Citation Nr: 22012869 Decision Date: 03/07/22 Archive Date: 03/07/22 DOCKET NO. 17-03 369 DATE: March 7, 2022 REMANDED Entitlement to service connection for a bilateral foot disability, to include as secondary to service-connected bilateral (left and right knee) patellofemoral pain syndrome, is remanded. Entitlement to service connection for a low back disability, to include as secondary to service-connected bilateral patellofemoral pain syndrome, is remanded. Entitlement to service connection for a bilateral hip disability, to include as secondary to service-connected bilateral patellofemoral pain syndrome, is remanded. Entitlement to service connection for a bilateral leg disability, to include as secondary to service-connected bilateral patellofemoral pain syndrome, is remanded. REASONS FOR REMAND The Veteran served on active duty from February 1976 to June 1979. The Veteran testified in support of these claims during a hearing before the Board in February 2020, but a transcript of the hearing could not be produced owing to inaudible testimony in the recording. So, in February 2021, the Board advised him of this and offered another hearing, which he declined. In March 2021 and again in September 2021, the Board remanded these claims back to the local Regional Office (RO), so back to the Agency of Original Jurisdiction (AOJ), including for needed medical comment concerning the origins of these claimed disabilities in relation to the Veteran's military service and most recently because his attorney had raised an alternative theory of entitlement in July 2021 correspondence, more specifically, that these claimed disabilities are secondary to meaning caused or aggravated by his service-connected bilateral (left and right knee) patellofemoral pain syndrome. To this end, a VA medical opinion was obtained in October 2021 to address this additionally raised theory of entitlement. However, as will be discussed, the Board finds this most recent medical opinion inadequate for adjudication purposes and therefore, regrettably, must again remand these claims. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The October 2021 VA examiner determined the Veteran did not have a then current diagnosis referable to his legs. But this examiner failed to consider other medical evidence of record showing the Veteran consistently has reported experiencing chronic pain throughout the pendency of this appeal. The U. S. Court of Appeals for the Federal Circuit (Federal Circuit Court) issued a precedent decision that is directly relevant here. Namely, in Saunders v. Wilkie, the Federal Circuit Court explained that the term "disability" for VA compensation purposes refers to a functional impairment, rather than to the underlying cause of the impairment. While a diagnosed condition may result in a disability, the disability itself need not be diagnosed. Pain is an impairment because it diminishes the body's ability to function, and pain need not be diagnosed as connected to a current underlying condition to function as an impairment. Therefore, to establish the presence of a disability, a Veteran will need to show that his pain reaches the level of a functional impairment of earning capacity. The pain need not be tied to physical evidence of a lack of functionality and/or physical evidence of a current disease or injury. See Saunders, 886 F.3d 1356, 1368 (Fed. Cir. 2018). This precedent case is directly relevant here because the evidence, including the October 2021 VA medical opinion, does not indicate a current diagnosis for the Veteran's complaints. However, there remains the possibility that his pain may reach the level of a functional impairment of his earning capacity. So further development of the claims is needed to assist in making this critical determination and, in confirmed it does, for comment concerning the posited correlation between his pain and service including secondarily by way of his already determined to be service-connected bilateral knee disability (patellofemoral pain syndrome). Furthermore, although the October 2021 VA examiner did in fact address both the causation and aggravation aspects of the theory of secondary service connection, he used the same rationale. Specifically, he concluded the Veteran's claimed conditions are less likely than not caused and/or aggravated by his service-connected patellofemoral pain syndrome because the medical records showing the compensatory process of the bilateral foot, low back, bilateral hip, and bilateral leg disabilities in relation to service-connected bilateral patellofemoral pain syndrome are limited. The U. S. Court of Appeals for Veterans Claims (Veterans Court/CAVC) has held that a VA medical opinion should not combine causation and aggravation when addressing secondary service connection, as they are independent concepts requiring separate findings and rationale. See Atencio v. O'Rourke, 30 Vet. App. 74, 90-91 (2018). Consequently, for these reasons, the Board finds the October 2021 supplemental VA medical opinion inadequate. The examiner also attributed the Veteran's claimed conditions to his obesity, noting that medical records show increased body habitus since 2011 with body mass index (BMI) ranges from 32-40 which is morbidly obese and has likely put increased pressure on his feet, back, hips, and legs. In response, the Veteran's attorney submitted a brief in December 2021 asserting that the Veteran's chronic pain stemming from his service-connected bilateral patellofemoral pain syndrome as well as his traumatic brain injury (TBI) caused his BMI to increase and, thus, raised the issue of obesity as an "intermittent step" between his service-connected disabilities and bilateral foot, low back, bilateral hip, and bilateral leg disabilities. See Walsh v. Wilkie, 32 Vet. App. 300 (2020); VAOPGCPREC 1-2017 (Jan. 6, 2017). Thus, more medical comment also is needed to address this additional argument. Accordingly, these claims are again REMANDED for the following still additional development and consideration: Obtain still more medical comment (another addendum medical opinion) concerning the nature and etiology of the Veteran's bilateral foot, low back, bilateral hip, and bilateral leg disabilities. A copy of this remand and all relevant medical and other records must be made available to the examiner to assist in this determination. The examiner should review the pertinent evidence, including the Veteran's lay assertions. The examiner must provide rationale for the medical opinion offered, irrespective of whether favorable or unfavorable to the claims. Based on review of the Veteran's medical records, his lay statements regarding the development and treatment of his claimed disabilities, and consideration of all other relevant evidence in the claims file, including a complete copy of this remand, the examiner is asked to answer the following questions: (a.) First identify all current disabilities referable to the Veteran's legs - including by specifying their diagnosis. *But even if, as the prior October 2021 VA examiner concluded, the Veteran does not have a current bilateral leg diagnosis to explain or account for his reported symptoms (e.g., pain), the examiner must expressly indicate this with a fully reasoned explanation. But, as importantly, the examiner also must specify whether there is functional impairment of earning capacity owing to the Veteran's symptoms (pain, etc.) that, in turn, would for all intents and purposes warrant treating them as a ratable disability even absent an underlying diagnosis accounting for or explaining them. (b.) Is it at least as likely as not (50 percent or greater probability) the Veteran's bilateral foot, low back, bilateral hip, and/or bilateral leg disabilities were caused by his service-connected bilateral patellofemoral pain syndrome? Explain why or why not. (c.) Alternatively, is it at least as likely as not (50 percent or greater probability) the Veteran's bilateral foot, low back, bilateral hip, and/or bilateral leg disabilities were aggravated by his service-connected bilateral patellofemoral pain syndrome? Explain why or why not. If the examiner determines the bilateral foot, low back, bilateral hip, and/or bilateral leg disabilities are aggravated by the service-connected bilateral patellofemoral pain syndrome, if possible, the examiner must identify the baseline level of the disability prior to the aggravation versus since (i.e., the extent of aggravation). (d.) Given the October 2021 VA examiner's mention of the Veteran's BMIs and morbid obesity, is it at least as likely as not (50 percent or greater probability) his service-connected disabilities, including especially his bilateral patellofemoral pain syndrome and TBI, caused him to become obese, including from lack of exercise resulting from his service-connected disabilities? In other words, is his obesity (or higher than normal BMI) an "intermediate step" between his service-connected disabilities and later development of bilateral foot, low back, bilateral hip, and/or bilateral leg disabilities? (e.) If the answer is "no," is it at least as likely as not (50 percent or greater probability) the Veteran's service-connected disabilities, including especially his bilateral patellofemoral pain syndrome and TBI, aggravated his obesity, including owing to lack of exercise resulting from his service-connected disabilities? (f.) Is it at least as likely as not (50 percent or greater probability) obesity (or aggravation of obesity) was a substantial factor in the Veteran developing bilateral foot, low back, bilateral hip, and/or bilateral leg disabilities? (g.) Is it at least as likely as not (50 percent or greater probability) the Veteran would not have bilateral foot, low back, bilateral hip, and/or bilateral leg disabilities if he were not obese (or but for obesity aggravating his service-connected disabilities)? Rationale for the responses is essential, regardless of whether favorable or unfavorable to these claims, preferably citing to findings or other evidence in the file supporting conclusions and/or accepted medical authority. The examiner is advised that the Veteran is competent to report his symptoms and history, and these reports must be specifically acknowledged and considered in formulating any opinions. If the examiner rejects the Veteran's reports of symptomatology, a reason for doing so must be provided. The mere absence of evidence of treatment for bilateral foot, low back, bilateral hip, and/or bilateral leg disabilities in the Veteran's service treatment records (STRs) cannot, alone, be sufficient rationale for providing an unfavorable opinion, certainly not in the context of secondary service connection, although it is permissible to consider this as one of several factors -provided there also is explanation of why it is reasonable to have this expectation of more documentation of relevant symptoms, findings, etc., prior to initial diagnosis. If the examiner is unable to provide an opinion without resorting to mere speculation, an explanation as to why this is so and what, if any, additional evidence would be necessary before an opinion could be rendered should be provided. In other words, merely saying that he/she cannot respond will not suffice. KEITH W. ALLEN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Mukherjee, Cameron B. 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.