Citation Nr: 22015644 Decision Date: 03/18/22 Archive Date: 03/18/22 DOCKET NO. 18-31 945 DATE: March 18, 2022 REMANDED Entitlement to service connection for a back disorder is remanded. Entitlement to service connection for a bilateral knee condition is remanded. REASONS FOR REMAND The Veteran served on active duty during the Vietnam Era from May 1974 to May 1976. These matters are before the Board of Veterans' Appeals (Board) on appeal of a February 2018 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran was afforded a hearing before the undersigned Veterans Law Judge in October 2021. A transcript of the hearing has been associated with the Veteran's electronic claims file. 1. Entitlement to service connection for a back disorder 2. Entitlement to service connection for bilateral knee condition The Veteran asserts that he injured his back and knees during active duty service during advanced individual training when he fell from an 18 foot pole. See October 2021 Hearing Transcript. At the October 2021 Board hearing, the Veteran testified that he fell from an 18 foot pole during advanced individual training, injuring his back and knees. The Veteran testified that he continued to experience pain during active duty service, that he received steroid shots in his back while stationed in Europe in 1975, and that he has continued to experience pain since service. The Veteran testified that he was treated for his back and knee conditions by a private doctor, Dr. J.G., from 1979 to his retirement in 2020. The Veteran further testified that his records were transferred to his new doctor, Dr. E.R., and that he has also received treatment at Heron Valley Hospital. The Veteran testified Dr. J.G. referred him to a specialist who administered x-rays and found injuries to his back. The Veteran testified that he has experienced pain resulting in functional loss, specifically that he has experienced lack of mobility requiring treatment with steroid shots to his back, hips, and knees. The Veteran testified that his knees locked up at work, and that he was subsequently sent for x-rays and was unable to work for two months. The Veteran was afforded a VA examinations for his back and knees in February 2018. The examiner noted the Veteran's complaints of knee pain but determined that the Veteran had no currently diagnosed knee condition. The examiner also noted that the onset of the Veteran's pain was seven years prior. The examiner opined that the Veteran's claimed knee condition was not related to military service, as there were no complaints in service and there is a lack of evidence of a knee disability immediately after military service. Regarding the Veteran's claimed back condition, the examiner noted the Veteran's report of an in-service fall as well as Service Treatment Records showing complaints of back pain. The Veteran reported the onset of back pain 10 years prior and that he had been diagnosed with arthritis. The examiner determined that the Veteran has no currently diagnosed back condition. The examiner opined that the Veteran's back condition resolved during service as there was no diagnosis of a chronic back condition at discharge and there is a lack of evidence of continuous symptoms since service. The examiner further opined that the Veteran's current back pain is separate and distinct from his in-service back pain. The private treatments records identified by the Veteran at the October 2021 Board hearing have not been associated with the record, and a remand is necessary to attempt to obtain these records. While the Board acknowledges that the Veteran did not respond to a January 2018 request for private treatment records from Dr. J.G., who has retired, the Veteran has since provided additional information regarding the location of these records and has identified additional private treatment records. As such, a remand is necessary to ensure that there is a complete record upon which to decide the Veteran's claim so that he is afforded every possible consideration. VA has a duty to make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C. § 5103A(a); 38 C.F.R. § 3.159(c), (d). The Board reminds the Veteran that a claimant, in pursuing a claim, has some responsibility to cooperate in the development of all facts pertinent to his claims, and the duty to assist is not a one-way street. Wood v. Derwinski, 1 Board. App. 190 (1991). During the pendency of this appeal, the U.S. Court of Appeals for the Federal Circuit recently 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." Saunders v. Wilkie, 886 F.3d. 1356 (Fed. Cir. 2018). Here, there have been complaints of back and knee pain requiring steroid shots, and complaints of knee pain and locking which caused the Veteran to be unable to work for two months. See October 2021 Hearing Transcript. In light of Saunders v. Wilkie, a remand is needed to schedule the Veteran for a physical examination as pain alone can serve as a functional impairment and therefore qualify as a disability. If such pain does result in functional impairment then it must be determined if such functional impairment is related to the Veteran's military service. Further, the examiner should consider any private treatment associated with the record pursuant to the Board's remand directives. The matters are REMANDED for the following action: 1. Ask the Veteran to complete a VA Form 21-4142/21-4142a for any relevant private treatment records, to include records from Dr. J.G., Dr. E.R., and Heron Valley Hospital. 2. Once the development above has been completed, schedule the Veteran for a VA examination for his bilateral knee condition. The claims file should be made available to the examiner for review. All indicated tests and studies should be accomplished, and all clinical findings should be reported in detail. For each diagnosed knee disorder, the examiner should opine as to whether it is at least as likely as not (i.e., 50 percent or greater probability) that the disorder is causally or etiologically due to service. If no such disorder is identified, the examiner must indicate whether the Veteran's reported knee pain causes any functional impairment. If it is determined the Veteran's knee pain causes functional impairment, please opine as to whether it is at least as likely as not (a 50 percent or greater probability) that such functional impairment is etiologically related to the Veteran's active duty service. The examiner should specifically address the Veteran's report that he injured his knees in service after falling from an 18 foot pole, that he has experienced continuous knee pain since service, that he has received steroid shots in his knees, and that he was unable to work for two months due to his knees locking up. The examiner must indicate whether the Veteran's assertions are generally consistent with medical knowledge or plausible, and whether the Veteran's reports about symptoms experienced over the years align with how the current knee condition is known to develop. A fully articulated medical rationale for each opinion expressed must be set forth in the medical report. The medical professional should discuss the particulars of this Veteran's medical history and the relevant medical science that applies to this case, including the use of any medical literature, which may reasonably explain the medical guidance in the study of this case. 3. Schedule the Veteran for a VA examination for his back condition. The claims file should be made available to the examiner for review. All indicated tests and studies should be accomplished, and all clinical findings should be reported in detail. For each diagnosed back disorder, the examiner should opine as to whether it is at least as likely as not (i.e., 50 percent or greater probability) that the disorder is causally or etiologically due to service. If no such disorder is identified, the examiner must indicate whether the Veteran's reported back pain causes any functional impairment. If it is determined the Veteran's back pain causes functional impairment, please opine as to whether it is at least as likely as not (a 50 percent or greater probability) that such functional impairment is etiologically related to the Veteran's active duty service. The examiner should specifically address the Veteran's report that he injured his back in service after falling from an 18 foot pole, that he has experienced continuous back pain since service, and that he has received steroid shots in his back. The examiner must indicate whether the Veteran's assertions are generally consistent with medical knowledge or plausible, and whether the Veteran's reports about symptoms experienced over the years align with how the current back condition is known to develop. A fully articulated medical rationale for each opinion expressed must be set forth in the medical report. The medical professional should discuss the particulars of this Veteran's medical history and the relevant medical science that applies to this case, including the use of any medical literature, which may reasonably explain the medical guidance in the study of this case. TANYA SMITH Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Bynum, 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.