Citation Nr: 21075424 Decision Date: 12/20/21 Archive Date: 12/20/21 DOCKET NO. 17-12 695 DATE: December 20, 2021 REMANDED The issue of service connection for a low back disability is remanded. The issue of service connection for a right ankle disability is remanded. The issue of service connection for a bilateral wrist disability is remanded. The issue of service connection for a left knee disability is remanded. REASONS FOR REMAND The Veteran served on active duty from June 2004 to July 2013. This matter comes before the Board of Veterans' Appeals (Board) from an August 2014 rating decision from a Department of Veterans Affairs (VA) regional office (RO). Although the statement of the case (SOC) issued in response to the Veteran's notice of disagreement (NOD) with the August 2014 rating decision addressed the additional issue of entitlement to an increased rating for the left ankle, the Veteran did not list this issue in his VA Form 9 when perfecting an appeal to the Board. Therefore, that issue is not before the Board. The Veteran requested a hearing before a Veterans' Law Judge (VLJ). In December 2020, the Veteran had a hearing before the undersigned VLJ. A copy of the transcript is part of the claims folder. 1. The issue of service connection for a low back disability is remanded. 2. The issue of service connection for a right ankle disability is remanded. 3. The issue of service connection for a bilateral wrist disability is remanded. 4. The issue of service connection for a left knee disability is remanded. The matters are REMANDED for the following action: 1. BACKGROUND FOR THE ADJUDICATOR: A remand is necessary because VA has not satisfied its duty to assist the Veteran. There are outstanding VA treatment records not associated with the claims folder. The Veteran indicated at his December 2020 hearing that he continues to see Dr. M. for his back at a VA medical facility. The most recent VA treatment records from Dr. M are from April 2017. All outstanding VA treatment records must be associated with the claims folder. Additionally, there may be outstanding treatment records from the VHA Choice program. In April 2017, the Veteran was approved for 60 sessions for physical therapy treatment of his low back pain through the VHA Choice program. No records of this treatment are in the record. All outstanding records of the Veteran's treatment through the VHA Choice program must be associated with the claims folder. There are outstanding private treatment records. The Veteran identified at his hearing that he receives treatment for his wrists from Dr. Bangkok (phonetic) at InterMed in South Portland, Maine. These records are relevant to the Veteran's claim and due efforts must be made to obtain them. Additionally, the VA has not provided the Veteran with an adequate examination. When considering whether a Veteran has a disability the examiner must not rely on whether there is a diagnosed condition but rather if there is a functional impairment. Saunders v. Wilkie, 886 F.3d 1356, 1363 (Fed. Cir. 2018). The May 2014 compensation and pension (C&P) examinations for the Veteran's back, wrists, left knee, and right ankle all neglect to provide adequate responses to the functional impact of repeated use over time and flare-ups. As the Veteran has reported that his symptoms get worse with use and flare at times, the functional impact of those instances should have been considered when determining if there was a current disability. Therefore, the Veteran must be provided new examinations. REMAND DIRECTIVES FOLLOW: 2. Obtain the Veteran's VA treatment records for the period from April 2017 to the present. 3. Obtain the Veteran's treatment records for services provided through the VHA Choice program, to include physical therapy authorized for back pain. 4. Ask the Veteran to complete a VA Form 21-4142 for Dr. Bangkok (phonetic) at InterMed in South Portland, Maine. Make two requests for the authorized records unless it is clear after the first request that a second request would be futile. 5. Schedule the Veteran for a VA examination by an appropriately qualified examiner for his low back disability. The examiner must review the claims file. All appropriate tests, studies and consultations must be accomplished, and all clinical findings must be reported in detail in the narrative portion of the examination report. THE EXAMINER MUST ATTEMPT TO ELICIT INFORMATION REGARDING THE SEVERITY, FREQUENCY, AND DURATION OF SYMPTOMS AFTER REPEATED USE OVER TIME AND DURING ANY FLARE-UPS. THE EXAMINER MUST PROVIDE AN ESTIMATE AS TO THE DEGREE OF FUNCTIONAL LOSS AFTER REPEATED USE OVER TIME AND DURING FLARE-UPS, UNLESS IT IS NOT POSSIBLE. If it is not possible to provide an estimate without speculation, 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). If a diagnosis cannot be provided but the Veteran's condition manifests in symptoms that cause functional impairment, then the examiner should consider them a "disability" for the purpose of providing the requested opinion below. The examiner is asked to provide an opinion as to whether the Veteran's low back disability is related to his active service, to include riding in a Humvee with full gear and performing sit-ups on concrete. The examiner must provide a statement to support the conclusions reached, addressing all relevant lay statements, medical evidence, and medical literature considered in reaching the conclusion. In providing the requested opinion, the examiner must consider the Veteran's lay statements. The examiner is advised that the Veteran's statements regarding events or injuries that occurred during his combat service shall be accepted. Regarding statements about post-service symptoms, if examiner does not accept the Veteran's statements, s/he shall state the medical reasoning used to reject the statement and provide an explanation as to whether the Veteran's reports about his symptoms align with how the currently diagnosed disability is known to develop. THE EXAMINER MUST REVIEW THE ENTIRE RECORD IN CONJUNCTION WITH RENDERING THE REQUESTED OPINION, INCLUDING: A December 2005 service treatment record noting two weeks of back pain. February 2011 service treatment records noting low back pain. An April 2011 service treatment record noting the use of Mobic and Tramadol for back pain. Statements at a May 2014 C&P examination that the Veteran experienced back pain after performing sit-ups in service, was told he had a pinched nerve in service, and that he now experiences persistent mild soreness aggravated by certain positions. A November 2014 treatment record noting chronic low back pain. An August 2014 treatment record noting an emergency department visit for a lumbar strain. An April 2017 treatment record noting low back pain with lumbar radiculopathy. Statements at the December 2020 Board hearing that the Veteran wore 60-100 pounds of equipment on missions in Iraq and would sit in a confined Humvee seat experiencing frequent bumps from potholes causing compression of his back. 6. Schedule the Veteran for a VA examination by an appropriately qualified examiner for his right ankle disability. The examiner must review the claims file. All appropriate tests, studies and consultations must be accomplished, and all clinical findings must be reported in detail in the narrative portion of the examination report. THE EXAMINER MUST ATTEMPT TO ELICIT INFORMATION REGARDING THE SEVERITY, FREQUENCY, AND DURATION OF SYMPTOMS AFTER REPEATED USE OVER TIME AND DURING ANY FLARE-UPS. THE EXAMINER MUST PROVIDE AN ESTIMATE AS TO THE DEGREE OF FUNCTIONAL LOSS AFTER REPEATED USE OVER TIME AND DURING FLARE-UPS, UNLESS IT IS NOT POSSIBLE. If it is not possible to provide an estimate without speculation, 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). If a diagnosis cannot be provided but the Veteran's condition manifests in symptoms that cause functional impairment, then the examiner should consider them a "disability" for the purpose of providing the requested opinions below. The examiner is asked to provide an opinion as to the following: (a.) Whether the Veteran's right ankle disability is related to his active service, to include rolling his ankle in service. (b.) Whether the Veteran's right ankle disability is proximate to (caused by) his service-connected left ankle disability, to include from bearing extra weight after a left ankle surgery. (c.) Whether the Veteran's right ankle disability is aggravated (worsened) by his service-connected left ankle disability, to include from bearing extra weight after a left ankle surgery. The examiner must provide a statement to support the conclusions reached, addressing all relevant lay statements, medical evidence, and medical literature considered in reaching the conclusion. In providing the requested opinion, the examiner must consider the Veteran's lay statements. The examiner is advised that the Veteran's statements regarding events or injuries that occurred during his combat service shall be accepted. Regarding statements about post-service symptoms, if examiner does not accept the Veteran's statements, s/he shall state the medical reasoning used to reject the statement and provide an explanation as to whether the Veteran's reports about his symptoms align with how the currently diagnosed disability is known to develop. THE EXAMINER MUST REVIEW THE ENTIRE RECORD IN CONJUNCTION WITH RENDERING THE REQUESTED OPINION, INCLUDING: An April 2011 service treatment record noting a right ankle sprain. A statement made at the May 2014 C&P examination that the Veteran experiences mild pain and swelling of the bilateral ankles after use. Statements made at the December 2020 Board hearing that the Veteran rolled his right ankle multiple times during service and that after having Brostrom surgery on his left ankle he had to put more weight on his right ankle. 7. Schedule the Veteran for a VA examination by an appropriately qualified examiner for his bilateral wrist disability. The examiner must review the claims file. All appropriate tests, studies and consultations must be accomplished, and all clinical findings must be reported in detail in the narrative portion of the examination report. THE EXAMINER MUST ATTEMPT TO ELICIT INFORMATION REGARDING THE SEVERITY, FREQUENCY, AND DURATION OF SYMPTOMS AFTER REPEATED USE OVER TIME AND DURING ANY FLARE-UPS TO FORM AN OPINION AS TO FUNCTIONAL LOSS. If it is not possible to provide an estimate without speculation, 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). If a diagnosis cannot be provided but the Veteran's condition manifests in symptoms that cause functional impairment, then the examiner should consider them a "disability" for the purpose of providing the requested opinion below. The examiner is asked to provide an opinion as to whether the Veteran's bilateral wrist disability is related to his active service, to include from the barrel of a M250 landing on his wrists and repetitive motion from pushups and using hand tools. The examiner must provide a statement to support the conclusions reached, addressing all relevant lay statements, medical evidence, and medical literature considered in reaching the conclusion. In providing the requested opinion, the examiner must consider the Veteran's lay statements. The examiner is advised that the Veteran's statements regarding events or injuries that occurred during his combat service shall be accepted. Regarding statements about post-service symptoms, if examiner does not accept the Veteran's statements, s/he shall state the medical reasoning used to reject the statement and provide an explanation as to whether the Veteran's reports about his symptoms align with how the currently diagnosed disability is known to develop. THE EXAMINER MUST REVIEW THE ENTIRE RECORD IN CONJUNCTION WITH RENDERING THE REQUESTED OPINION, INCLUDING: A June 2013 service treatment record noting joint pain in both wrists. Statements made at a May 2014 C&P examination that the Veteran experiences pain and popping in his wrists and that pain started in service when doing pushups and using hand tools. Statements made at the December 2020 Board hearing that the barrel of a M250 fell on his wrists while loading a Humvee for a mission in Iraq. 8. Schedule the Veteran for a VA examination by an appropriately qualified examiner for his left knee disability. The examiner must review the claims file. All appropriate tests, studies and consultations must be accomplished, and all clinical findings must be reported in detail in the narrative portion of the examination report. THE EXAMINER MUST ATTEMPT TO ELICIT INFORMATION REGARDING THE SEVERITY, FREQUENCY, AND DURATION OF SYMPTOMS AFTER REPEATED USE OVER TIME AND DURING ANY FLARE-UPS. THE EXAMINER MUST PROVIDE AN ESTIMATE AS TO THE DEGREE OF FUNCTIONAL LOSS AFTER REPEATED USE OVER TIME AND DURING FLARE-UPS, UNLESS IT IS NOT POSSIBLE. If it is not possible to provide an estimate without speculation, 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). If a diagnosis cannot be provided but the Veteran's condition manifests in symptoms that cause functional impairment, then the examiner should consider them a "disability" for the purpose of providing the requested opinion below. The examiner is asked to provide an opinion as to whether the Veteran's left knee disability is related to his active service, to include runner's knee and patellofemoral syndrome documented in service treatment records. The examiner must provide a statement to support the conclusions reached, addressing all relevant lay statements, medical evidence, and medical literature considered in reaching the conclusion. In providing the requested opinion, the examiner must consider the Veteran's lay statements. The examiner is advised that the Veteran's statements regarding events or injuries that occurred during his combat service shall be accepted. Regarding statements about post-service symptoms, if examiner does not accept the Veteran's statements, s/he shall state the medical reasoning used to reject the statement and provide an explanation as to whether the Veteran's reports about his symptoms align with how the currently diagnosed disability is known to develop. THE EXAMINER MUST REVIEW THE ENTIRE RECORD IN CONJUNCTION WITH RENDERING THE REQUESTED OPINION, INCLUDING: A May 2006 service treatment record that notes two weeks of left knee pain that worsens after running. A May 2006 service treatment record that diagnoses the Veteran with patellofemoral syndrome. A May 2006 service treatment record that contains a physical profile for left knee pain. An August 2008 pre-deployment examination noting occasional runner's knee. A June 2013 service treatment record noting joint pain in both knees. A statement made at a May 2014 C&P examination that his knee pain had its onset during physical training and running. A statement made at the December 2020 Board Hearing that he was diagnosed with runner's knee on multiple occasions in service. (CONTINUED ON THE NEXT PAGE) 9. Thereafter, readjudicate the issues on appeal. If a determination remains unfavorable to the Veteran, he and his representative should be furnished a supplemental statement of the case which addresses all evidence associated with the claims file since the last statement of the case. The Veteran and his representative should be afforded the applicable time period in which to respond. Vito A. Clementi Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Reed, Counsel The Board's decision is only binding on this case. This action is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.