Citation Nr: 21075371 Decision Date: 12/20/21 Archive Date: 12/20/21 DOCKET NO. 18-38 715A DATE: December 20, 2021 REMANDED Service connection for a left knee disability is remanded. Service connection for a low back disability is remanded. Service connection for a left foot disability, to include numbness, is remanded. Service connection for a right foot disability, to include numbness, is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from June 2006 until his honorable discharge in April 2015. His service included deployment to Iraq from April 2008 to August 2009, and to Afghanistan from April to December 2012. He received the Iraq Campaign Medal and Combat Action ribbon among many other accolades. He subsequently served on active duty in the U.S. Army Reserve in August 2015, November to December 2015, May 2018, and from May to August 2019 for purposes of active duty for training. This case comes before the Board of Veterans' Appeals (Board) on appeal from an August 2015 decision by a Regional Office of the United States Department of Veterans Affairs (VA). In August 2021, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. 1. Service connection for a left knee disability is remanded. 2. Service connection for a low back disability is remanded. 3. Service connection for a left foot disability, to include numbness, is remanded. 4. Service connection for a right foot disability, to include numbness, is remanded. The Veteran received VA-contracted examinations in February 2015 addressing the above-mentioned disabilities. During those respective examinations, the examiner did not diagnose the Veteran with any medical conditions. Nevertheless, the examiner did record that the Veteran reported that he had experienced knee pain, tingling in his heels, and numbness in his toes since 2006, each of which were exacerbated by prolonged standing and running. He also reported that he experienced low back pain since 2008 due to wearing heavy gear in service. He reported episodic pain with increased altitude and certain movements. Since those examinations, is appears the Veteran's claimed disabilities have worsened based on his testimony before the Board in August 2021. As to his low back, he testified that he has constant pain, that flare-ups occur when he is stationary or standing on his feet for a long period of time. The pain can be intense during a flare-up, to the point he is "frozen." As to his left knee, he testified that he experienced a stabbing pain during activity, including bending of the knee, climbing of stairs, standing for a prolonged time, running, and on weightbearing. He testified the pain extends from his knee into his leg. He also testified that he experienced instability when using stairs. As to his feet, he testified that he experienced severe pain when standing for a prolonged period of time, which is localized around the heels, but the pain also spreads to his leg and toes in his left foot. He testified a doctor diagnosed him with plantar fasciitis. In light of this testimony, the Board finds new VA examinations are required to address the current severity of the Veteran's claimed disabilities because the only examinations of record are over six years old. Moody v. Wilkie, 30 Vet. App. 329, 341 (2018) ("Generally speaking, VA must provide a new examination when . . . the available evidence is too old to adequately evaluate the current state of the condition."). In addition, the Board observes that following the Veteran's initial claim for service connection, he returned to active duty as part of the U.S. Army Reserve for purposes of active duty for training. There is no indication in the record that VA has sought any additional medical records, if they exist, associated with the Veteran's subsequent active duty for training. Thus, such development is necessary on remand to comply with VA's duty to assist. 38 U.S.C. § 5103(a); 38 C.F.R. § 3.159(c). Furthermore, the Veteran has identified seeing a podiatrist in association with his claims for service connection. Thus, VA must attempt to obtain any relevant medical records associated with that treatment if the Veteran provides sufficient identifying information. Id. Accordingly, the matters are REMANDED for the following actions: 1. Obtain any of the Veteran's outstanding VA medical records and associate them with the claims file. 2. Send appropriate correspondence to the Veteran asking him to identify and authorize release of any relevant private medical records, to include from his podiatrist. Reasonable attempts must be made to obtain relevant private medical records. 3. After any additional records are associated with the claims file, obtain new VA examinations from an appropriately qualified clinician to provide an opinion addressing the onset and etiology of the Veteran's claimed low back, left knee, and bilateral feet disabilities. The entire claims file must be made available to and be reviewed by the examiner, including a copy of this REMAND order. The examiner is asked to provide an opinion as to the following: (a.) Please identify whether the Veteran current has or has had a low back disability during the pendency of the claim, since approximately 2015. (b.) Please identify whether the Veteran current has or has had a left knee disability during the pendency of the claim, since approximately 2015. (c.) Please identify whether the Veteran current has or has had a right foot disability during the pendency of the claim, since approximately 2015. (d.) Please identify whether the Veteran current has or has had a left foot disability during the pendency of the claim, since approximately 2015. The examiner is informed that the requirement for a veteran to have a "current disability" is satisfied when he or she has a disability (1) at the time a claim for VA disability compensation is filed or (2) has a disability during the pendency of that claim. See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). The examiner is informed that pain resulting in functional impairment may constitute a disability, even without an identifiable underlying pathology. Saunders v. Wilkie, 886 F.3d 1356, 136768 (Fed. Cir. 2018). "Functional impairment" is defined as the inability of the body or a constituent part of it "to function under the ordinary conditions of daily life including employment." Id. at 1363 (quoting 38 C.F.R. § 4.10). In other words, pain alone can qualify as a disability where it diminishes the body's ability to function, even where it is not diagnosed as connected to a current underlying condition. Id. (e.) For each identified disability, whether it is at least as likely as not (50 percent probability or more) that such disability had its onset in or is otherwise etiologically related to an in-service event, injury, or disease. In rending his or her opinion, the examiner should consider and, if deemed relevant, address the following, in addition to any other relevant evidence: (a.) August 2014 Separation Examination and Report of Medical History indicating left knee pain and bilateral feet pain and numbness. (b.) January 2015 in-service spinal imaging noting mild lumbar curvature and an offset sacral base, right inferior. (c.) Statements made to the February 2015 VA-contracted examiner that the Veteran experienced an onset of knee and feet pain and numbness in 2006 that has continued, and an onset of back pain in 2008 that has continued. (d.) The Veteran's testimony at his August 2021 Board hearing that his knee, feet, and back pain developed in service due to the prolonged running, adverse terrain, and the weight of military gear he had to carry on a routine basis, which placed stress on his body. The examiner is reminded to consider the Veteran's lay statements regarding the nature and onset of his claimed disabilities, including any evidence concerning continuity of symptomatology, as he is legally permitted to report his symptoms, past medical history, and experiences. The examiner must not opine on the credibility of the Veteran. The examiner may, however, discuss whether there is any medical reason to accept or reject the Veteran's assertion of a disability in service or the assertion that an in-service event, injury, or illness led to any disability. See Kahana v. Shinseki, 24 Vet. App. 428, 437 (2011). A clear and detailed rationale for the opinion(s), including a discussion of the facts and medical principles involved, should be provided as it will be of considerable assistance to the Board. Please do not simply list the facts on which you relied. The examiner is informed that reliance on a lack of treatment and/or gap between discharge from military service and diagnosis of a disability, without explaining why such evidence is significant, is an insufficient rationale. The examiner is informed that the absence of contemporaneous service treatment records or medical records in general, standing alone, without explaining why such evidence is significant, is an insufficient rationale. It is not only the continuity of treatment that is relevant, but also the continuity of symptoms regardless of treatment. Wilson v. Derwinski, 2 Vet. App. 16, 19 (1991). If the examiner determines a disability was acute rather than chronic, the examiner should explain how he or she arrived at that conclusion rather than providing a conclusory opinion. For example, what evidence led to that conclusion, what would the examiner expect to see if a condition was chronic, how do the Veteran's lay statements, if any, affect the conclusion? If the examiner relies on medical treatises, the examiner should identify the treatises. If the examiner feels that a requested opinion cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e., no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e., additional facts are required, or the examiner does not have the needed knowledge or training). M. Tenner Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. F. Sawka, 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.