Citation Nr: 21030542 Decision Date: 05/19/21 Archive Date: 05/19/21 DOCKET NO. 17-63 796 DATE: May 19, 2021 REMANDED Entitlement to an increased rating for a right knee disability, to include degenerative joint disease is remanded. Entitlement to service connection for back disability, to include as secondary to service connected bilateral connected flat foot disabilities and/or bilateral knee disabilities is remanded. Entitlement to service connection for right and left lower extremity sciatica associated to a back disability, to include as secondary to service connected bilateral flat foot and/or bilateral knee disabilities is remanded. REASONS FOR REMAND The Veteran served on active duty from December 1985 to April 1993. This case is before the Board of Veterans' Appeals (Board) on appeal from a February 2017 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In April 2021, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the electronic claims file. During the pendency of the appeal, additional development was conducted by the RO, including examination and a hearing, and the Veteran was awarded service connection for total left knee replacement associated with right knee degenerative joint disease and bilateral flat foot. Now the matters before the Board. As an initial matter, the Veteran raised a new theory of entitlement at the April 2021 Board hearing, asserting his back and associated bilateral lower extremity sciatica disabilities were secondary to the now-service-connected bilateral flat foot and left knee disabilities. See April 2021 Board hearing transcript, at 9. Thus, the Board finds that further development is necessary prior to final adjudication. The Veteran seeks an increased rating for his service-connected right knee disability and service connections for a back disability, right lower extremity sciatica, and left lower extremity sciatica. He contends his January 2017 VA examinations were improper because it lasted less than 15 minutes from when he walked in the front door to the time he left, and the examiner physically forced the knee joint past the point of pain. See e.g., RO hearing transcript, at 18; See also April 2021 Board hearing transcript, at 4. The record reflects that the Veteran was afforded a VA examination in September 2016 to assess the severity of his right knee disability. In January 2017, he was examined for his back with associated sciatica and the left knee, which included a right knee assessment. The same examiner performed the January 2017 examinations. The Veteran reported pulling a muscle while wearing heavy equipment with a backpack on active duty and performing heavy lifting and strenuous work in awkward positions as a motor vehicle mechanic. He explained that the condition has progressively gotten worse over the course of several years. Moreover, the Veteran reported that he experienced muscle spasms, weakness, decreased mobility, and pain that radiates from the lower back down to the right, and sometimes, left leg. The January 2017 examiner found no objective evidence of a back condition or associated bilateral sciatica and provided a negative nexus opinion, which was based on the lack of medical evidence. The examiner also determined a back disability with associated sciatica pain was not secondary to a right knee disability, based on the lack of evidence of continuing symptoms of a disability. 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. The January 2017 examiner did not address the Veteran's reported pain and functional loss when considering whether his back and associated bilateral sciatica symptoms rose to the level of functional impairment in line with Saunders. The Board finds the January 2017 opinion inadequate and remand warranted. 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. Notably, during the April 2021 Board hearing the Veteran asserted that his back and associated bilateral sciatica symptoms had increased in frequency and severity, causing shooting pain and leg weakness to the point of feeling it would buckle in 10-15 minute intervals. See Board hearing, at 10-11. Regarding the right knee, the Veteran also testified at the April 2021 Board hearing that his symptoms have worsened, and his VA provider suggested a total knee replacement in late 2019. See Board hearing transcript, at 2-3. However, the Veteran reported preparation for surgery was delayed due to the pandemic. Id. Thus, the Board finds that a new VA examination is necessary to ascertain the current severity of the right knee disability. See Snuffer v. Gober, 10 Vet. App. 400 (1997). On remand, the agency of original jurisdiction (AOJ) should obtain authorization and request relevant private treatment records from the Veteran, in addition to updated VA medical records. Thereafter, the Veteran should be scheduled for new VA medical examinations. The matters are REMANDED for the following action: 1. The agency of AOJ should request assistance from the Veteran and his representative in identifying any outstanding relevant treatment records for the issues on appeal from private or VA sources. All record requests and responses must be associated with the Veteran's electronic claims file. 2. Then, the AOJ must schedule the Veteran for an examination by an appropriate medical examiner to determine the current severity of his service-connected right knee disability. The examiner must review the Veteran's claims file and a copy of this REMAND order in conjunction with the examination. (a.) The examiner should provide a full description of the Veteran's right knee disability. The examiner must test the Veteran's active motion, passive motion, and pain with weight-bearing and without weight-bearing. The examiner must also attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. (b.) To the extent possible, the examiner should identify any symptoms and functional impairments due to the right knee disability alone and discuss its effect on any occupational functioning and activities of daily living. 3. The Veteran should be scheduled with an appropriate medical examiner to identify the nature and etiology of any back disability present since July 2016. The entire claims file, to include a copy of this REMAND, must be made available to and reviewed by the examiner in conjunction with the examination. The examiner is advised that the Veteran is competent to report the onset of his symptoms and history, and such reports, including those of continuity of symptomatology, must be considered and acknowledged in any opinion rendered. See April 2021 Hearing Transcript, at 5-6, 9. The examiner is asked to respond to the following: (a.) Whether it is at least as likely as not (50 percent or greater probability) that any diagnosed back disability was incurred in, caused, and/or aggravated by active duty, to include the physical activities related to basic training and his military job as a mechanic. (b.) Whether it is at least as likely as not (50 percent or greater probability) that any diagnosed back disability was caused by the Veteran's service connected bilateral knee disabilities and/or his service connected bilateral foot disability. (c.) Whether it is at least as likely as not (50 percent or greater probability) that any diagnosed back disability was aggravated (i.e. permanently worsened beyond the normal progression of that disease) by the Veteran's service connected bilateral knee disabilities and/or his service connected bilateral foot disability. (d.) The examiner must provide a complete written rationale for any opinion rendered. If it is not possible to provide an opinion without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner does not have the knowledge or training. 4. The Veteran should be scheduled with an appropriate provider to identify the nature and etiology of any right and left lower extremity sciatica disability present since July 2016. The claims file, to include a copy of this REMAND, must be made available to and reviewed by the examiner in conjunction with the examination. The examiner is advised that the Veteran is competent to report the onset of his symptoms and history, and such reports, must be considered and acknowledged in any opinion rendered. See April 2021 Hearing Transcript, at 5-6, 9-11. The examiner is asked to respond to the following: (a.) Whether it is at least as likely as not (50 percent or greater probability) that any diagnosed right and left lower extremity sciatica disability was incurred in, caused, and/or aggravated by active duty, to include the physical activities of basic training and his military job as a mechanic. (b.) Whether it is at least as likely as not (50 percent or greater probability) that any diagnosed left and/or right sciatica disability was caused by the Veteran's service connected bilateral knee disabilities and/or his service connected bilateral foot disability. (c.) Whether it is at least as likely as not (50 percent or greater probability) that any diagnosed left and/or right sciatica disability was aggravated (i.e. permanently worsened beyond the normal progression of that disease) by the Veteran's service connected bilateral knee disabilities and/or his service connected bilateral foot disability. (d.) The examiner must provide a complete written rationale for any opinion rendered. 5. After completing the above actions and any other necessary development, the issues on appeal must be readjudicated. If a claim remains denied, a Supplemental Statement of the Case must be provided to the Veteran and his representative. After the Veteran and his representative have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. MICHAEL LANE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board N. Gipson, 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.