Citation Nr: 21028979 Decision Date: 05/12/21 Archive Date: 05/12/21 DOCKET NO. 17-07 727 DATE: May 12, 2021 REMANDED Entitlement to service connection for a right knee disability is remanded. REASONS FOR REMAND The Veteran served on active duty from October 1972 to October 1974. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a August 2015 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia. The Veteran testified before the undersigned Veterans Law Judge (VLJ) in a Board video hearing in January 2021. A transcript of the hearing is of record. 1. Entitlement to service connection for a right knee disability is remanded. The Veteran filed a claim for entitlement to service connection for his right knee in November 2014, saying his right knee pain affected his right leg, and that he believed the condition derived from an incident in active service where his right knee was injured in a July 1973 incident and he was treated in a military hospital for about two weeks. Service medical records indicate a right knee injury due to physical, traumatic impact on the side of the knee. The records note the Veteran said his knee "popped" at the time of the injury, and the treating medical person noted possible damage to the medial meniscus. There was mild soft tissue swelling at the time but no initial effusion. However, upon reexamination the next day, marked effusion on the right knee was noted along with marked tenderness to the injury site. VA provided an examination in April 2016, and the examiner diagnosed a right knee strain. The examiner noted the conservative treatment of the injury sustained while stationed in Germany in 1973. That examiner noted that there were no other pertinent findings, complications, conditions, signs, or symptoms. This examiner provided a negative opinion for service connection, saying it was less likely than not, less than 50 percent probability, that the Veteran's right knee claim was related to service, with his rationale being that the claims fie had no further notes to be found of any ongoing, chronic sequelae resulting an acute "and apparently self-limiting" injury. The Veteran initially switched to VA healthcare in early 2014 and received his first physical examination in March 2014. A history of knee arthritis was noted. The Veteran testified before the undersigned VLJ in January 2021. The Veteran noted he had a current diagnosis for right leg neuropathy, and he stated that his symptoms were constant, total pain in his right leg. The Veteran also pointed out that he had testing for neuropathy in his right leg that "passed," but that he still has burning sensations in his leg, with occasional numbness as well. The Veteran pointed out that his leg is sometimes unstable because of the pain and that he has to hold on to rails and objects for support. The Veteran described his July 1973 incident at his base in Germany during active service, and that even though the doctors there did not determine an exact cause at the time, that the pain has been going on since service, and that it has gotten worse with age. The claims file contains a medical opinion dated February 2021 from a private physician familiar to the Veteran regarding a range of symptoms to include lower back problems with right leg radiating symptoms, to include an unsteady right knee. There is a section that notes that VA has diagnosed peripheral neuropathy, but there are no VA medical records currently in the claims file as to that diagnosis, even though the Veteran has received VA medical care since March 2014. In addition, even though the diagnoses of the Veteran's right leg disability vary, the Veteran's complaints of constant pain in his right leg have not been sufficiently addressed. 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. 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). The Board finds that the VA examination and opinion from the April 2016 VA examiner is inadequate, and that the Board must remand for a new VA examination and opinion for service connection. There is nothing close to agreement as to the nature of the Veteran's claimed disability, and there are mentions of medical records from both VA and private sources that are not in the claims file. (CONTINUED ON NEXT PAGE) The matters are REMANDED for the following action: 1. Make appropriate efforts to obtain and associate with the claims file any updated private and VA medical records identified and authorized for release by the Veteran. 2. Schedule the Veteran for a VA examination by an appropriate VA medical professional with the appropriate orthopedic and neurological expertise to determine the nature and etiology of the Veteran's right knee and any related disabilities. The claims file must be made available to and reviewed by the examiner. 3. The examiner then should answer the following question for the claimed right knee disabilities: Whether it is at least as likely as not (probability of 50 percent or greater) that the Veteran's claimed right knee disabilities had its onset in service or is otherwise related to any in-service disease, event, or injury? Attention is invited to the Veteran's reports and statements of chronic pain in his right knee area. 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 varying diagnoses of the Veteran's right knee symptomatology, and the tasked examiner is asked to consider all of the medical evidence from whatever source and explain in detail in his/her medical opinion. A detailed rationale supporting the examiner's opinion should be provided. In forming the opinion, the examiner must consider all lay statements of record. The examiner should consider the Veteran a reliable historian as to his description of his symptoms. Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). If the examiner feels that the requested opinion 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). 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 issue 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.