Citation Nr: 21028123 Decision Date: 05/10/21 Archive Date: 05/10/21 DOCKET NO. 19-02 824 DATE: May 10, 2021 REMANDED Entitlement to service connection for a right knee disability is remanded. Entitlement to service connection for a left knee disability is remanded. Entitlement to service connection for a left shoulder disability is remanded. Entitlement to service connection for a right shoulder disability is remanded. REASONS FOR REMAND The Veteran had active service from September 2008 to October 2012. An August 2020 Board decision remanded the issues on appeal for further development. That development has been accomplished, and the claim has now been returned to the Board for further action. 1. Entitlement to service connection for a right knee disability is remanded. 2. Entitlement to service connection for a left knee disability is remanded. 3. Entitlement to service connection for a left shoulder disability is remanded. 4. Entitlement to service connection for a right shoulder disability is remanded. Regrettably, the Board finds that further development is necessary prior to a merits analysis of the Veteran's claim to service connection for a bilateral knee disability and a bilateral shoulder disability. The Veteran asserts that his bilateral knees and bilateral shoulders cause constant aching, pain, and cause inability to run or jog. Medical treatment records as well as the Veteran's competent assertions support his symptomology. An October 2020 VA examination report for the bilateral knees and the bilateral shoulders provided a negative etiologic opinion as to direct service connection for either disability. As rationale, the examiner stated simply that there was no evidence of diagnosis, treatment, or symptoms of either claimed disability in service treatment records or within one year of service separation, and the examiner stated that the claimed pain for each disability was without pathology. Prior VA examination reports of record similarly provided a negative etiologic opinion based on a lack of diagnoses. As previously noted in the August 2020 Board remand, The United States Court of Appeals has held that pain in the absence of a presently diagnosed condition can cause functional impairment which may qualify as a disability for VA purpose. See Saunders v. Wilkie, 886 F.3d 1356, 1368 (Fed. Cir. 2018). Therefore, in light of Saunders, a remand is necessary to obtain an additional VA examination. The examiner is directed to report the Veteran's current symptomatology and to address whether the Veteran's reported pain results in any functional impairment. Saunders, 886 F.3d at 1362. The Board also notes that the absence of evidence, such as a diagnosis of a claimed disability in service treatment records, does not automatically constitute substantive negative evidence. Buczynski v. Shinseki, 24 Vet. App. 221, 224 (2011). On remand, the examiner should refrain from basing any etiologic opinion on the lack of diagnosis of any claimed disability in the Veteran's service treatment records. The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination for his claimed right and left knee disabilities as well as his claimed right and left shoulder disabilities. The record, including a complete copy of this remand, must be made available to the examiner for review, and the examiner must indicate in the examination report that the record was reviewed in conjunction with the examination, including for the history of the claimed disabilities. The examiner(s) should respond to the following question: Whether it is at least as likely as not (i.e., probability of 50 percent or greater) that the Veteran's claimed left knee disability, right knee disability, left shoulder disability, and/or right shoulder disability is caused by or related to his active military service, to include consideration of the motor vehicle accident in which the Veteran was involved in Afghanistan in 2011 and the lay statements of the Veteran's fellow servicemembers recording that incident. The examiner should determine all current diagnoses for any knee or shoulder disability. If no disabilities exist, the examiner is directed to state whether there is any functional impairment caused by the Veteran's reported pain for either knee or shoulder. If functional impairment exists for either claimed disability, the examiner is to presume diagnosis of a disability and provide an etiologic opinion based on that diagnosis. A complete rationale should be provided for all opinions given. 2. Readjudicate the issues remaining on appeal. If the benefits sought on appeal remain denied, provide a Supplemental Statement of the Case to the Veteran and his representative, and an appropriate period of time in which to respond. Thereafter, return the appeal to the Board for appellate review. R. Erdheim Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board N. Peden 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.