Citation Nr: 21009403 Decision Date: 02/22/21 Archive Date: 02/22/21 DOCKET NO. 16-46 911 DATE: February 22, 2021 REMANDED The issue of entitlement to service connection for a left knee disability is remanded. The issue of entitlement to service connection for a right knee disability is remanded. REASONS FOR REMAND The Veteran served on active duty from April 1992 to December 1994; from July 2000 to December 2000; from February 2003 to June 2003; and from December 2004 to December 2012. These matters come before the Board of Veterans’ Appeals (Board) on appeal of an October 2014 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In September 2019, the Board denied entitlement to service connection for a bilateral knee disability. The Veteran appealed the Board’s decision to the United States Court of Appeals for Veterans Claims (Court), and the Court granted an October 2020 Joint Motion for Remand (JMR), vacated the September 2019 Board decision and remanded the issue to the Board for readjudication. 1. Entitlement to service connection for a left knee disability is remanded. 2. Entitlement to service connection for a right knee disability is remanded. The parties to the October 2020 JMR agreed that the Board erred in its September 2019 decision by determining that the Veteran did not have a current bilateral knee disability. Specifically, the Board did not address a June 2014 VA examination that reflected the Veteran had functional limitation secondary to subjective pain and instability in his bilateral knees. Here, the Board finds the June 2014 VA examination is inadequate for decision-making purposes. The VA examiner determined that the Veteran does not have a current bilateral knee disability. However, the VA examiner noted that the Veteran had functional limitation secondary to subjective pain and instability in his bilateral knees. The Board notes that pain can be considered a disability where it causes functional impairment, even in the absence of an underlying diagnosis. Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018). Therefore, there is evidence of a current bilateral knee disability. The June 2014 VA examiner did not provide an opinion as to whether the Veteran’s bilateral knee disability is directly related to active service. As such, on remand, the Veteran must be provided a VA examination to determine whether the Veteran’s bilateral knee disability is directly related to his active service. The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination to determine the nature and etiology of any bilateral knee disability. Provide a copy of this remand and the record for the examiner to review. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner must address the following: (a.) Provide a diagnosis for each bilateral knee disability demonstrated since service, found on current examination or in the record. In providing the above diagnosis, the examiner must be mindful that pain alone may constitute a disability when it results in functional impairment of earning capacity. See Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018). (Continued on the next page)   (b.) Whether it is at least as likely as not (50 percent or greater probability) that any right bilateral knee disability is related to the Veteran’s active service to include the notations in his service treatment records reflecting complaints of bilateral knee strain in 2009. 2. After completion of the above, review the expanded record, including the evidence entered since the most recent statement of the case, and determine whether service connection for a bilateral knee disability may be granted. If any benefit sought remains denied, furnish the Veteran and his representative with a supplemental statement of the case. The appropriate period should be allowed for response before the appeal is returned to the Board. ANTHONY C. SCIRÉ, JR Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. G. LeMoine, 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.