finally, there is no contrary positive evidence of record that could be weighed against this negative opinion.

While statements from the Veteran reflect her continued assertion that she has bronchitis, the most probative medical evidence does not support her opinion.  While the Veteran is competent to report symptoms (such as, in this case, difficulty breathing), she is not necessarily competent to attribute such symptoms to a specific underlying respiratory disorder.  In this regard, the Board ultimately places more weight on the medical opinions and clinical findings of record on the matter of whether the Veteran has a current diagnosis of bronchitis or another respiratory disorder that is related to her service.

The Board acknowledges the United States Court of Appeals for Veteran's Claims (Court)'s holding in Saunders but does not find a basis for determining that there is functional impairment related to any alleged respiratory diagnosis, assuming arguendo that an applicable diagnosis is present.  See Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018).  Ultimately, as the evidence of record shows that the Veteran does not have a current diagnosed respiratory disorder, nor did she have any such disorder at any time during the appellate period, the Board concludes that service connection is not warranted and no further discussion of the remaining elements is necessary. See Watson v. Brown, 4 Vet. App. 309, 314 (1993) ("A determination of service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or a disease incurred in service."); see also Coburn v. Nicholson, 19 Vet. App. 427, 431 (2006) (finding that the absence of any one element will result in denial of service connection).

For the reasons above, the benefit of the doubt rule does not apply, and the claim for service connection for a respiratory disorder is denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-4 (1990).

4. Entitlement to service connection for a gynecological disorder (initially claimed as "ovary syndrome") is denied.

The Veteran asserts that she has a gynecological disorder that is related to service.  The Veteran presented before a VA examiner on December 4, 2017.  See C&P Exam (Dec. 4, 2017).  In short, the examiner concluded that the Veteran did not then currently have, nor had she ever had, a diagnosed gynecological condition.  Notably, this negative conclusion reconciles the Veteran's previous medical history of an ovarian cyst rupture from 2008 that resolved without residuals, see id. at Page 6 ("Diagnoses").  Furthermore, the December 2017 examiner acknowledged that in 2009, the Veteran had a working diagnosis of polycystic ovary syndrome (PCOS), see STR (Sept. 30, 2009) (rec'd Mar. 13, 2019); however, the examiner concluded that this is more likely incorrect because her serum testosterone was within a normal range, and she denied having had or currently having problems with acne or other signs of hyperandrogenemia. See id.  The VA examiner's December 2017 opinions are plausible and consistent with the evidence of record. Caluza v. Brown, 7 Vet. App. 498 (1995).  Finally, there is no contrary positive evidence of record that could be weighed against this negative opinion.

While statements from the Veteran reflect her continued assertion that she has a gynecological disorder from her cyst history, the most probative medical evidence does not support her opinion.  While the Veteran is competent to report symptoms, she is not necessarily competent to attribute such symptoms to a specific underlying gynecological disorder.  In this regard, the Board ultimately places more weight on the medical opinions and clinical findings of record on the matter of whether the Veteran has a current diagnosis of a gynecological disorder that is related to her service.

The Board acknowledges the United States Court of Appeals for Veteran's Claims (Court)'s holding in Saunders but does not find a basis for determining that there is functional impairment related to any alleged gynecological diagnosis, assuming arguendo that an applicable diagnosis is present.  See Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018).  Ultimately, as the evidence of record shows that the Veteran does not have a current diagnosed gynecological disorder, nor did she have any such disorder at any time during the appellate period, the Board concludes that service connection is not warranted and no further discussion of the remaining elements is necessary. See Watson v. Brown, 4 Vet. App. 309, 314 (1993) ("A determination of service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or a disease incurred in service."); see also Coburn v. Nicholson, 19 Vet. App. 427, 431 (2006) (finding that the absence of any one element will result in denial of service connection).

For the reasons above, the benefit of the doubt rule does not apply, and the claim for service connection for a gynecological disorder is denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-4 (1990).

REASONS FOR REMAND

1. Entitlement to service connection for a left ankle disorder is remanded.

2. Entitlement to service connection for a right ankle disorder is remanded.

The Veteran submitted to a VA examination of her bilateral ankles in December 2017. See C&P Exam (Dec. 4, 2017).  At that time, the examiner stated that she did not have any current diagnosis associated with any such disorder.  This examination report is now inadequate because it predates Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018), which holds that pain manifesting in functional impairment can be a disability for VA purposes.  An addendum opinion is required at the very least, if not a new examination.  As the Board concludes that it is precluded from issuing a final determination herein, a remand is required.

3. Entitlement to service connection for a left knee disorder is remanded.

The Board observes two examination reports from August 2019 as pertaining to the Veteran's claim for service connection for the left knee. See C&P Exams (rec'd Aug. 6, 2019).  One states that "there is no objective evidence to diagnose a left knee condition at this time," see id. at Question No. 15, while the other concludes that a clearly and unmistakably preexisting disorder of the left knee, see generally 38 U.S.C. §§ 1111, 1153, was clearly and unmistakably not aggravated beyond the natural progression of the disorder, see id. at Medical Opinion, Section V.  The Board cannot reconcile these inconsistent findings.  If there is no diagnosis of the left knee, then there should not be a clearly and unmistakably predating diagnosis either, but if there is a clearly and unmistakably preexisting diagnosis, then it should have been duly identified.  This claim is remanded accordingly.

4. Entitlement to service connection for a lower back disorder is remanded.

A VA examination is required when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, (2) evidence establishing that an event, injury, or disease occurred in service, or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran's service or with another service-connected disability, but (4) there is insufficient competent medical evidence on file for the Secretary to make a decision on the claim. McLendon v. Nicholson, 20 Vet. App. 79 (2006). See also 38 U.S.C. § 5103A(d)(2), 38 C.F.R. § 3.159(c)(4)(i). The third prong, which requires that the evidence of record "indicate" that the claimed disability or symptoms "may be" associated with the established event, is a low threshold. McLendon, 20 Vet. App. at 83.

By way of background, the Veteran states that she was in an automobile accident during active duty service, and that that is the etiology of a current back disorder.  As of and as per the January 2018 rating decision, the claim was denied without an examination because there was no evidence of any such event, disease, or injury in service, nor was there evidence of complaints, treatment, or diagnosis for the disorder within the service treatment records.

The Board concludes that there is such evidence within the service treatment records after all. See STR (Mar. 6, 2009) (rec'd Mar. 13, 2019).  Having located evidence of an in-service occurrence, the Board concludes that under McLendon, an examination is warranted to confirm the current diagnosis and to obtain an etiological opinion.  This claim is accordingly remanded. 

5. Entitlement to an increased rating for service-connected residuals of a right shoulder strain (currently rated as 20 percent disabling effective August 1, 2016) is remanded.

The Board is in receipt of the Veteran's medical records as recent as November 28, 2018, see VA Medical Records (rec'd Mar. 12, 2019), and the examination report as pertaining to the Veteran's right shoulder dated August 6, 2019.  Notwithstanding any conclusion as to the propriety of the rating as of that date, the Board cannot escape the conclusion that the appellate period extends past August 6, 2019.  The Federal Circuit has held that VA's duty to assist includes the duty to obtain VA medical records, regardless of the relevancy of those records. See Sullivan v. McDonald, 815 F.3d 786 (Fed. Cir. 2016). As new records might yield further evidence of worsening symptoms that may, in turn, render the August 2019 examination report obsolete, see generally Allday v. Brown, 7 Vet. App. 517 (1995); Caffrey v. Brown, 6 Vet. App. 377 (1994); Snuffer v. Gober, 10 Vet. App. 400 (1997), the Board cannot escape the conclusion that it is precluded from adjudicating this claim as well.  As a result, the Board must remand.

6. Entitlement to an increased rating for service-connected residuals of a right knee strain with ACL tear (currently rated as 10 percent disabling effective August 1, 2016) is remanded.

As indicated above, the Board is remanding the claim for service connection for a left knee disorder.  The Board additionally concludes that as the current severity of the right knee disorder may be inextricably intertwined by future findings as to the left knee, adjudication should be deferred accordingly. In addition, the last VA examination addressing the right knee was in August 2019, more than two years ago.

The matters are REMANDED for the following action:

1. The Veteran should be given an opportunity to identify any outstanding private or VA treatment records relevant to the claim on appeal. After obtaining any necessary authorization from the Veteran, all outstanding records, to include any VA treatment records, should be obtained.

For private treatment records, make at least two (2) attempts to obtain records from any identified sources. If any such records are unavailable, inform the Veteran and her attorney, and afford them an opportunity to submit any copies in their possession.

For federal records, all reasonable attempts should be made to obtain such records. VA medical records as of November 28, 2018 appear to be associated with the claims file, but no subsequent records after that date are of record.  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, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C. § 5103A(b)(2) and 38 C.F.R. § 3.159(e).

2. After the receipt of any outstanding records, schedule the Veteran for all appropriate VA examinations to determine the current nature and severity of her service-connected right shoulder disorder (currently rated at 20 percent) and right knee disorder (currently rated at 10 percent). Whether the Veteran may be required to submit to in-person examinations for any of the above is left to the discretion of the AOJ. The record, including a complete copy of this remand, must be made available for review in connection with the examination, and all indicated tests should be performed.

All necessary tests and studies should be conducted.

The examiner must also discuss the functional effects of the Veteran's service-connected right shoulder and right knee disorders.

A complete rationale for the examiner's opinions should be provided, citing to specific evidence of record, as necessary.

3. The AOJ should then obtain an addendum opinion clarifying the diagnosis and etiology of the Veteran's left knee disorder.  Namely, this addendum opinion should specifically reconcile separate August 6, 2019 examination reports that paradoxically state that there is no diagnosis of a left knee disorder, but that a disorder clearly and unmistakably preexisted service.

If the examiner should still conclude that there is no applicable diagnosis for a left knee disorder at any time during the appellate period (which begins on August 1, 2016), then such a negative conclusion must specifically address the relevance or lack thereof of Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018), which holds that pain manifesting in functional impairment can be a disability for VA purposes.

For every diagnosis rendered about the left knee, the examiner should also state whether each one clearly and unmistakably predates service.  

If the examiner finds the left knee disorder did clearly and unmistakably preexist service, the examiner should opine whether it was it clearly and unmistakably not aggravated by service.

If the examiner finds that left knee disorder either did not clearly and unmistakably preexist service or was not clearly and unmistakably not aggravated by service, the examiner must opine whether it is at least as likely as not related to service, including the November 2007 service treatment record noting left knee pain.

A rationale should be provided for all opinions offered. If it is not possible to provide a specific opinion regarding the above questions, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training).

The medical opinion must support the conclusions reached with an analysis that is adequate for the Board to consider and weigh against other evidence of record; medical opinions must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. If an opinion cannot be expressed without resort to speculation, ensure that the clinician so indicates and discusses why an opinion is not possible, to include whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge.   

4. The AOJ should conduct a VA examination to confirm all applicable diagnoses of the Veteran's lower back disorder and obtain etiological opinions, to include whether the low back pain is related to the in-service car accident noted in March 2009.  If the examiner should conclude that there are no applicable diagnoses during the appellate period, then such a negative conclusion must be specifically reconciled with Saunders and a service treatment records notation that the Veteran was in an automobile accident in March 2009 and reported low back pain.

A rationale should be provided for all opinions offered. If it is not possible to provide a specific opinion regarding the above questions, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training).

The medical opinion must support the conclusions reached with an analysis that is adequate for the Board to consider and weigh against other evidence of record; medical opinions must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. If an opinion cannot be expressed without resort to speculation, ensure that the clinician so indicates and discusses why an opinion is not possible, to include whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. 

5. The AOJ should readjudicate the Veteran's claim for service connection for a bilateral ankle disorder.  By way of background, the Veteran underwent an examination in December 2017, but the claim was denied due to a failure to find any applicable diagnosis of a current disorder.  Whether the Veteran is required to report to an updated in-person VA examination is left to the discretion of the Regional Office; however, if the examiner should still conclude that the Veteran has no diagnosable disorder of either ankle, then such a negative conclusion must be specifically reconciled with Saunders and the Veteran's lay statements about the history of her ankle pain, including but not limited to statements given in the December 2017 examination report.

A rationale should be provided for all opinions offered. If it is not possible to provide a specific opinion regarding the above questions, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training).

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The medical opinion must support the conclusions reached with an analysis that is adequate for the Board to consider and weigh against other evidence of record; medical opinions must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. If an opinion cannot be expressed without resort to speculation, ensure that the clinician so indicates and discusses why an opinion is not possible, to include whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge.

 

 

K. MARENNA

Acting Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	Michael B. Engle, 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.