Citation Nr: 21039981 Decision Date: 07/02/21 Archive Date: 07/02/21 DOCKET NO. 16-07 601 DATE: July 2, 2021 REMANDED Entitlement to service connection for a back disability is remanded. Entitlement to service connection for a left knee disability is remanded. Entitlement to service connection for a right knee disability is remanded. REASONS FOR REMAND The appellant served on active duty for training (ACDUTRA) from July 2009 to October 2009. This matter comes before the Board of Veterans' Appeals (Board) from an April 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) which denied service connection for a medial sesamoid stress fracture of the left foot, a back disability, and left and right knee disabilities. The appellant filed a timely Notice of Disagreement (NOD), received in July 2015. A Statement of the Case (SOC) was issued in December 2015. A timely substantive appeal was received in February 2016. The appellant was afforded a hearing before the undersigned Veterans Law Judge (VLJ) via videoconference in January 2019. A transcript is of record. In May 2019, the Board remanded the matter for additional evidentiary development. While the matter was in remand status, in an August 2020 rating decision, the RO granted service connection for a well healed sesamoid fracture of the left foot with no residual functional deficit and assigned an initial 10 percent rating, effective October 21, 2014. The award of service connection for a well healed sesamoid fracture of the left foot with no residual functional deficit constitutes a full award of the benefit sought on appeal with respect to that claim. See Grantham v. Brown, 114 F.3d 1156, 1158 (Fed. Cir. 1997) (holding that a separate notice of disagreement must be filed to initiate appellate review of downstream elements such as the disability rating or effective date assigned). Thus, that issue is no longer before the Board. In August 2020, the RO issued a supplemental statement of the case (SSOC) addressing the remaining issues on appeal. The matter has been returned to the Board for further appellate proceedings. 1. Entitlement to service connection for a back disability. 2. Entitlement to service connection for a left knee disability. 3. Entitlement to service connection for a right knee disability. The appellant contends that he developed bilateral knee and back disabilities as a result of his service-connected sesamoid fracture of the left foot. See e.g. January 2019 hearing transcript. In November 2019, the appellant was afforded a VA medical examination in connection with his claims of service connection for back and bilateral knee disabilities. After examining the appellant and reviewing the file, the examiner opined that there was no residual or chronic disability subject to service connection shown by the service medical records or demonstrated by evidence following service. She also opined that the appellant's current "back discomfort" and "right and left knee discomfort" are less likely than not proximately due to or the result of the sesamoid fracture of the left foot because there was no medical nexus establishing causality between current complaints and well healed sesamoid fracture of the left foot. The Board finds that the November 2019 medical opinion is inadequate. First, the examiner's finding of the presence or absence of a current disability is unclear. As noted, she first determined that there was no residual or chronic disability subject to service connection but then also concluded that the appellant's current "back and knee discomfort" was not causally related to his service-connected left foot disability. In Saunders v. Wilkie, the U.S. Court of Appeals for the Federal Circuit held that "pain in the absence of a presently-diagnosed condition can cause functional impairment," which may qualify as a "disability" under 38 U.S.C. § 1110 for purposes of establishing service connection. Although a subjective assertion of pain alone is not sufficient to establish the presence of a disability, a veteran may show that his or her pain reaches the level of functional impairment of earning capacity. Wait v. Wilkie, 33 Vet. App. 8 (2020) (discussing what is necessary for a claimant to demonstrate that his or her pain reaches the level of a functional impairment of earning capacity). The Board therefore finds that the question of the presence of a current disability requires clarification on remand. In addition, the Board notes that although the examiner addressed the question of whether the Veteran's current back and knee discomfort were causally related to his service-connected left foot disability, she did not address the question of aggravation. The U.S. Court of Appeals for Veterans Claims has held that because there are two prongs to a secondary service connection claim -- causation and aggravation -- in order to be adequate, a medical opinion must provide explanations for both prongs. Atencio v. O'Rourke, 30 Vet. App. 74 (2018); El-Amin v. Shinseki, 26 Vet. App. 136, 140 (2013). Recognizing this deficiency, the RO sought a clarifying medical opinion on the question of aggravation. In July 2020, the examiner indicated that she was unable to resolve the issue without resort to mere speculation. In her opinion, the expertise of an orthopedist is appropriate to analyze and formulate the requested medical opinion. There is no indication, however, that an additional medical opinion was solicited and the question of aggravation, if any, therefore remains unresolved. Thus, the Board finds a remand is necessary in order to obtain an adequate medical opinion. Barr v. Nicholson, 21 Vet. App. 303 (2007) (holding that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). The matters are REMANDED for the following action: Schedule the appellant for a VA medical examination for the purpose of addressing the nature and etiology of any current back and bilateral knee disabilities. Provide access to the appellant's claims to the examiner for review. After examining the appellant and reviewing the record, the examiner should provide an opinion, with supporting rationale, as to the following: Is at least as likely as not that the appellant has current back, right knee, and/or left knee disabilities? If so, provide a diagnosis or diagnoses. If no pathology is identified on examination, the examiner should elicit a description from the appellant of any functional impairment in earning capacity due to his previously reported back and bilateral knee discomfort. If the examiner determines that the appellant has current low back and/or bilateral knee disabilities (or back or bilateral knee symptoms resulting functional impairment of earning capacity), then the examiner should opine whether it is at least as likely as not that any current back or bilateral knee disability identified (or symptoms that result in functional impairment in earning capacity) were caused by his service-connected well healed sesamoid fracture of the left foot? If not, is it at least as likely as not that any current back or bilateral knee disability (or symptoms that result in functional impairment in earning capacity) are aggravated by (made worse as shown by comparing the current disability to medical evidence created prior to any aggravation) by the service-connected well healed sesamoid fracture of the left foot? K. Conner Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Penn, 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.