Citation Nr: 21011844 Decision Date: 03/02/21 Archive Date: 03/02/21 DOCKET NO. 14-02 685 DATE: March 2, 2021 REMANDED Entitlement to service connection for a right lower extremity disability (claimed as restless leg syndrome) is remanded. REASONS FOR REMAND The Veteran served active duty in the United States Army from January 1991 to July 1991; and from January 2003 to December 2003; and then from January 2007 to May 2008. During this time, he was awarded the National Defense Service Medal, the Army Achievement Medal, the Global War on Terrorism Medal, and the Army Commendation Medal, among other awards. This matter was previously before the Board and remanded in June 2015, October 2018 and February 2020. As part of the Board’s February 2020 remand directives, the AOJ was instructed to ask a medical professional to provide an opinion on the nature and etiology of any right lower extremity disability identified. The appeal has returned to the Board for further appellate consideration. 1. Entitlement to service connection for a right lower extremity disability (claimed as restless leg syndrome) is remanded. The Board regrets further delay on this matter but finds that additional development is required before adjudication of the issue on appeal. The Veteran contends that he has a right lower extremity disability that is related to service to include as secondary to service-connected knee and /back disabilities. Complying with the Board’s February 2020 remand directives, a medical opinion was sought regarding the Veteran’s claimed disability. The July 2020 examiner opined that there is no right lower extremity radiculopathy identified on the 2015 and 2019 DBQs. The examiner stated that subjective symptoms were reported in the 2019 DBQ only but that no objective findings support a right lower extremity disability diagnosis. Therefore, it is less likely than not that the Veteran has a right lower extremity neuropathy/radiculopathy. See July 2020 C&P Examination. An updated medical opinion was provided in September 2020. The examiner stated that there is no evidence of a right lower extremity injury/condition in service or proximate to service. The examiner continued that the 2015 knee DBQ had no right knee complaints and no physical findings and the 2019 DBQ, addressing the right knee, was also negative for objective findings and a knee diagnosis. The examiner noted that the 2019 examination reported pain on motion that did not affect function. The examiner concluded that if the right lower extremity radiculopathy is conceded, it is clearly related to the Veteran's back conditions, and does not represent a knee condition. See September 2020 C&P Examination. The Board finds the above medical opinions inadequate for adjudicative purposes. The Board notes that throughout the pendency of this claim, the Veteran has complained of pain/ numbness in his right leg. See July 2019 C&P Examination. See also CAPRI. The Court has ruled that pain alone, if it causes functional impairment, can be a disability for VA purposes. See Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018). The Board also observes that a July 2015 VA Peripheral Nerves Conditions Disability Benefits Questionnaire noted a mild incomplete paralysis of the posterior tibial nerve in the right lower extremity. See July 2015 C&P Examination. The Board however finds that the both the July and September 2020 medical opinions did not address the validity of this prior finding of a right lower extremity disability. Importantly, service connection may be granted for a disability shown and resolved during the appeal period. See McClain, 21 Vet. App. at 321 (holding that the “current disability” requirement is “satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim” and reversing the Board's denial of service connection where disability resolved itself during pendency of appeal). In addition, the Veteran’s representative has contended that the claimed right lower extremity disability may stem from the Veteran’s back disability (of which the last examination was almost six (6) years ago) but that the VA has only provided knee examinations in relation to the claimed issue. The determination of a current disability is a crux of a service connection claim. Thus, based on the foregoing, a remand is warranted to provide an appropriately contemporaneous medical examination, identifying any claimed right lower extremity disability and its etiology. The matters are REMANDED for the following action: 1. Obtain all outstanding VA and private medical records and associate them with the claims file. 2. Schedule the Veteran for an appropriate VA examination to determine the nature and etiology of any right lower extremity disability. The examiner should be notified that pain alone can be considered a disability if it causes functional loss. The examiner must opine on: (a) whether it is at least as likely as not (50 percent or greater probability) that any right lower extremity disability is related to service. (b) whether it is at least as likely as not that his service-connected knee and or back disabilities caused OR aggravated any right lower extremity disability. (c) To the extent that the examiner concludes that the Veteran has not had any right lower extremity disability during or approximate to this appeal, the examiner must explain his/her conclusion and address in particular why the findings of a mild incomplete paralysis of the posterior tibial nerve in the right lower extremity as noted in the July 2015 Peripheral Nerves Conditions DBQ is incorrect/invalid or otherwise not supported. A complete rationale requires consideration of the lay assertions and the medical evidence of record. 3. After completing the requested actions and any additional notification and/or development deemed warranted, the AOJ should readjudicate the issue of service connection for right lower extremity disability. If the benefit sought on appeal is not granted, the Veteran and his representative must be furnished a supplemental statement of the case (SSOC) and afforded the appropriate time period to respond. DAVID L. WIGHT Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board N. M. Rogers, 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.