Citation Nr: 21075941 Decision Date: 12/21/21 Archive Date: 12/21/21 DOCKET NO. 18-28 465 DATE: December 21, 2021 REMANDED Entitlement to service connection for a right knee disability is remanded. REASONS FOR REMAND The appellant is a Veteran who served on active duty from February 1965 to December 1966 and from December 1974 to January 1978. This matter is before the Board of Veterans' Appeals (Board) on appeal of a May 2017 Department of Veterans Affairs (VA) rating decision. In December 2019 and June 2021, this matter was remanded for additional development. The appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). 38 U.S.C. § 7107(a)(2). A June 2021 Board decision reopened the claim for service connection for a right knee disability based in part on the Veteran's current complaints of pain supporting the current disability element. See Saunders v. Wilkie, 886 F.3d 1356, 1363-64 (Fed. Cir. 2018). The Board remand ordered development for a VA examination to determine the existence, nature, and likely etiology of the Veteran's claimed right knee disability, and identify any functional impairment due to pain. The examiner was to note the service treatment records documenting a right knee injury in service in 1976 and complaints of ongoing right knee pain following that injury. On October 2021 VA knee examination, the Veteran reported right knee pain and loss of function. He reported he had an MRI on his right knee sometime in the past which revealed a torn tendon. The examiner noted the Veteran did not have [a report of the MRI] and a copy was not in the record. The examiner indicated there was no evidence of a right knee disability (noting there was no current diagnosis of such). No diagnostic studies were conducted. The examination and opinion are inadequate for rating purposes, and thus not fully responsive to the Board's remand directives; corrective action is necessary. See Stegall v. West, 22 Vet. App. 268 (1998). Notably, under 38 U.S.C. §§ 1110, 1131, pain may of itself be considered a current disability in the absence of a diagnosis or underlying pathology, if it results in functional impairment of earning capacity. See Saunders, 886 F.3d at 1363-64. An addendum examination to confirm whether or not there is a chronic right knee disability, including both as established by clinical evaluation and diagnostic studies and based on pain resulting in functional impairment, and if such a disability is found, to ascertain its likely etiology (considering the entire record) is necessary. The matter is REMANDED for the following: 1. Ask the Veteran to identify all providers of evaluations and treatment he has received for the right knee disability, specifically including the provider of his reported right knee MRI (and to complete and submit a VA Form 21-4142 authorizing VA to secure for the record complete clinical records of all such private evaluations and treatment, including the report of the MRI he has mentioned). Secure for the record complete (all outstanding) clinical records of the evaluations and treatment from all providers identified. If any private records identified are not received pursuant to a VA request, the Veteran should be so notified, and advised that ultimately it is his responsibility to ensure that private medical records are received 2. When the development sought above is completed, arrange for the Veteran to be examined by an appropriate clinician (i.e., in orthopedics) to confirm existence, and determine the nature and etiology of any current right knee disability. The Veteran's claims file must be reviewed by the examiner, and any diagnostic studies indicated should be completed. The examiner should: (a) Identify (by diagnosis) each right knee disability entity found/or shown by the record during the pendency of the appeal. If a diagnosis of a chronic knee disability supported by underlying pathology is not found, specifically indicate whether the Veteran has right knee pain that results in functional impairment of earning capacity. [Note that pain resulting in functional impairment of earning capacity may of itself constitute a compensable disability.] (b) Identify the likely etiology for each right knee disability entity diagnosed. Specifically, is it at least as likely as not (a 50 percent or greater probability) that it began in (or is otherwise etiologically related to) the Veteran's military service, to include his reported injuries and clinically noted complaints therein. (c) If a diagnosed right knee disability found is determined to not be etiologically related to the Veteran's service, identify the etiology that is considered to be more likely (and explain why that is so). Include rationale with all opinions. If an opinion sought cannot be provided without resort to mere speculation, there must be a complete explanation why this is so. Indicate whether the inability to provide a more definitive opinion (without mere speculation) is the result of a need for additional information (if so, identify what further information is needed) or due to limitations in the current state of medical knowledge. GEORGE R. SENYK Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Naumovich, 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.