Citation Nr: 21077377 Decision Date: 12/29/21 Archive Date: 12/29/21 DOCKET NO. 15-02 355 DATE: December 29, 2021 REMANDED Entitlement to service connection for a right hip disability is remanded. Entitlement to service connection for a left hip disability is remanded. Entitlement to service connection for groin strain is remanded. Entitlement to service connection for a left knee disability is remanded. Entitlement to service connection for a right knee disability is remanded. REASONS FOR REMAND The Veteran served on active duty from April 1998 to April 2001. The Veteran appeals a November 2011 rating decision by the Agency of Original Jurisdiction (AOJ). Most recently, in January 2021, the Board of Veterans' Appeals (Board) remanded the Veteran's claims to the AOJ for further action consistent with the Board's remand directives. As such, the case has returned to the Board for further appellate proceedings. However, as explained below, the Board finds that another remand is necessary in order to provide the Veteran with an adequate examination and to comply with the Board's prior remand directives. A Board hearing was held in June 2017. A transcript is of record. In a November 2021 letter, the Board informed the Veteran that the June 2017 hearing judge was no longer with the Board and offered the Veteran a new Board hearing. The Veteran has not responded or otherwise elected to have a subsequent Board hearing. Thus, the matter is ripe for adjudication. The Board notes that after the August 2021 supplemental statement of the case (SSOC), the Veteran filed a November 2021 VA Form 20-0996 as to his claims for groin strain and bilateral knee disabilities. The form could potentially allow the Veteran to opt these issues to be reviewed under the Appeals Modernization Act (AMA) system. However, the Veteran did not check the SOC/SSOC OPT-IN box, and he did not submit a clear statement formally withdrawing the issues on appeal under the Legacy system. Notably, the Veteran identified the June 2018 Board remand as the decision he wished to appeal. Moreover, the form was not submitted withing 60 days of the SSOC. Accordingly, the Board will proceed with this appeal under the current Legacy system. In January 2021, the Board remanded the Veteran's claims for new examinations to address the Veteran's claimed disabilities in light of the finding in Saunders. Specifically, as pain alone can constitute a disability if it causes functional impairment, a remand was necessary as the prior VA examiner based the negative nexus opinions on lack of diagnoses for the Veteran's claimed disabilities. See Saunders v. Wilkie, 886 F.3d 1356, 1365-68 (2018). As a result, the Veteran attended VA examinations in August 2021 for his claimed groin strain, bilateral hip, and bilateral knee disabilities. Once again, the August 2021 VA examiner found that the Veteran did not have diagnoses for said disabilities. See August 2021 VA examination reports. Consequently, the August 2021 VA examiner provided negative nexus opinions. Id. Notably, the Veteran described significant hip and knee pain during flare-ups which was noted by the examiner. The Veteran went so far as to describe how said hip and knee pain affects his performance at work. See August 2021 VA examination reports. The Board finds that such a description is sufficient to rise to the level of a functional impairment of earning capacity as contemplated in Saunders. Given that the August 2021 VA examiner did not consider these statements by the Veteran regarding pain and functional impairment when forming their opinion, the Board finds that remand is warranted. Moreover, the January 2021 Board remand specifically directed the examiner to "consider the Veteran's lay statements regarding pain and functional impairment, as well as the buddy statements submitted in 2011 and 2016 regarding symptoms after service." See January 2021 Board remand directives. (emphasis added). However, the August 2021 VA examiner's opinion is silent as to these statements from the Veteran's friends and family members. The relevant statements include January 2016 statements from the Veteran's mother, D.T., and aunt, C.W., and June 2011 statements from the Veteran's wife, T.S., and his friends, S.T. and B.B. As the August 2021 VA examiner did not follow the Board's prior remand directives, remand is warranted. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure substantial compliance). Thus, remand is required for an examination that complies with the previous remand instructions. The matters are REMANDED for the following action: 1. Obtain any outstanding VA and/or private treatment records relevant to treatment the Veteran received for his claimed groin strain, bilateral hip, and bilateral knee disabilities that are not already of record. All obtained records should be associated with the evidentiary record. If any identified records are not obtainable (or none exist), the Veteran and his representative should be notified, and the record clearly documented. 2. After the above development is completed, schedule the Veteran for an examination with an appropriately qualified clinician to determine the nature and etiology of the Veteran's claimed groin strain, bilateral hip, and bilateral knee disabilities. The evidentiary record, including a copy of this remand, must be made available and reviewed by the examiner. The opinion should include a notation that this record review took place. The examiner is asked to respond to the following: Is it at least as likely as not that the Veteran's groin strain, hip, and/or knee disabilities were incurred in, or are otherwise related to, his time on active service, to include the injuries and complaints documented in the Veteran's service treatment records? The examiner is to specifically consider the Veteran's lay statements regarding pain and functional impairment, as well as the statements from friends and family submitted in 2011 and 2016 regarding symptoms after service. The examiner is to carefully consider the Veteran's statements of groin, hip, and knee pain and other symptoms in light of the precedential finding of Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018), which held that pain alone can potentially serve as a functional impairment and therefore qualify as a disability. In rendering these opinions, the examiner is advised that the Veteran is competent to report his symptoms and history. Such reports must be acknowledged and considered in formulating any opinion. If the examiner rejects the Veteran's reports, he or she must provide an explanation for such rejection. The examiner is not to improperly discount the Veteran's lay statements or mistakenly rely on an absence of medical evidence in the record to support his or her conclusions. The complete rationale for all opinions should be set forth and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. If an opinion cannot be provided without resorting to mere speculation, the examiner must provide a complete explanation for why an opinion cannot be rendered. In so doing, the examiner must explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question. 3. After the above has been completed to the extent possible, readjudicate the claim. If any benefit sought remains denied, provide the Veteran and his representative with a supplemental statement of the case (SSOC), and return the case to the Board. DONNIE R. HACHEY Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Katie Poe, 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.