Citation Nr: 18144809 Decision Date: 10/25/18 Archive Date: 10/25/18 DOCKET NO. 17-13 904 DATE: October 25, 2018 ORDER Entitlement to service connection for right knee disability is denied. Entitlement to service connection for left knee disability is denied. REMANDED Entitlement to service connection for lumbar spine disability is remanded. Entitlement to service connection for right ankle disability is remanded. Entitlement to service connection for left ankle disability is remanded. Entitlement to service connection for gastroesophageal reflux disease (GERD) is remanded. FINDING OF FACT There is no evidence in the record reflecting the onset of right or left knee disabilities during service or within a year of separation, and there is no evidence of a nexus between the Veteran’s current right and left knee disability and his active service. CONCLUSIONS OF LAW The criteria for establishing service connection for right knee disability have not been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303. The criteria for establishing service connection for left knee disability have not been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSIONS The Veteran served on active duty from September 1998 to September 2003. This appeal to the Board of Veterans’ Appeals (Board) arose from an October 2015 rating decision. Entitlement to service connection for right and left knee disabilities The Veteran filed an application for service connection for right and left knee disabilities in June 2015. However, he did not make any specific comment regarding its onset or why he believes these disabilities should be service connected. Certain chronic diseases will be granted service connection on a presumptive basis if there is evidence they manifested within a year of separation from service. 38 C.F.R. §§ 3.307(a), 3.309(a). Arthritis is among these chronic diseases. 38 C.F.R. § 3.309(a). The Veteran's VA treatment records reflect a diagnosis of bilateral synovitis and arthritis during the pendency of this claim. However, there is no indication in the Veteran’s service treatment records of any right or left knee complaints while in service. Likewise, there is no evidence within the first year after the Veteran separated from service regarding this issue. Finally, the current treatment reports do not demonstrate a reported history of continuity of symptomatology. As noted above, there are no lay statements from the Veteran regarding a connection between his current right and left knee disabilities and his active duty service, and no contentions of continuity of symptomatology. As there is therefore no indication that the current disability might be associated with the Veteran’s service, there is no requirement that VA obtain a medical opinion on this issue. See McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). In sum, as there is no evidence of an in-service incurrence of right or left knee problems, onset within a year of separation, or of a nexus between the current disability and the Veteran’s service, service connection for right and left knee disabilities is not warranted. REASONS FOR REMAND The Veteran asserts that his lumbar spine, GERD, and bilateral ankle disabilities are a result of his service. The Veteran underwent VA examinations in October 2015. The examiner noted that the Veteran sustained injuries to his lumbar spine and his right and left ankles, however, the examiner opined that the Veteran’s disabilities were not the result of service, because there was no evidence of ongoing problems following the injuries. With regard to his GERD disability, the examiner also provided a negative opinion because there was no notation of GERD during service. Here, the examiner relied solely on the absence of documented treatment for his disabilities, and thus, failed to address the Veteran’s contention of continuity of symptoms since service, specifically that he experienced back and bilateral ankle problems since the onset of symptoms in September 1998. See Dalton v. Nicholson, 21 Vet. App. 23 (2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir 2006). Notably, the Veteran asserts that his back pain began as a result of his duties as an avionics technician in the October 2015 VA examination. With regard to the claimed GERD disability, the Veteran asserts that the episode of gastroenteritis, as noted in a December 2002 service treatment record, was a manifestation of his GERD, as the symptoms are similar. Thus, addendum opinions addressing the Veteran’s lay statements of continuity of symptoms since service should be addressed. As the matters are being remanded, and it appears that the Veteran continues to receive treatment through VA, updated VA treatment records should also be obtained. See Sullivan v. McDonald, 815 F.3d 786, 793 (Fed. Cir. 2016). The matters are REMANDED for the following action: 1. Obtain any outstanding updated VA treatment records. 2. Request an addendum opinion from a qualified VA physician to determine the etiology of his lumbar spine disability. The need for an additional examination of the Veteran is left to the discretion of the VA examiner(s) providing the opinion. The claims file and a copy of this Remand must be made available to the reviewing examiner, and the examiner shall indicate in the addendum report that the claims file was reviewed. Based on review of the record, the physician should address whether it is as least as likely as not (50 percent probability or more) that the lumbar spine disability, to include lumbar facet arthropathy and lumbar strain, had its onset during service or was otherwise causally related to service, to include the February 2003 back injury noted in service and the Veteran’s contention that he experienced back problems since 1998 due to his in-service duties as an avionics technician. In answering all of the questions, the physician may not rely solely on the absence of medical records as a basis for the opinion and should consider the Veteran’s statements, particularly his reports of continuity of symptoms since 1998. The physician is advised that the Veteran is competent to report his symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinions. If the examiner rejects the Veteran’s reports, the examiner must provide a reason for doing so. The physician should provide a rationale for each opinion given. 3. Request addendum opinion from a qualified VA physician to determine the etiology of his GERD. The need for an additional examination of the Veteran is left to the discretion of the VA examiner(s) providing the opinion. The claims file and a copy of this Remand must be made available to the reviewing examiner, and the examiner shall indicate in the addendum report that the claims file was reviewed. Based on review of the record, the physician should determine whether it is as least as likely as not (50 percent probability or more) that the GERD, had its onset during service or was otherwise causally or etiologically related to service, to include any symptoms manifested during service and the Veteran’s contentions that the December 2002 acute gastroenteritis noted in service was a manifestation of his GERD, as the symptoms are similar. In answering all of the questions, the physician may not rely solely on the absence of medical records as a basis for the opinion and should consider the Veteran’s statements, particularly his reports of his continuity of symptoms since December 2002. The physician is advised that the Veteran is competent to report his symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinions. If the examiner rejects the Veteran’s reports, the examiner must provide a reason for doing so. The physician should provide a rationale for each opinion given. 4. Request addendum opinion from a qualified VA physician to determine the etiology of his bilateral ankle disabilities. The need for an additional examination of the Veteran is left to the discretion of the VA examiner(s) providing the opinion. The claims file and a copy of this Remand must be made available to the reviewing examiner, and the examiner shall indicate in the addendum report that the claims file was reviewed. Based on review of the record, the physician should determine whether it is as least as likely as not (50 percent probability or more) that the bilateral ankle disabilities, to include right ankle arthritis and strain and left ankle strain had its onset during service or was otherwise causally related to service; discussion should include consideration of documented in-service January and October 2000 ankle injuries. In answering all of the questions, the physician may not rely solely on the absence of medical records as a basis for the opinion and should consider the Veteran’s statements, particularly his reports of continuity of symptoms since 1998. The physician is advised that the Veteran is competent to report his symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinions. If the examiner rejects the Veteran’s reports, the examiner must provide a reason for doing so. The physician should provide a rationale for each opinion given. ERIC S. LEBOFF Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Sarah Campbell