Citation Nr: 21041158 Decision Date: 07/08/21 Archive Date: 07/08/21 DOCKET NO. 17-04 693A DATE: July 8, 2021 REMANDED Entitlement to service connection for a disability manifested by left should pain is remanded. Entitlement to service connection for a disability manifested by bilateral knee pain is remanded. Entitlement to service connection for a disability manifested by bilateral foot pain is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from August 1980 to August 1983. This matter comes to the Board of Veterans' Appeals (Board) from a February 2016 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO) of the Veterans Benefits Administration (VBA), which is the Agency of Original Jurisdiction (AOJ). The Veteran expressed timely disagreement with this determination, and the present appeal ensued. The Veteran's appealed issues were previously before the Board in December 2018, when it was determined that remand was necessary to ensure that VA fulfilled its duty to assist the Veteran in substantiating his appeal. The Board's prior remand directives and the subsequent actions of the AOJ will be discussed below. The Veteran's appeal has been returned to the Board for further appellate consideration. 1. Entitlement to service connection for a disability manifested by left should pain is remanded. 2. Entitlement to service connection for a disability manifested by bilateral knee pain is remanded. 3. Entitlement to service connection for a disability manifested by bilateral foot pain is remanded. While further delay is regrettable, the Board concludes that another remand is necessary in order to ensure substantial compliance with the Board's prior remand directives. The Board's December 2018 remand directed the AOJ to contact the Social Security Administration (SSA) and request all records, decisions, and filings, pertinent to any claim filed by the Veteran for disability benefits from that Administration. While the AOJ contacted the SSA via secure messaging in October 2019, the file is devoid of any response received by VA. These actions and inactions do not amount to substantial compliance with the Board's prior remand directives, and thus, another remand is necessary. Stegall v. West, 11 Vet. App. 268, 271 (1998); D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Murincsak v. Derwinski, 2 Vet. App. 363 (1992); Golz v. Shinseki, 590 F.3d 1317 (Fed. Cir. 2010). Further, the Board directed the AOJ to request that the Veteran be scheduled for appropriate VA examinations to determine the nature and etiology of his claimed disabilities of the left shoulder, knees, and feet. The VA Nurse Practitioner who completed the February 2020 VA examination stated that the file did not reflect current diagnoses of disabilities of the left shoulder or knees, and that diagnostic testing to confirm or rule out such diagnoses were "outside the scope" of the examination. Nonetheless, the examiner opined that the Veteran's plantar fasciitis and pain in his knees and left shoulder were less likely as not due to any incident of his active duty because the substantial time gap between the Veteran's service separation and his first complaints of such. The Board finds the February 2020 VA examination and opinions to be inadequate for several reasons. First, the VA examiner's statement that the record did not reflect a disability of either knee is inconsistent with a February 2012 Express Mobile Diagnostic Services Final X-ray report documenting an anterior superior patellar spur on the Veteran's right knee. Second, even if a diagnosed disability cannot be identified regarding the Veteran's left shoulder and/or either knee, the United States Court of Appeals for the Federal Circuit recently held in Saunders v. Wilkie, 886 F.3d 1356, 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." Third, the Board's December 2018 remand specifically directed that any diagnostic testing necessary to identify or rule out the Veteran's claimed disabilities must be completed, and yet, this did not occur. Finally, to the extent that the February 2020 VA examiner provided unfavorable nexus opinions regarding the Veteran's claimed and identified disabilities of the left shoulder, knees, and feet, these opinions discount the Veteran's competent reports of experiencing pain in the these body parts during and since service because of a lack of objective medical evidence corroborating such. This rationale is contrary to the United States Court of Appeals for Veterans Claims' (the Court's) holding in Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006), they are inadequate, and another remand is necessary. If the Veteran remains incarcerated, the AOJ must follow the guidance provided by Bolton v. Brown, 8Vet. App.185, 191 (1995) in arranging for his re-examination. The matters are REMANDED for the following actions: 1. The AOJ must obtain and associate with the file any decision and award letters concerning disability benefits from the Social Security Administration (SSA), to include the medical records on which that decision was based. If the search for such records has negative results, the claims file must be properly documented as to the unavailability of these records. 2. The AOJ must obtain any additional outstanding treatment records, including prison medical records, for the Veteran and associate them with the claims file. All attempts to secure any identified records and any response received must be documented in the case file. 3. Thereafter, the AOJ must take all reasonable measures to schedule the Veteran for the examinations requested below. In completing this directive, the AOJ must confer with prison authorities to determine whether the Veteran may be escorted to a VA medical facility for examination or if an examination at the prison is feasible. If that is not possible, then the Veteran may be examined at the prison by: (1) VHA personnel; (2) prison medical providers at VA expense; or (3) fee-basis providers contracted by VHA. 4. Thereafter, the AOJ must request that the Veteran be scheduled for an appropriate VA examination by an appropriate clinician other than the February 2020 VA examiner to determine the nature and etiology of the Veteran's claimed disabilities of the left shoulder, knees, and feet. The examiner must review all pertinent records associated with the file. After of review of the complete record, an interview with and examination of the Veteran, and the completion of diagnostic testing necessary to confirm or rule out the Veteran's claimed disabilities, the examiner must address the following: a. Confirm or rule out diagnoses of the following disabilities: i. Any disability manifested by left shoulder pain; ii. Any disability manifested by pain in either knee; *If an anterior superior patellar spur of the Veteran's right knee is not identified, such a finding must be reconciled with the February 2012 x-ray report noting this disability. iii. Any disability manifested by pain in either foot. *If plantar fasciitis is not identified, such a finding must be reconciled with the medical evidence reflecting a diagnosis of this disability. b. For any disability identified in any subpart of (a), please provide an opinion addressing whether such is at least as likely as not proximately due to or the result of any incident of the Veteran's active duty. c. If the Veteran's reported left shoulder, knee, and/or foot pain are not found to be manifestations of any disability, please describe the functional impairment resulting from the Veteran's pain. In doing so, the examiner is requested, to the extent possible, to describe any and all effects of the Veteran's pain on his ability to reach, push, pull, stand, walk, run, bend, stoop, and maintain balance. Supporting rationale must be provided with all requested opinions. If the examiner cannot provide an opinion without resorting to mere speculation, this should be so stated along with supporting rationale. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to the particular question. 5. Thereafter, the AOJ must readjudicate the Veteran's appealed issues in light of the totality of evidence of record. If any benefit sought is not granted to the fullest extent, the AOJ must provide the Veteran and his representative with a copy of the readjudication and afford them an appropriate period to respond. SCOTT W. DALE Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Ragofsky, 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.