Citation Nr: 21009223 Decision Date: 02/19/21 Archive Date: 02/19/21 DOCKET NO. 13-30 879 DATE: February 19, 2021 REMANDED Entitlement to service connection for a back disability 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 1987 to December 1991, and again from October 1992 to October 1995, with subsequent service in the reserves through September 2012. This case comes before the Board of Veterans’ Appeals (Board) on appeal from a March 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. In October 2015, the Veteran testified before the undersigned Veterans Law Judge (VLJ) in a videoconference hearing. A transcript of the hearing is included in the record. The Board notes the presence of a Privacy Act request dated February 18, 2020. VA responded to that request in a letter back to the requestor dated December 15, 2020, noting that the request has been fulfilled pursuant to Privacy Act procedures and the original request. The Board considers that original request to now be fully satisfied, and thus the Board will proceed in this decision. On September 29, 2020, the United States Court of Appeals for Veterans Claims (Court or CAVC) issued a Joint Motion for Partial Remand (JMPR) that remanded the issues of service connection for a back disability, service connection for a left knee disability, and service connection for a right knee disability all back to the Board for reconsideration consistent with the terms of the motion. See Forcier v. Nicholson, 19 Vet. App. 414, 425 (2006). Pursuant to the Court’s remand and Kutscherousky v. West, the Board issued a 90-day letter to the Veteran and his representative dated October 7, 2020 notifying them of their ability to submit additional evidence or argument in support of their appeal within 90 days. 12 Vet. App. 369 (1999) (per curiam); see 38 C.F.R. § 20.1304. The Veteran and his representative submitted no new evidence within the 90-day window. See Clark v. O’Rourke, 30 Vet. App. 92 (2018). The substance of the Court’s JMPR will be discussed further in the remand section below. In March 2016, the Board remanded the above issues for additional development. Based on the Court’s JMPR, the issues must again be remanded. D’Aries v. Peake, 22 Vet. App. 97, 105 (2008); Stegall v. West, 11 Vet. App. 268, 271 (1998). 1. Entitlement to service connection for a back disability is remanded. 2. Entitlement to service connection for a left knee disability is remanded. 3. Entitlement to service connection for a right knee disability is remanded. The Veteran is claiming service connection for his back and bilateral knees. He has testified before the undersigned VLJ and indicated in statements that his back and knee pain is chronic and goes back to active service. On September 29, 2020, CAVC issued a Joint Motion for Partial Remand which vacated the January 2019 Board decision that denied entitlement to service connection for service connection for a back disability, a left knee disability, and a right knee disability, and remanded to the Board for further consideration and development. No. 20-1032, 2020 U.S. App. Vet. Claims (Sept. 29, 2020) (unpublished). In its statement for the bases for remand back to the Board, the Court noted the June 2018 VA examination for which the Board relied for its decision denying service connection for a back disability was inadequate. The Court pointed out that the June 2018 VA examiner discussed some of the Veteran’s medical history, but that discussion ended with a September 1992 treatment note, and the examiner in question did not discuss any of the Veteran’s second period of active duty from October 1992 to October 1995. The Court called for a remand for an addendum opinion to address the second period of service. The Board also notes in its review of the case that the Veteran has further reserve service through September 2012, and calls upon the RO to seek any such medical records for that subsequent reserve service and to add them to the claims file. The Court also stated that the Board erred when it did not discuss whether the Veteran was entitled to service connection on continuity of symptoms basis. The Court noted previous diagnoses of degenerative arthritis of the Veteran, a chronic disease, of both the back and knees, and that the Veteran had testified to that description during his Board hearing of October 2015. Service connection may be established for a current disability on the basis of a presumption that certain chronic diseases, to include arthritis or degenerative disc disease, manifesting themselves to a certain degree within a certain time after service must have had their onset in service. 38 U.S.C. §§ 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309(a). For arthritis, the disease must have manifested to a degree of 10 percent or more within one year of service. 38 C.F.R. § 3.307(a)(3). Service connection for degenerative arthritis can also be established through continuity of symptomatology. Walker v. Shinseki, 708 F.3d 1331 (2013); 38 C.F.R. §§ 3.303(b), 3.309. For chronic diseases shown as such in service or within the applicable presumptive period, subsequent manifestations of the same chronic disease at any later date are service-connected unless attributable to an intercurrent cause. 38 C.F.R. § 3.303(b). For a chronic disease to be considered to have been “shown in service,” there must be a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings. Id. When the condition noted in service or within the presumptive period is not a chronic disease, a showing of continuity of symptomatology after discharge is required. Id. The Board also takes notice of the recent precedential Federal Circuit case, Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018), which held that pain alone may constitute a disability for VA compensation purposes when it results in “functional impairment of earning capacity.” Id. at 1368. 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.” In other words, where pain alone results in functional impairment, even if there is no identified underlying diagnosis, it can constitute a disability. VA is obligated to develop and consider all theories of entitlement that are raised by the record or by the claimant. See Robinson v. Mansfield, 21 Vet. App. 545 (2008). VA must examine the record with a view towards ascertaining whether the claimant or the evidence raises consideration of any theory of entitlement, regardless of specific disability claims. VA must provide an examination that is adequate for rating purposes. Barr v. Nicholson, 21 Vet. App. 303 (2007). Based on the Court’s September 2020 JMPR, the claim must remanded for a comprehensive examination and opinion to address all theories of entitlement for the Veteran’s service connection claims for his back and bilateral knees. The matters are REMANDED for the following action: 1. Make appropriate efforts to obtain and associate with the claims file any updated private or VA medical records identified and authorized for release by the Veteran, to include any records relating to the Veteran’s military service in the reserves through his separation in September 2012. 2. After the record search is complete, and any new records are added to the claims file, schedule a VA examination by a VA medical professional with the expertise necessary to address the nature and etiology of the Veteran’s claimed back and bilateral knee disabilities, to include all orthopedic and neurological manifestations. The claims file must be made available to and reviewed by the examiner. A note that it was reviewed should be included in the report. 3. Based on the review of the Veteran’s entire record, the examiner should provide an opinion as to the following: Whether it is at least as likely as not (probability of 50 percent or greater) that the Veteran’s claimed back, left knee, and/or right knee disabilities had their onset in service or are otherwise related any to any in-service disease, event, or injury? A detailed rationale supporting the examiner’s opinion should be provided. In forming the opinion, the examiner must consider all lay statements of record. If the examiner feels that the requested opinions cannot be rendered without resorting to speculation, the examiner must 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 the 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). Jones v Shinseki, 23 Vet. App. 382 (2010). When considering the evaluations, the examiner is to carefully consider all lay statements of record, VA treatment records, and private treatment records and evaluations. The examiner should view the Veteran as a reliable historian as to his service and his reports of his activities and symptoms in and since service. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Attention is invited to the Veteran’s reports and statements of chronic pain in his back and knees since active service. The Board takes notice of the recent precedential Federal Circuit case, Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018), which held that pain alone may constitute a disability for VA compensation purposes when it results in “functional impairment of earning capacity.” Id. at 1368. Attention is also invited to the Veteran’s service medical records for both periods of active military service, from April 1987 to December 1991, and again from October 1992 to October 1995 that the Court addressed and emphasized in its remand. In addition, the examiner should consider any additional periods of qualifying service identified in the records search for the Veteran’s reserve service through September 2012. 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. 4. Thereafter, readjudicate the issues on appeal. If the determination remains unfavorable to the Veteran, he and his representative should be furnished a supplemental statement of the case which addresses all evidence associated with the claims file since the last statement of the case. The Veteran and his representative should be afforded the applicable time period to respond. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369, 372 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans’ Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (2012). MICHAEL A. PAPPAS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Setter, 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.