Citation Nr: 21077397 Decision Date: 12/29/21 Archive Date: 12/29/21 DOCKET NO. 17-55 927A DATE: December 29, 2021 REMANDED Entitlement to service connection for a right knee disability is remanded. Entitlement to service connection for a left knee disability is remanded. Entitlement to service connection for a back disability is remanded. Entitlement to service connection for a bilateral hearing loss disability is remanded. REASONS FOR REMAND The Veteran, who is the Appellant in this case, had active service in the U.S. Marine Corps from May 1998 to May 2002, with additional Reserve service from May 2002 to November 2005 and December 2005 to December 2006. This matter comes before the Board of Veterans' Appeals (BVA or Board) from a January 2017 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran provided testimony at an August 2021 hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the claims folder. 1. Entitlement to service connection for a right knee disability is remanded. 2. Entitlement to service connection for a left knee disability is remanded. The Veteran contends that his intense physical training during active service, which included carrying heavy equipment and wearing boots that did not provide much support, took a toll on his knees, and caused his current bilateral knee disorder. At the August 2021 Board hearing, he testified that he experiences knee pain when walking up and down stairs and when kneeling. The Veteran's claim has been denied due to a lack of a diagnosed disability. His service treatment records show that he reported bilateral knee pain for the past year at his March 2002 separation examination. At a January 2017 VA examination, the Veteran reported knee pain with kneeling, squatting, and prolonged sitting, and flare-ups with prolonged time on his feet or repetitively climbing stairs and ladders. However, despite the Veteran's description of his knee pain, the examiner indicated that the Veteran did not report any functional loss or functional impairment. In addition, after range of motion testing, the examiner indicated that the Veteran was unable to perform repetitive use testing with no explanation as to why he was unable to do so. Further, when asked to say whether pain, weakness, fatigability, or incoordination would significantly limit functional ability with repeated use over time or during flare-ups, the examiner stated they were unable to provide an opinion without mere speculation, stating that there were no clinical records describing further decreased functioning with repetitive use over time or during flare-ups. The Board finds that the January 2017 VA examination is inadequate. In Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018), the Federal Circuit held that the term "disability" as used in 38 U.S.C. § 1110 "refers to the functional impairment of earning capacity, not the underlying cause of said disability," and held that "pain alone can serve as a functional impairment and therefore qualify as a disability." Id. at 1363. In other words, where pain alone results in functional impairment, even if there is no identified underlying diagnosis, it can constitute a disability. In addition, In Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court held that before a VA examiner opines that he or she cannot offer an opinion as to additional functional loss during flare-ups without resorting to speculation based on the fact that the examination was not performed during a flare, the examiner must "elicit relevant information as to the veteran's flares or ask him to describe the additional functional loss, if any, he suffered during flares and then estimate the veteran's functional loss due to flares based on all the evidence of record, including the veteran's lay information, or explain why she could not do so." Id. Thus, in light of the Veteran's report of knee pain with various movements and episodes of flare-ups, the Board finds that a new VA examination and opinion is necessary to allow the examiner to provide an estimation of additional functional limitation during flare-ups and following repetitive use in compliance with Sharp and to address whether any residual functional impairment of the bilateral knees, in compliance with Saunders, is related to active service, to include overuse in physical training and the bilateral knee pain recorded at the March 2002 separation examination. 3. Entitlement to service connection for a back disability is remanded. The Veteran contends that his current back disability was caused by the same mechanism as his bilateral knee disability (intense physical training involving carrying heavy equipment). At an April 2018 VA back examination, the Veteran reported that his back pain began in late spring to summer of 2001 after extensive field training and full combat load/force marches, and that his back pain had continued since active service. The VA examiner opined that the current back disability, diagnosed as a lumbosacral strain, was not related to active service, reasoning that there was no medical record of treatment for low back pain during active service, including any recorded diagnoses of conditions that would make him more prone to back injuries in the future. However, at the August 2021 Board hearing, the Veteran testified that he did not seek medical treatment in service because others would have ridiculed him for complaining and accused him of trying to get out of training; when he felt pain during active service, he took over-the-counter medication without seeking treatment. Since the Veteran has offered an explanation as to why his service treatment records are silent for back complaints, the Board finds that a remand is necessary to obtain a new VA examination and opinion which takes his competent statements regarding the inception of back pain during active service into account. 4. Entitlement to service connection for a bilateral hearing loss disability is remanded. The Veteran's claim of entitlement to service connection for bilateral hearing loss has been denied because his test results have not met the criteria for a disability as defined by VA regulations. At the August 2021 Board hearing, the Veteran testified that his hearing may have worsened since his most recent audiological examination in 2017; specifically, he stated that he had to ask people to speak louder and had difficulty hearing people talking when there was background noise and on the telephone. In light of the Veteran's testimony at the Board hearing that his hearing loss may have worsened since he was last examined in 2017, the Board finds that a remand is necessary to obtain a new VA audiology examination to determine if he has a current hearing loss disability. Finally, relevant to all claimed disabilities, as noted above, the Veteran had Reserve service from May 2002 to November 2005, and from December 2005 to December 2006. An attempt should be made to obtain service treatment records from his Reserve service, as any such records may be relevant to his service connection claims. The matters are REMANDED for the following action: 1. Request and obtain any and all service treatment records from the Veteran's Reserve service from May 2002 to November 2005, and from December 2005 to December 2006. All attempts to procure the records should be documented in the file. If any records cannot be obtained, any negative responses should be associated with the claims file, and the Veteran should be notified of unsuccessful attempts to obtain the records, in order to allow the Veteran the opportunity to obtain and submit those records for review. 2. Afford the Veteran an opportunity to attend a VA examination with an appropriate specialist regarding the nature and etiology of his bilateral knee disabilities. Any and all indicated evaluations, studies, and tests deemed necessary by the examiner should be accomplished, and a rationale for any opinion expressed should be provided. The claims file, including a copy of this decision, must be made available to the examiner for review of the history in conjunction with the examination, and the examination report should reflect that such review was accomplished. (a.) The examiner should first identify any and all current bilateral knee disabilities, to include a description of any functional impairment of the knees. The examiner must document any functional impairment described by the Veteran, to include commentary on his statements at the January 2017 VA knee examination that he experiences knee pain with kneeling, squatting, and prolonged sitting, and flare-ups with prolonged time on his feet or repetitively climbing stairs and ladders. In assessing functional impairment of the knees, the examiner should state whether the examination is taking place during a period of flare-up or following repeated use over time. If not, the examiner should ask the Veteran to describe the flare-ups he experiences, including: frequency, duration, characteristics, precipitating and alleviating factors, severity and/or extent of functional impairment he experiences during a flare-up of his knee symptoms and/or after repeated use over time. Based on the Veteran's lay statements and the other evidence of record, the examiner should provide an opinion estimating any additional degrees of limited motion caused by functional loss during a flare-up or after repeated use over time. If the examiner cannot estimate the degrees of additional range of motion loss during flare-ups or after repetitive use without resorting to speculation, the examiner should 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 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). The examiner should note that the VA CLINICIAN'S GUIDE requires the examiner to estimate the range of motion "per [the] Veteran." See VA CLINICIAN'S GUIDE at Ch. 11. (b.) The examiner should offer the following opinion: Is it at least as likely as not (i.e., to at least a 50/50 degree of probability) that the Veteran's bilateral knee disability, to include any functional impairment, even if there is no underlying diagnosis, was incurred during or caused by active service? Again, the examiner must discuss and consider any functional impairment of the bilateral knees in rendering their opinion and must address the March and May 2002 separation examination reports documenting bilateral knee pain for the past year and the Veteran's statements regarding intense physical training that involved carrying heavy weights and wearing boots that offered little support. Note: The term "at least as likely as not" does not mean merely within the realm of medical possibility, but rather that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of causation as it is to find against it. All opinions are to be accompanied by a rationale consistent with the evidence of record. A discussion of the pertinent evidence, relevant medical treatises, and generally accepted medical principles is requested. If the examiner cannot provide an opinion without resorting to speculation, he or she shall provide complete explanations stating why this is so. In so doing, the examiner shall explain whether any 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. Afford the Veteran an opportunity to attend a VA examination with an appropriate specialist regarding the nature and etiology of his back disability. Any and all indicated evaluations, studies, and tests deemed necessary by the examiner should be accomplished, and a rationale for any opinion expressed should be provided. The claims file, including a copy of this decision, must be made available to the examiner for review of the history in conjunction with the examination, and the examination report should reflect that such review was accomplished. (a.) The examiner should offer the following opinion: Is it at least as likely as not (i.e., to at least a 50/50 degree of probability) that the Veteran's back disability was incurred during or caused by active service? The examiner must discuss and consider the Veteran's statements that his back pain began during active service after extensive field training and full combat load/force marches. The examiner is advised that the Veteran is competent to describe symptoms that are observable by a lay person, such as back pain. If the examiner rejects the Veteran's reports regarding his symptoms, the examiner must provide a reason for doing so. In addition, the examiner is advised that they must not rely solely on the absence of back problems in service in providing a negative nexus opinion. Note: The term "at least as likely as not" does not mean merely within the realm of medical possibility, but rather that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of causation as it is to find against it. All opinions are to be accompanied by a rationale consistent with the evidence of record. A discussion of the pertinent evidence, relevant medical treatises, and generally accepted medical principles is requested. If the examiner cannot provide an opinion without resorting to speculation, he or she shall provide complete explanations stating why this is so. In so doing, the examiner shall explain whether any 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. 4. Afford the Veteran the opportunity to attend a VA examination from an appropriate specialist to address the nature and etiology of the Veteran's bilateral hearing loss disability. Any and all indicated evaluations, studies, and tests deemed necessary by the examiner should be accomplished, and a rationale for any opinion expressed should be provided. The claims file must be made available to the examiner for review of the history in conjunction with the examination, and the examination report should reflect that such review was accomplished. (a.) The examiner should offer the following opinion: Is it at least as likely as not (i.e., to at least a 50/50 degree of probability) that the Veteran's bilateral hearing loss disability was incurred during or caused by active service? The examiner is advised that the Veteran is competent to describe symptoms that are observable by a lay person, such as noticing difficulty hearing. If the examiner rejects the Veteran's reports regarding his symptoms, the examiner must provide a reason for doing so. In addition, the examiner is advised that they must not rely solely on the absence of hearing loss in service in providing a negative nexus opinion. If any medical studies/reports are relied upon, the examiner must also explain why, in this particular case, the conceded in-service acoustic trauma did not contribute to the Veteran's current hearing loss disability. Note: The term "at least as likely as not" does not mean merely within the realm of medical possibility, but rather that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of causation as it is to find against it. All opinions are to be accompanied by a rationale consistent with the evidence of record. A discussion of the pertinent evidence, relevant medical treatises, and generally accepted medical principles is requested. If the examiner cannot provide an opinion without resorting to speculation, he or she shall provide complete explanations stating why this is so. In so doing, the examiner shall explain whether any 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. Cynthia M. Bruce Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Sherrard, 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.