Citation Nr: 21077385 Decision Date: 12/29/21 Archive Date: 12/29/21 DOCKET NO. 19-16 817 DATE: December 29, 2021 REMANDED Entitlement to service connection for a right knee condition, to include degenerative joint disease (DJD) and patellofemoral pain syndrome, is remanded. Entitlement to service connection for a left knee condition, to include patellofemoral pain syndrome, is remanded. Entitlement to service connection for a back condition, to include intervertebral disc syndrome (IVDS), degenerative disc disease (DDD), DJD, and degenerative scoliosis, is remanded. REASONS FOR REMAND The Veteran served on active duty from October 1996 to June 2000. This case comes before the Board of Veterans' Appeals (Board) on appeal of a February 2018 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veterans Law Judge (VLJ) via video conference in a May 2020. In January 2018, the Veteran submitted a one-page medical record from Walter Reed National Military Medical Center (WRNMMC). In the Veteran's VA medical records, health care professionals referenced a neurosurgery and other care the Veteran received at WRNMMC for his back. However, VA is not in possession of the complete records from WRNMMC, and these records may reveal further treatment for the Veteran's knees. VA is on notice of their existence and has a duty to assist the Veteran in attempting to obtain them. 38 U.S.C. § 5103A (c); 38 C.F.R. § 3.159. Thus, all three issues must be remanded for further development. 1. Entitlement to service connection for right knee condition 2. Entitlement to service connection for left knee condition The Veteran was afforded a VA knee examination in March 2019. The examiner noted the examination was an in-person examination. The examiner found no diagnosis for the Veteran's left knee and noted degenerative arthritis and patellofemoral pain for the Veteran's right knee. The examiner rendered a negative nexus opinion. However, the examiner indicated that the Veteran's left knee had functional loss due to pain with repeated use over time. The Board notes that the United States Court of Appeals for the Federal Circuit (Federal Circuit) has stated that "'disability' in [38 U.S.C] § 1110 refers to the functional impairment of earning capacity." See Saunders v. Wilkie, 886 F.3d 1356, 1363 (2018). It was also stated in that case that "pain in the absence of a presently diagnosed condition can cause functional impairment." Id. at 1368. It was additionally stated in Saunders that "to establish a disability, the veteran's pain must amount to a functional impairment. To establish the presence of a disability, a veteran will need to show that the pain reaches the level of a functional impairment of earning capacity." Id. at 1367-68. Pain in a particular joint may result in functional loss, but only if it limited the ability to perform normal working movements of the body with normal excursion, strength, speed, coordination, or endurance. 38 C.F.R. § 4.40. In other words, where pain alone results in functional impairment, even if there is no identified underlying diagnosis, it can constitute a disability. Here, the March 2019 examiner made contradictory findings regarding the existence of a left knee disability. Thus, the Board finds a remand is warranted to afford the Veteran with a VA knee examination to address the Veteran's current left knee disabilities and its etiology. Additionally, on remand, a new examination and opinion for both knees considering the entirety of the record is required. McLendon v. Nicholson, 20 Vet. App. 79 (2006). 3. Entitlement to service connection for a back condition The Veteran was afforded a VA back examination in March 2019. The above-mentioned WRNMMC medical records were not part of the Veteran's file for the examination. On remand, a new examination and opinion considering the entirety of the record is required. McLendon, 20 Vet. App. at 83. The matters are REMANDED for the following action: 1. Make efforts to obtain all outstanding medical records from Walter Reed Medical Center from June 2000 to present, in accordance with 38 C.F.R. § 3.159. 2. After completing any needed preliminary development, forward the Veteran's claims file to a qualified medical professional for VA examinations to determine the nature and etiology of the Veteran's bilateral knee and back disabilities. The Veteran's entire record (including this remand) must be reviewed by the examiner. The examiner must provide opinions, with a full rationale, that respond to the following: a.) Identify all right knee disabilities, left knee disabilities, and back disabilities demonstrated during the appeal period or in proximity to the claim, even if currently resolved; b.) For any diagnosed right knee disability, provide an opinion as to whether it is at least as likely as not (at least an approximate balance of positive and negative evidence) that such diagnosis had its onset during, or is otherwise etiologically related to, the Veteran's active duty service, including the claimed repelling accident; and c.) For any diagnosed left knee disability, including any functional impairment of earning capacity (in the absence of a firm diagnosis), provide an opinion as to whether it is at least as likely as not (at least an approximate balance of positive and negative evidence) that such diagnosis had its onset during, or is otherwise etiologically related to, the Veteran's active duty service, including the claimed repelling accident; and d.) For any diagnosed back disability, provide an opinion as to whether it is at least as likely as not (at least an approximate balance of positive and negative evidence) that such diagnosis was its onset during, or is otherwise etiologically related to, the Veteran's active duty service, including the Veteran's claimed repelling accident. All opinions offered must be accompanied by a clear rationale consistent with the evidence of record. A. C. MACKENZIE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Hetman 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.