Citation Nr: 21074967 Decision Date: 12/16/21 Archive Date: 12/16/21 DOCKET NO. 19-30 548 DATE: December 16, 2021 REMANDED Entitlement to a bilateral knee disorder is remanded. Entitlement to a right lower extremity radiculopathy, to include as secondary to service connected cervical spine degenerative disc disease, is remanded. Entitlement to a left lower extremity radiculopathy, to include as secondary to service connected cervical spine degenerative disc disease, is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from February 1963 to August 1983. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a September 19, 2017 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veterans Law Judge on September 3, 2021, with his representative present. A transcript of the hearing has been produced and associated with the Veteran's claims file. This appeal is advanced on the Board's account on account of the Veteran's advanced age. 38 C.F.R. § 20.900(c). 38 U.S.C. § 7107(a)(2). 1. Entitlement to a bilateral knee disorder is remanded. 2. Entitlement to a right lower extremity radiculopathy, to include as secondary to service connected cervical spine degenerative disc disease, is remanded. 3. Entitlement to a left lower extremity radiculopathy, to include as secondary to service connected cervical spine degenerative disc disease, is remanded. An examination or opinion should be obtained when (1) there is evidence of a current disability, (2) evidence establishing an "in-service event, injury, or disease," or that a disease, manifested in accordance with presumptive service connection regulations, occurred which would support incurrence or aggravation, (3) an indication that the current disability may be related to the in-service event, and (4) insufficient evidence to decide the case. McClendon v. Nicholson, 20 Vet. App. 79 (2006). It appears uncontroverted that the Veteran's service treatment records contain notations of knee pain, notwithstanding his current allegations of diagnosed arthritis. The rating decision on appeal states that the claims were denied because there was no evidence of any current diagnoses, nor in-service occurrences that could be reasonably likely to serve as the etiology of a disorder entitled to service connection. See Rating Decision (Sept. 19, 2017), at Pages 4-6. However, this rating decision was promulgated both without a VA examination of record pertaining to the knees, see McLendon, supra, and also before binding precedent from a Federal court decision, Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018), which states that pain that causes functional impairment of earning capacity can constitute a disability for VA purposes. Notwithstanding service treatment records memorializing knee pain, the Veteran is competent to testify about subjective knee pain and the history of his. Meanwhile, the claims for radiculopathy of the bilateral lower extremities appear to be inextricably intertwined with the claim for knee pain. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). Under these circumstances, the Board determines that it is precluded from issuing a determination as to any of the issues on appeal. Instead, the claims must be completely remanded for a VA examination and etiological opinion. The matters are REMANDED for the following action: 1. The Veteran should be given the opportunity to identify any outstanding private or VA treatment records relevant to the claims on appeal. After obtaining any necessary authorization from the Veteran, all outstanding records should be obtained, to include updated VA treatment records. 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 his representative and afford him an opportunity to submit any copies in their possession. For federal records, all reasonable attempts should be made to obtain such records. 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. Following the receipt of outstanding records, schedule the Veteran with an appropriate clinician for a VA examination to determine the etiology of his claimed bilateral knee disorder, bilateral lower extremity radiculopathy disorder, and/or disorder therein manifesting in, or secondary to other service-connected, arthritis. The record, to include a copy of this Remand, must be made available to and be reviewed by the examiner. Any indicated evaluations, studies and tests should be conducted. The need for physical examination is left to the discretion of the examiner. Thereafter, the examiner is asked to furnish an opinion with respect to the following questions: (A) Is it at least as likely as not (50 percent or greater probability) that the Veteran's bilateral knee disorder had its onset during any period of service or is etiologically related to service, to include the physical activity and training during service? (B) Is it at least as likely as not (50 percent or greater probability) that the Veteran's bilateral lower extremity radiculopathy had its onset during any period of service or is etiologically related to service? (C) Is it at least as likely as not (50 percent or greater probability) that the Veteran's bilateral lower extremity radiculopathy is caused or aggravated by service connected cervical spine degenerative disc disease? For both of the above, the examiner should discuss the significance or lack thereof of the following: (i) The Veteran's general testimony about history of knee pain and numbness in service and continuing to the present from the September 3, 2021 hearing transcript and other statements, including but not limited to current diagnoses of arthritis; (ii) Complaints of back pain as memorialized in the service treatment records, including but not limited to as on April 23, 1968 and May 21, 1968. (iii) A medical treatment record from an emergency room dated August 17, 1981, noting "a short history of episodic left flank pain with radiation of the pain to the groin region" (iv) An April 15, 1983 notation confirming "slight pain in knees" A clear rationale for all opinions must be provided, and a discussion of the facts and medical principles involved would be of considerable assistance. If the examiner opines that any of the above questions cannot be resolved without resorting to speculation, then a detailed medical explanation as to why this is so must be provided. A rationale should be provided for any opinion 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). KRISTY L. ZADORA 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.