Citation Nr: 21020845 Decision Date: 04/08/21 Archive Date: 04/08/21 DOCKET NO. 16-21 813 DATE: April 8, 2021 REMANDED Entitlement to service connection for a left knee disability to include as due to a low back disability is remanded. REASONS FOR REMAND The Veteran served in active duty service from December 2012 to December 2015 to include service in the National Guard with a period of ACTDUTRA from July to December 2011. This matter is on appeal from a March 2016 rating decision. The Board remanded this appeal in April 2020 for additional development. The Board notes that in the April 2020 Board decision the issues on appeal before the Board was entitlement to service connection for a right knee and a left knee disability. During the pendency of the appeal a November 2020 rating decision granted service connection for a right knee disability. As such, the issue on appeal remaining before the Board is entitlement to service connection for a left knee disability. The Board finds that remand is warranted for additional development. The Board notes that in Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018), 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. To establish the presence of a disability, the Veteran will need to show that his pain reaches the level of functional impairment. In other words, subjective pain in and of itself will not establish a current disability. Consideration should be given to the impact, or lack thereof, from pain, focusing on evidence of functional limitation caused by pain. In December 2015 the Veteran filed a claim for “left lower extremity pain secondary to back to include leg, ankle, and foot.” The Veteran is currently service connected for degenerative arthritis of the spine. Review of the Veteran’s service treatment records (STRs) show in July 2011 the Veteran reported bilateral knee pain for the past 3 days; the treating provider noted soft tissue knee pain above both knees and left knee tenderness on palpation of the anterior aspect. In a January 2016 VA examination for the knees, the Veteran was evaluated for his right knee but denied problems to his left knee; as such, the examiner did not evaluate the Veteran’s left knee. In a May 2017 VA examination for the Veteran’s back, the Veteran reported pain in his knee with extended walking and standing and occasional knee pain at work. Review of the medical treatment record shows complaints for knee pain. In a November 2019 physical therapy consultation, the Veteran complained of bilateral knee pain and stated that he could barely walk or bend his knees at time. The Veteran reported that he works at a creamery for 12 hour shifts that require him to stand or walk for most of the time at work. The treating provider assessed that the Veteran’s symptoms were due to poor footwear as well as the 12 hour shifts with walking and standing. In the April 2020 Board decision, the Board remanded the appeal for a VA examination to consider the July 2011 complaints of bilateral knee pain and to address the level of functional impairment caused by knee pain. The Veteran was afforded a November 2020 VA examination. The examiner opined that they did not find any evidence of a left knee condition and stated that the Veteran reported occasional soreness in the left but that was “within the physiologic spectrum of normal.” The Board notes that the examiner noted the Veteran was diagnosed with right patellofemoral pain syndrome in July 2011 but does not address the July 2011 complaints of bilateral knee pain and tenderness as requested by the April 2020 Board remand or complaints in the medical treatment of knee pain with standing, walking and bending in considering whether it rises to the level of functional impairment in line with Saunders. In addition, the Board notes the December 2015 claim raises a secondary theory of entitlement to service-connected degenerative arthritis of the spine to which the November 2020 VA examiner has not provided an opinion on the secondary theory of entitlement. Under these circumstances, the Board finds that finds the opinion inadequate and another remand is required. See Stegall v. West, 11 Vet. App. 268 (1998) (holding that where remand instructions are not followed, the Board errs as a matter of law when it fails to ensure compliance). Therefore, the Board finds that remand for compliance with the April 2020 Board remand instructions address raised secondary theories is warranted. The matters are REMANDED for the following action: 1. Obtain and associate with the claims file all updated treatment records. 2. Return the claims file to the VA examiner who provided the November 2020 opinion, if available, for an addendum opinion. The need for another examination is left to the discretion of the examiner providing the opinion. The claims file and copies of all pertinent records must be reviewed by the examiner in providing the addendum opinion. Based on this review of the record, and examination if provided, the examiner should provide opinions that respond to the following: (a.) Identify each current left knee disability, which may include pain alone that rises to the level of functional impairment. If the disability existed during the appeal period from December 2015 to the present but has resolved, this should be made clear. (b.) The examiner should record in detail the Veteran’s history of his left knee disability and how they affect his ability to function. (c.) For any left knee disability identified, whether resolved or active, please address whether it is at least as likely as note (a probability of 50 percent or greater) that such disability is etiologically related to the Veteran’s active duty military service? (d.) For any left knee disability identified, whether resolved or active, please address whether it is at least as likely as not (50 percent probability or more) that the Veteran’s left knee disability is due to his service-connected arthritis of the spine. (e.) Opine on whether it is at least as likely as not (50 percent probability or more) that the Veteran’s left knee disability is aggravated by his service-connected arthritis of the spine. “Aggravation” is defined as any worsening beyond the natural progression of the disability. The examiner should establish a baseline level of disability prior to aggravation. If a baseline cannot be established, the examiner should explain why (f.) If the Veteran is diagnosed with only pain, the examiner must determine whether such results in any functional impairment. (g.) The examiner should specifically address the July 2011 complaints of bilateral knee pain and tenderness and the Veteran’s reports of pain, tenderness, and interference with his job the creamery in the medical treatment record as noted in November 2019. 3. The examiner is also advised that the Veteran is competent to report in-service events and treatment, and her symptoms and history, and such reports and assertions must be specifically acknowledged and considered in formulating any opinions. If the examiner rejects the Veteran’s reports, the examiner must provide a reason for doing so. (a.) The examiner should provide a complete rationale for any opinion provided, and if the examiner is unable to provide any opinion request, then the examiner should state so and why. (b.) If the VA examiner is unable to provide an opinion without resort to speculation, he or she should explain whether the inability is due to the limits of the examiner’s medical knowledge, medical knowledge in general or there is evidence that, if obtained, would permit the opinion to be provided. A clearly stated rationale for any opinion offered should be provided. 4. After completion of the above and any additional development deemed necessary, the issues on appeal should be reviewed with consideration of all applicable laws and regulations. If any benefit sought remains denied, the Veteran should be furnished a supplemental statement of the case and be afforded the opportunity to respond. Thereafter, the case should be returned to the Board for appellate review. MICHAEL LANE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Yang, Attorney-Advisor 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.