HIP IMPAIRMENT OF

J. B. FREEMAN · 2024 · Case ID: 24004981

MIXED

Summary

The veteran, who served in the U.S. Army from January 1981 to January 1985 and November 1987 to November 1991 as a light wheel vehicle mechanic, appeals the denial of service connection for a respiratory disability (COPD) and a right shoulder disability, and the grant of service connection for right and left hip pain secondary to his service-connected back disability. The Board granted service connection for right and left hip pain, finding the veteran's testimony credible and supported by a VA addendum opinion that the pain was referred from his service-connected lumbar spine disability. The Board denied service connection for a respiratory disability, noting the lack of competent medical evidence of a current respiratory condition, despite the veteran's claims of bronchitis and shortness of breath, and his MOS indicating toxic exposure risk activity. The Board also denied service connection for a right shoulder disability, finding the evidence weighed against a nexus to service, despite the veteran's testimony of an in-service injury and the Board's initial finding of a possible in-service injury. The claims for bilateral foot disability, right and left knee disability, and right and left ankle disability, all claimed as secondary to the service-connected back disability, were remanded due to inadequate VA medical opinions that failed to conform to current legal standards for secondary service connection and pain with functional impairment.

Rationale

VA addendum opinion confirmed pain referred from service-connected back disability; Veteran's testimony credible and supported by VA opinion; Pain results in functional impairment of earned capacity

Service Branch

ARMY

Special Benefit

NO SPECIAL BENEFIT

Docket No.

19-35 287

Full Decision Text

Citation Nr: 24004981
Decision Date: 01/31/24 Archive Date: 01/31/24

DOCKET NO. 19-35 287
DATE: January 31, 2024

ORDER

Entitlement to service connection for right hip pain, to include as due to service connected back disability, is granted.

Entitlement to service connection for left hip pain, to include as due to service connected back disability, is granted.

Entitlement to service connection for a respiratory disability, also claimed as COPD, is denied.

Entitlement to service connection for a right shoulder disability is granted.

REMANDED

Entitlement to service connection for a bilateral foot disability, to include as due to service-connected back disability, is remanded.

Entitlement to service connection for right knee disability, to include as due to service-connected back disability, is remanded.

Entitlement to service connection for left knee disability, to include as due to service-connected back disability, is remanded.

Entitlement to service connection for right ankle disability, to include as due to service-connected back disability, is remanded.

Entitlement to service connection for left ankle disability, to include as due to service connected back disability, is remanded.

FINDINGS OF FACT

1. The Veteran has bilateral hip pain that causes functional impairment of earned capacity and that is secondary to his service-connected lumbosacral strain with degenerative arthritis and degenerative disk disease of the lumbar spine.

2. The Veteran does not have a respiratory disability.

3. The Veteran has a right shoulder disability due to an in-service right shoulder injury.

CONCLUSIONS OF LAW

1. The criteria for entitlement to service connection for right hip pain, to include as due to service connected back disability, are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310, 4.71a.

2. The criteria for entitlement to service connection for left hip pain, to include as due to service connected back disability, are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310, 4.71a.

3. The criteria for entitlement to service connection for a respiratory disability, also claimed as COPD, are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303.

4. The criteria for entitlement to service connection for a right shoulder disability are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 4.71a.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran honorably served in the United Stated Army from January 1981 to January 1985, and from November 1987 to November 1991, with a Military Occupational Specialty (MOS) of light wheel vehicle mechanic. See DD Form 214.

These matters were previously before the Board of Veterans' Appeals (Board) in January 2023, at which time the claim for a lumbar spine disability was granted and the claims for depression, bilateral foot disability, right and left knee disability, right and left ankle disability, right and left hip disability, a right shoulder disability, and for a respiratory disability were remanded for further developments. Notably, on remand, the Agency of Original Jurisdiction (AOJ) granted service connection for a major depressive disorder with anxious distress, which is a full grant of the benefit sought, and therefore is not on appeal.

This appeal has been advanced on the Board's docket pursuant to 38 U.S.C. § 7107; 38 C.F.R. § 20.902(c).

Service Connection

To establish service connection, it is required that the evidence demonstrates a current disability resulted from an injury or disease incurred or aggravated in active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). In general, service connection requires the following: (1) evidence of a current disability; (2) evidence of an in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the current disability. See Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004).

Pain, alone, is not a disability that
is required that the evidence demonstrates a current disability resulted from an injury or disease incurred or aggravated in active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). In general, service connection requires the following: (1) evidence of a current disability; (2) evidence of an in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the current disability. See Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004).

Pain, alone, is not a disability that would warrant service connection; however, pain with functional impairment can be considered for service connection. See Saunders v. Wilkie, 886 F.3d 1356, 1363 (Fed. Cir. 2018). To establish the presence of a disability, the veteran will need to show that his or her pain reaches the level of a functional impairment of earning capacity. Id.

A disability under Saunders requires competent evidence demonstrating that the symptoms result in functional impairment that in fact affects the veteran's earning capacity. See Wait v. Wilkie, 33 Vet. App. 8, 17 (2020). In determining whether a veteran's impairment rises to a level affecting earning capacity, VA can consider manifestations of similar severity, frequency, and duration as those VA has determined by regulation would cause impaired earning capacity in an average person. The rating schedule may serve as a guide to determine whether certain symptoms may impair earning capacity; however, it is not dispositive. Id. at 17.

In making all determinations, the Board must fully consider all the relevant medical evidence as well as lay evidence. Furthermore, it is required to assess the competency and credibility of the relevant evidence, and to consider its probative weight. When considering whether lay evidence is competent, the Board must determine, on a case-by-case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. See Kahana v. Shinseki, 24 Vet. App. 428 (2011); Jandreau v. Nicholson, 492 F.3d 1373, 1376-77 (Fed. Cir 2007).

Finally, when determining whether service connection is warranted, VA is responsible for determining whether the evidence persuasively favors one side or the other. See Lynch v. McDonough, 21 F.4th 776, 781-82 (Fed. Cir. 2021) (en banc). The Veteran is entitled to the benefit of the doubt when the evidence is in approximate balance and does not require that the evidence be in exact equipoise. Id.

1. Entitlement to service connection for right hip pain, to include as due to service connected back disability, is granted.

2. Entitlement to service connection for left hip pain, to include as due to service connected back disability, is granted.

The Veteran testified that his hip pain is secondary to his back disability. See June 2021 Hearing Transcript. He reported having bilateral hip pain, groin pain, loss of motion of the hips, joints swelling and tenderness. See September 2021 Third Party Correspondence.

In August 2023, the Veteran was afforded a VA examination in connection with his claim for service connection for a hip disability. The Veteran reported hip pain with severe flare-ups three times a week, lasting all day, precipitated by prolonged sitting and standing, and alleviated by rest. See August VA Examination Report. The Veteran described his functional impairment as having to sit in a recliner and being limited in his regular activities. Id. The VA examiner did not find evidence of a disability, but upon physical examination, the Veteran's range of motion (ROM) was abnormal, and the examiner found that it contributed to functional loss. Id. Pain was noted during all ROM testing. Id. Ultimately, with respect to the Veteran's bilateral hip pain, the VA examiner found that the pain was referred pain from the back disability, and that it was caused by his service-connected disability lumbar spine disability with degenerative disc disease. See October 2023 VA Addendum Opinion.

The Board finds that the evidence demonstrates that the Veteran's right and left hip pain results in functional impairment of earned capacity, and therefore can be considered a disability for the purpose of establishing entitlement to service connection. See Saunders, 886 F.3d at 1363. Based on the positive VA opinion, the competent medical evidence also shows that the Veteran's pain is caused by his service-connected lumbosacral strain with degenerative arthritis and degenerative disk disease of the lumbar spine.

Accordingly, entitlement to service connection for right and left hip pain
from the back disability, and that it was caused by his service-connected disability lumbar spine disability with degenerative disc disease. See October 2023 VA Addendum Opinion.

Accordingly, entitlement to service connection for right and left hip pain, secondary to service-connected lumbosacral strain with degenerative arthritis and degenerative disk disease of the lumbar spine, has been established and the claims are granted. 38 C.F.R. § 3.102; Lynch, 21 F.4th 776, 781-82 (Fed. Cir. 2021) (en banc).

3. Entitlement to service connection for a respiratory disability, also claimed as COPD, is denied.

The Veteran testified that during service he developed acute bronchitis from pneumonia and that his bronchitis continued since service. See June 2021 Hearing Transcript.

A review of the service treatment record reveals that during service the Veteran was treated for nasal congestion and cold symptoms in April 1988 and April 1989. See October 2009 STR.

The private treatment records show the Veteran was seen for congestion in February 2014 and in February 2016 assessed as acute bronchitis, but upon examination the treating physician stated that the lungs were clear to auscultation bilaterally, without wheezes, rhonchi, or rales. See July 2017 Private Treatment Record. Additionally, the record does not reveal complaints of shortness of breath or symptoms of a chronic respiratory disability. Id.

In August 2023, the Veteran was afforded a VA examination in connection with his claim. The Veteran reported that his symptoms started in 1981, when he had bronchitis, and that it continued since. See August 2023 VA Examination Report. He also reported complains of shortness of breath on activity, but he is not prescribed any medication for his condition. Id. Ultimately, the VA examiner did not find evidence of a current disability. Specifically, the examiner noted that the Veteran's April 2023 chest x-ray and Pulmonary Function Test (PFT) were both normal and did not reveal any abnormality or disability. Id. Based on the above, the VA examiner opined that the Veteran did not have a disability that was related to his service. Id.

Here, the Board acknowledges that the Veteran complained of shortness of breath while performing activities and that he testified that he has bronchitis. However, the question of whether he has a respiratory disability is a complex medical question that cannot be established by lay evidence. See Kahana v. Shinseki, 24 Vet. App. 428 (2011); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Since the record does not show that the Veteran received medical training to make such determination, the Board cannot assign probative weight to his lay statement. Similarly, although he is competent to report what a medical expert has told him, the Veteran has not reported that a medical expert has diagnosed him with a respiratory disability. Thus, there is no competent medical evidence of record to establish he has a current disability. Additionally, a review of the VA treatment records did not reveal complaints or treatments for cough or shortness of breath, wheezing, or any respiratory disease or symptoms that can be associated to his current claim. See October 2023 Capri Record.

Finally, the Veteran was found to have been participated in a toxic exposure risk activity (TERA) due to his MOS of light wheel vehicle mechanic. See October 2023 VA Memo. However, the TERA examination requirement pursuant to the PACT Act, was not triggered here because there is no evidence of a current disability, which is the minimum requirement needed to afford the Veteran with such examination. 38 U.S.C. § 1168(a).

In light of the above, the evidence persuasively weighs against the claim for entitlement to service connection for a respiratory disability, and the benefit-of-the-doubt doctrine is not for application. The claim therefore must be denied. 38 U.S.C. § 5107(b); see also Lynch, 21 F.4th at 781; 38 C.F.R. § 3.102.

4. Entitlement to service connection for a right shoulder disability is denied
the TERA examination requirement pursuant to the PACT Act, was not triggered here because there is no evidence of a current disability, which is the minimum requirement needed to afford the Veteran with such examination. 38 U.S.C. § 1168(a).

4. Entitlement to service connection for a right shoulder disability is denied.

The Veteran testified that during service, the strenuous military activity he endured, coupled with the need to carry heavy equipment on his right shoulder, caused his current symptomatology. See June 2021 Hearing Transcript.

In August 2023, the Veteran was afforded a VA examination in connection with his claim. The Veteran complained of sharp right shoulder pain that started in 1980s which progressed and worsened to this day. See August 2023 VA Examination Report. The VA examiner found that the Veteran did not have any right shoulder disability, and physical examination revealed a normal range of motion. Id. Additionally, the right shoulder Hawkin's impingement test, as well as the Empty Can test, Crank Apprehension and Relocation test, External Rotation Infraspinatus Strength test, Lift-off Subscapularis test, and a crossbody adduction test, were all negative. Id. Finally, a May 2023 x-ray of the right shoulder was negative for any abnormality. See August 2023 Private Treatment Record. With respect to the functional impairment of the Veteran's symptoms, the VA examiner indicated that activities that require reaching of the right arm, or carrying heavy objects may need to be modified. See August 2023 VA Examination Report. Ultimately, the VA examiner opined that the Veteran did not have a disability and therefore it was not related to service. Although the Veteran did not claim secondary service connection, the VA examiner opined that the right shoulder disability was not secondary to the back disability because the back pain does not radiate to the shoulders, and therefore the two disabilities are not causally related. Id.

Here, at the June 2021 hearing, the Veteran did not indicate whether he was diagnosed with a disability for his right shoulder, but that his symptoms mainly consisted of pain. See June 2021 Transcript. The VA examination was silent for a diagnosis of the right shoulder, and the right shoulder x-ray was normal. The VA examiner also indicated that the functional impact of the Veteran's pain consisted in the need to modify activities when using the right arm and that require to carry heavy objects. Therefore, the evidence shows that his disability amounted to a functional impairment of earning capacity. See Wait, 33 Vet. App. at 17.

The Board resolves reasonable doubt in favor of the Veteran and finds that he had an in-service injury as he testified competently and credibly that he had a shoulder injury from carrying heavy equipment and that his pain has persisted from service to the present. This evidence satisfies the second and third elements of service connection. Shedden, supra. Accordingly, the claim for entitlement to a right shoulder disability must be granted. 38 U.S.C. § 5107(b); see also Lynch, 21 F.4th at 781; 38 C.F.R. § 3.102.

REASONS FOR REMAND

The claims for a bilateral foot disability, for a left and right knee, and for left and right ankle disability returned to the Board for further appellate consideration. For the reasons below, the Board finds that the remand directives were not substantially complied with, and a remand is necessary to ensure due process, fulfill VA's duty to assist, and comply with the Board remand. 38 U.S.C. § 5103A; Stegall v. West, 11 Vet. App. 268 (1998).

1. Entitlement to service connection for a bilateral foot disability, to include as secondary to service-connected back disability, is remanded.

The Veteran testified that his bilateral feet disability is caused by his service-connected back disability. See June 2021 Hearing Transcript. Specifically, he contended that his back disability altered his gait and caused him to develop pain in the arch, heel, and ball of his feet, as well as pain when walking and standing for extended periods of time, and a limited range of motion and flexion, along with swelling tenderness, and instability. See September 2021 Third Party Correspondence.

In August 2023, the Veteran was afforded a VA examination in connection with his claim. The Veteran reported

1. Entitlement to service connection for a bilateral foot disability, to include as secondary to service-connected back disability, is remanded.

In August 2023, the Veteran was afforded a VA examination in connection with his claim. The Veteran reported rigorous and strenuous military activities contributed to wear and tear on the feet. See August 2023 VA Examination Report. He also complained of bilateral throbbing, aching, non-radiating bilateral foot pain when walking, and reported using insoles and treating the pain with acupressure. Id. The Veteran stated that he has severe flare-ups that occur every day, lasting for the rest of the day, precipitated by standing and walking, and alleviated by rest. Id. He indicated that during flare-ups he must cease any activity until pain subsides, and that normally he can't run or walk, especially for long hours. Id. Upon physical examination, the VA examiner noted that the Veteran exhibited pain and that pain along with swelling and its interference with standing, all contributed to functional loss. Id. However, the VA examiner did not find evidence of a disability and stated that the Veteran's decreased range of motion is secondary to the radiating pain, called "referred" pain, from the back, rather than being due to a specific joint condition. Id.

With respect to direct service connection, the VA examiner opined that the Veteran's post-service career in security and steel mill, as well as his diabetes mellitus may be associated with his bilateral foot pain but did not provide any reasons for this conclusion. See August 2023 VA Opinion. Additionally, the VA examiner, failed to provide an opinion with respect to the Veteran's claim for secondary service connection, but generally stated that his bilateral foot pain his due to referred back pain.

With respect to pain, while pain alone is not a disability that would warrant service connection, when pain produces functional impairment of earning capacity, it can be considered for service connection. See Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018). Here, there was no opinion on whether the bilateral foot pain was secondary to the back disability, although the examiner described is as "referred pain" from the back.

Based on all the above, the Board finds the August 2023 VA opinion to be inadequate for rating purposes, and that the claim must be remanded to obtain clarification on the nature and etiology of the Veteran's disability, to include pain.

Although further delay is regrettable, the Board finds that a new addendum opinion is necessary to adjudicate the claim on appeal. Accordingly, entitlement to service connection for a bilateral foot disability is remanded.

2. Entitlement to service connection for right knee disability, to include as due to service-connected back disability, is remanded.

3. Entitlement to service connection for left knee disability, to include as due to service-connected back disability, is remanded.

The Veteran contended that his right and left knee disability is secondary to his service-connected back disability, which altered his gait. See September 2021 Third Party Correspondence. The Veteran's symptoms include pain, popping, grinding, rubbing sensation, buckling, stiffness. Id. Additionally, the Veteran contended functional impairment due to pain when walking up and down the stairs, or after sitting for an extended period of time. Id.

In August 2023, the Veteran was afforded a VA examination in connection with his claim. During the examination, the Veteran reported that strenuous and rigorous military activities have resulted in chronic left and right knee pain. See August 2023 VA Examination Report. He also complained of right and left knee pain radiating down to right and left ankles. Id. The Veteran reported severe flare-ups three times a week, lasting the whole day, precipitated by prolonged sitting and standing, climbing and kneeling, and alleviated by rest. Id. The Veteran stated that he must cease all activities until pain subsides. Id. He described his functional impairment as inability to do regular activities or sit or stand for prolonged periods. Id. Upon physical examination, the VA examiner noted that his range of motion was abnormal bilaterally, but that it did not contribute to functional loss. Id. Additionally, the examiner indicated that there was evidence of pain with weight-bearing, nonweight-bearing, active and passive motion, and that the pain causes functional
right and left knee pain radiating down to right and left ankles. Id. The Veteran reported severe flare-ups three times a week, lasting the whole day, precipitated by prolonged sitting and standing, climbing and kneeling, and alleviated by rest. Id. The Veteran stated that he must cease all activities until pain subsides. Id. He described his functional impairment as inability to do regular activities or sit or stand for prolonged periods. Id. Upon physical examination, the VA examiner noted that his range of motion was abnormal bilaterally, but that it did not contribute to functional loss. Id. Additionally, the examiner indicated that there was evidence of pain with weight-bearing, nonweight-bearing, active and passive motion, and that the pain causes functional loss, bilaterally. Id. Moreover, the examiner noted that there was evidence of crepitus bilaterally, but without evidence of joint instability, ankylosis, muscle atrophy, or other impairments of the tibia, fibula or meniscus. Based on the physical examination, the VA examiner did not find evidence of a specific disability but did not conduct or review any diagnostic testing in connection with the claim to provide an etiology opinion on the abnormal range of motion and crepitus. Id. Finally, the VA examiner indicated that the Veteran's pain and decreased ROM was related to the radiating pain from the back and not due to a specific joint condition. Id. With respect to the etiology of the Veteran's symptoms, the examiner opined that a nexus for direct service connection was not established because the service records available are silent for an injury or diagnosis for the left knee during military service, after separation, and presently. Id. With respect to the Veteran's secondary service connection claim, the VA examiner opined that the records are silent for a relationship between the back and the knees, and that the bilateral knee pain was not secondary to the service-connected back injury, thus contradicting his prior statement about the etiology of the Veteran's knee pain. See October 2023 Addendum Opinion.

The Board finds that the August 2023 and October 2023 opinions are inadequate because consist of mere conclusory statements without providing a thorough medical analysis to support the conclusions. The Board must be able to conclude that a medical expert has applied valid medical analysis to the significant facts of the case to reach the conclusion submitted in the medical opinion. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295,304 (2008); see also Stefl v. Nicholson, 21 Vet. App. 120 (2007) (holding "a mere conclusion by a medical doctor is insufficient to allow the Board to make an informed decision as to what weight to assign to a doctor's opinion")."

With respect to pain, while pain alone is not a disability that would warrant service connection, when pain produces functional impairment of earning capacity, it can be considered for service connection. See Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018). Here, there was no opinion on whether the bilateral knee pain was secondary to the back disability, although the examiner described is as "referred pain" from the back.

Although further delay is regrettable, the Board finds that a new addendum opinion is necessary to obtain clarification on the nature and etiology of the Veteran's disability, to include pain. Based on the above, the claims for entitlement to service connection for a right and left knee disability are remanded.

4. Entitlement to service connection for right ankle disability, to include as due to service connected back disability, is remanded.

5. Entitlement to service connection for left ankle disability, to include as due to service connected back disability, is remanded.

The Veteran testified in 2021 that his bilateral ankle disability is secondary to his service-connected back disability. See June 2021 Hearing Transcript. Specifically, the Veteran contended that his back disability altered his gait, thus causing stiffness, pain, limited mobility, and popping in his ankles, and as a result he cannot walk or stay seated for prolonged periods of time. See September 2021 Third Party Correspondence.

In August 2023, the Veteran was afforded a VA examination in connection with his claim. The Veteran reported pain radiating from the back to his ankles, with severe flare-ups occurring three times a week, lasting the whole day, precipitated by prolonged standing and alleviated by rest. See August 2023 VA Examination Report. Upon physical examination, the Veteran's range of motion was normal, bilaterally, but with evidence of pain during weight-bearing, nonweight-bearing, and active motion, causing functional loss. Id. The VA examiner did not find evidence of crepitus, muscle atrophy, ankylosis, joint instability, or any other disability, bilaterally. The VA examiner concluded that there was no diagnosis for the Veteran's symptoms and that the Veteran's complaint of pain referred pain from the back and is not due to a specific joint condition. Id. The VA examiner noted that the pain was causing functional impairment consisting in the Veteran not being able to do regular activities and having to cease all activities during flare-ups. Id. Ultimately, the VA examiner opined that the right and left ankle disabilities were not directly related to service because the Veteran did not have a diagnosis for his disability. See August 2023 VA Opinion. More specifically, the VA examiner stated that "ankle conditions are inherent to the joint such as a sprain, fracture, tendonitis, DJD" and that the record was silent for any of such disability. With respect to the Veteran's pain, the VA examiner stated that his bilateral ankle pain was referred pain from the back.

The Board finds that the August 2023 opinion is inadequate because the VA examiner failed to provide a rationale for the opinions provided, simply stating that the record does not reveal a diagnosis for the right and left ankles. Moreover, after the Board's January 2023 remand, the U.S. Court of Appeals for the Federal Circuit clarified the standard for secondary service connection. Spicer v. McDonough, 61 F.4th 1360, 1364-65 (Fed. Cir. 2023). The August 2023 opinion does not conform to the restated standard. Thus, the Board must remand for a new opinion.

With respect to pain, while pain alone is not a disability that would warrant service connection, when pain produces functional impairment of earning capacity, it can be considered for service connection. See Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018). Here, there was no opinion on whether the bilateral ankle pain was secondary to the back disability, although the examiner described is as "referred pain" from the back.

Although further delay is regrettable, the Board finds that a new addendum opinion is necessary to obtain clarification on the nature and etiology of the Veteran's disability, to include pain. Based on the above, entitlement to service connection for a right ankle and left ankle disability are remanded.

The matters are REMANDED for the following actions:

1. Schedule the Veteran for a VA examination with an appropriate examiner for his bilateral foot disability, right and left knee disability, and right and left ankle disability claim. All diagnostic testing deemed to be necessary by the examiner should be accomplished.

The examiner is reminded that while pain alone is not a disability that would warrant service connection, when pain produces functional impairment of earning capacity, it can be considered for service connection. See Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018). Therefore, the examiner must provide an opinion on whether the knees, ankles, and feet pain 1) impair his ability to function under the conditions of daily life, and 2) whether the pain is directly related to service or secondary to the lumbar back disability. Notably, the previous VA examiner indicated the Veteran's knees, ankles, and feet pain was "referred pain" from the back.

With respect to secondary service connection, the VA examiner is required to ask the following specific questions:

a) Whether, but for the Veteran's service-connected lumbar spine disability, the Veteran would not have pain in his knees.

b) Whether the Veteran's right and left knee pain would be less severe and result in less functional impairment but for the Veteran's service-connected lumbar spine disability.

If the examiner opines that the right and left knee pain would result in less functional impairment but for the Veteran's service-connected lumbar spine disability, the examiner must attempt to establish a baseline level of severity of the diagnosed disability prior to aggravation by the service-connected lumbar spine disability.

c) Whether, but for the Veteran's service-connected lumbar spine disability, the Veteran would not have right and left ankle pain.

d) Whether the Veteran's right and left ankle pain
-connected lumbar spine disability, the Veteran would not have pain in his knees.

b) Whether the Veteran's right and left knee pain would be less severe and result in less functional impairment but for the Veteran's service-connected lumbar spine disability.

c) Whether, but for the Veteran's service-connected lumbar spine disability, the Veteran would not have right and left ankle pain.

d) Whether the Veteran's right and left ankle pain would be less severe and result in less functional impairment but for the Veteran's service-connected lumbar spine disability.

If the examiner opines that the right and left ankle pain would result in less functional impairment but for the Veteran's service-connected lumbar spine disability, the examiner must attempt to establish a baseline level of severity of the diagnosed disability prior to aggravation by the service-connected lumbar spine disability.

e) Whether, but for the Veteran's service-connected lumbar spine disability, the Veteran would not have bilateral foot pain.

f) Whether the Veteran's bilateral foot pain would be less severe and result in less functional impairment but for the Veteran's service-connected lumbar spine disability.

(Continued on the next page)

g) If the examiner opines that the bilateral foot pain would result in less functional impairment but for the Veteran's service-connected lumbar spine disability, the examiner must attempt to establish a baseline level of severity of the diagnosed disability prior to aggravation by the service-connected lumbar spine disability.

J. B. FREEMAN

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board E. Fiorito, 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.

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