Citation Nr: A21020376 Decision Date: 12/22/21 Archive Date: 12/21/21 DOCKET NO. 200624-94896 DATE: December 22, 2021 ISSUES 1. Entitlement to service connection for a left foot disability. 2. Entitlement to service connection for a left knee disability. 3. Entitlement to service connection for a left ankle disability. 4. Entitlement to service connection for a back disability. REMANDED Entitlement to service connection for a left foot disability is remanded. Entitlement to service connection for a left knee disability is remanded. Entitlement to service connection for a left ankle disability is remanded. Entitlement to service connection for a back disability is remanded. REASONS FOR REMAND The Veteran served on active duty in the Marine Corps from February 1966 to August 1972. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2019 rating decision, issued by a Department of Veterans Affairs (VA) Regional Office (RO) which denied entitlement to the benefits currently sought on appeal. This 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). On August 23, 2017, the President signed into law the Veterans Appeals Improvement and Modernization Act, Pub. L. No. 115-55 (to be codified as amended in scattered sections of 38 U.S.C.), 131 Stat. 1105 (2017), also known as the Appeals Modernization Act (AMA). This law creates a new framework for Veterans dissatisfied with VA's decision on their claim to seek review. This decision has been written consistent with the new AMA framework. By way of background, the Veteran's claim for entitlement to service connection for a left ankle disability was denied in a rating decision from February 2003. The Veteran did not immediately appeal that decision, and it became final. The Veteran then filed claims for entitlement to service connection for each of the above-listed issues in June 2019. The Veteran's claims for entitlement to service connection for back, left knee and left foot disabilities were denied in a rating decision from July 2019, while an August 2019 rating decision denied that new and relevant evidence had been received to reopen the previously denied left ankle claim. The Veteran then filed a VA Form 20-0996 Request for Higher-Level Review in September 2019. 38 C.F.R. § 19.2(d). Each of those claims was again denied in an October 2019 rating decision. That same rating decision determined that new and relevant evidence had been received to reopen the previously denied claims, despite the left ankle claim being the only claim that was previously finally decided. The Veteran filed a timely VA Form 10182 Notice of Disagreement (NOD) in June 2020, and he selected the Hearing Board Review Option. The Veteran appeared before the undersigned Veterans Law Judge in a Travel Board hearing in September 2021 to present testimony on the issues on appeal. A transcript of the hearing has been associated with the Veteran's claims file. As noted above, the claims related to the left knee, left foot and back were not finally decided, and as such, the Board need not adjudicate whether or not new and relevant evidence has been received. The new and material evidence issue regarding entitlement to service connection for a left ankle disability has been recharacterized to reflect the new evidentiary standard under the AMA. Pub. L. No. 115-55, § 5108, 131 Stat. 1105, 1109. In the October 2019 decision, the RO determined that new and relevant evidence was received to warrant readjudicating the claims for entitlement to service connection for the left ankle disability. The Board is bound by these favorable findings. AMA, Pub. L. No. 115-55, § 5104A, 131 Stat. 1105, 1106-07. As such, the Board need not adjudicate the reopening of the claims again and may proceed to the merits of the service connection claims. As an aside, in a separate VA Form 10182 NOD, submitted in January 2021, the Veteran appealed a rating decision from December 2020 that denied entitlement to service connection for right knee pain, right foot pain, right foot fracture, right ankle pain, and pes planus. The Veteran again requested a Hearing before a Veterans Law Judge which has not yet taken place. These claims have therefore been docketed under a separate AMA appeals stream and are not currently before the Board. Finally, the Board acknowledges the receipt of the Veteran's private medical records, received by VA between October and November 2020. However, the evidence is ineligible for review by the Board, as it was submitted after the October 2019 rating decision, and not within 90 days following the Board hearing. 1. Entitlement to service connection for a left foot disability; and service connection for a left ankle disability are each remanded. The Veteran has claimed that he has left foot and left ankle disabilities, and that each are due to his active-duty service. To establish an entitlement to service connection, the Veteran must establish (1) the existence of a present disability, (2) an in-service occurrence or aggravation of a disease or injury, and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. 38 C.F.R. § § 3.303(a). VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. 38 U.S.C. § 1154 (a). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The Veteran testified before the undersigned in a Board hearing in September 2021. During the hearing, the Veteran testified that he experiences pain and weakness in his left foot and left ankle, that they are "giving him [mobility] problems," and that they were sprained during a basketball injury in December 1968. The Veteran testified that although there was pain, he did not report all of it because as a young marine, we "think we can break through a wall." He also testified that he had a football injury in September 1969, despite having an injured left foot and ankle. The Veteran stated that he experiences pain and that he has "arthritis" which he takes medication for. He also testified that his foot and ankle pain may be due to the wear and tear of his military occupational specialty (MOS), where he was jumping out of "helicopters and vehicles." The Veteran is competent to report the symptoms he experiences, such as those associated with his left foot and left ankle. See Jandreau v. Nicholson, 492 F. 3d 1372, 1376-77 (Fed. Cir. 2007). To begin, the Veteran was issued an AMA rating decision by the RO in October 2019. The AMA rating decision made a number of favorable findings, including that the Veteran had a basketball injury in December 1968 and a football injury in September 1969. The Board is bound by these favorable finding. AMA, Pub. L. No. 115-55, § 5104A, 131 Stat. 1105, 1106-07. Thus, as the Board is bound by the favorable findings of the RO, and the RO has already determined that in-service injuries have occurred for both the left foot and left ankle, the second criteria for entitlement to service connection have been met. 38 C.F.R. § 3.303. Despite the Veteran's complaints of pain and weakness related to his left foot and left ankle, the RO previously denied the Veteran's claims as he did not have evidence of current disabilities. These findings are counter to the recent holding in Saunders. In Saunders v. Wilkie, the Federal Circuit found 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." The case reversed years of precedent that had held that "pain alone is not a disability for the purposes of VA disability compensation." Sanchez-Benitez v. West, 13 Vet. App. 282 (1999). In other words, where pain alone results in functional impairment, even if there is no identified underlying diagnosis, it can constitute a disability. See Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018). Furthermore, the Veteran has not been given a VA examination to confirm those claimed diagnoses, nor has an etiological opinion been provided. VA's duty to assist includes, when necessary, conducting a thorough and comprehensive medical examination. Under 38 U.S.C. § 5103A (d)(2), VA must provide a medical examination and, or, obtain a medical opinion, when there is: (1) competent evidence that the Veteran has a current disability (or persistent or recurrent symptoms of a disability); (2) evidence establishing that he suffered an event, injury or disease in service or has a disease or symptoms of a disease within a specified presumptive period; (3) an indication the current disability or symptoms may be associated with service; and (4) there is not sufficient medical evidence to make a decision. See McLendon v. Nicholson, 20 Vet. App. 79 (2006) (discussing circumstances under which a VA examination is required). The third element, which requires that the evidence of record "indicate" that the claimed disability or symptoms "may be" associated with the established event, is a low threshold. Id. at 83. One of the effects of the AMA is to narrow the set of circumstances in which the Board must remand appeals to the AOJ for further development instead of immediately remanding them directly. Nevertheless, even under the AMA the Board still has the duty to remand issues when necessary to correct a pre-decisional duty to assist error. See Pub L. No. 115-55 section (2)(d); 38 C.F.R. § 20.802 (a). Because the Veteran has not been afforded a VA examination for his claimed diagnoses related to the left foot and left ankle, the Board finds that a Duty to Assist error has occurred. 38 C.F.R. § 20.802 (a). Therefore, a remand is necessary to ensure that there is a complete record upon which to decide the Veteran's claim for an entitlement to service connection so that he is afforded every possible consideration. 38 U.S.C. § 5103 (A); 38 C.F.R. § 3.159. 2. Entitlement to service connection for a left knee disability; and service connection for a back disability is remanded. The Board incorporates its discussion from the sections above by reference. The Veteran has claimed that he has a left knee disability and a back disability, and that each are due to his active-duty service. To begin, the Veteran was issued an AMA rating decision by the RO in October 2019. The AMA rating decision made a number of favorable findings, including that the Veteran has current back and left knee disabilities. The Veteran underwent back surgery in January 2019 and left knee replacement surgery in June 2018. The Board is bound by these favorable finding. AMA, Pub. L. No. 115-55, § 5104A, 131 Stat. 1105, 1106-07. Thus, as the Board is bound by the favorable findings of the RO, and the RO has already determined that the Veteran has current disabilities for his left knee and his back, the first criteria for entitlement to service connection have been met for each claim. 38 C.F.R. § 3.303. Turning to the second criteria, as noted above, the Veteran was given a Board hearing before the undersigned in September 2021. During the hearing, the Veteran testified that he believes his back disability and knee disability may also be due to those same basketball and football injuries that occurred while the Veteran was in service. He also testified that his MOS may have caused his current knee and back problems, as he frequently had to move heavy boxes, and had to jump out of helicopters and vehicles. He admitted to not going to sick bay for these injuries because as a young man in the marines, "you used to think you were King Kong," and that he could not be hurt. He testified that these injuries may have caused him to "a couple of times ... strain my back over the years." Despite these claims, the Veteran has not been given a VA examination for an etiological opinion to be rendered. As noted in the preceding section however, even under the AMA the Board still has the duty to remand issues when necessary to correct a pre-decisional duty to assist error. See Pub L. No. 115-55 section (2)(d); 38 C.F.R. § 20.802 (a). Therefore, the Board finds that a Duty to Assist error has occurred, and the claim must be remanded so that the Veteran can be given a VA examination, and an etiological opinion can be rendered. See McLendon, Id.; 38 U.S.C. § 5103A (d)(2). The matters are REMANDED for the following action: 1. Schedule the Veteran for VA examinations (or telehealth interviews, reviews of the record, etc., if an in-person examinations are not feasible) by appropriate clinicians to determine the nature and etiology of the Veteran's back and knee disabilities, as well as his claimed left foot and left ankle disabilities. Multiple VA examinations should be scheduled as deemed necessary. The claims folder and this remand must be made available to the examiner for review, and the examination report must reflect that such a review was undertaken. After performing any/all necessary testing, the examiner should provide responses to the following questions: (a.) the examiner is to provide a diagnosis which accounts for the Veteran's present symptoms of his claimed left ankle and left foot disabilities. If a medical diagnosis cannot be given, the examiner must state whether the Veteran has any functional impairment, such as pain, or instability. Complete the "Functional Impact" section of the report. The examiner is also asked to confirm any/all diagnoses related to his back and left knee. Then, for any/all disabilities found, address: (b.) Is it at least as likely as not (50 percent or greater) that the Veteran's confirmed disabilities were caused by a disease or injury in service? **Please note new case law: pain alone, even without an underlying pathology or diagnosis, can constitute a disability under VA law where such pain results in functional impairment. Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018) (holding that a "disability" under 38 U.S.C. § 1110 refers to functional impairment of earning capacity; pain need not be diagnosed as connected to a current underlying condition to function as an impairment). The examiner is reminded that the Veteran has provided competent testimony, describing how he believes each of his disabilities is due to his active-duty service, to include his MOS, and/or the in-service basketball and football injuries, which have been confirmed. A detailed rationale for the opinions must be provided. The examiner is reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as against it. If the examiner is unable to offer the requested opinion, it is essential that the examiner offer a rationale for the conclusion that an opinion could not be provided without resort to speculation, together with a statement as to whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. See Jones v. Shinseki, 23 Vet. App. 382 (2010). (Continued on next page.) 2. Thereafter, readjudicate the issues on appeal as noted above. Michael A. Pappas Veterans Law Judge Board of Veterans' Appeals Attorney for the Board G. Mulrain, 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.