Citation Nr: 18146112 Decision Date: 10/30/18 Archive Date: 10/30/18 DOCKET NO. 16-36 584 DATE: October 30, 2018 REMANDED Entitlement to service connection for back disability is remanded. Entitlement to service connection for bilateral knee disability is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Navy from July 1989 to May 1994. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a May 2014 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia. 1. Entitlement to service connection for back disability is remanded. 2. Entitlement to service connection for bilateral knee disability is remanded. The Board finds that additional development is needed prior to final adjudication of the issues on appeal. First, the Board finds that new examinations are needed. The Veteran was afforded a VA examination in March 2014 for his claimed back and knee disabilities. The examiner noted that the Veteran’s claimed back and knee disabilities began while in service and gradually worsened over time. However, in his opinion that the Veteran’s claimed conditions were less likely than not incurred or caused by an in-service injury, event, or illness the examiner did not appear to consider the Veteran’s statements that his disabilities began in service and worsened over time and accordingly this examination is inadequate. See Barr v. Nicholson, 21 Vet. App. 303 (2007). In fact, the reasoning for the negative nexus opinion was the lack of documented complaints from 1994 t0 2010. It appears the examiner drew a negative inference from the lack of available records from the Veterans discharge from service to 2010. The Board is cognizant that, while the lack of contemporaneous medical records may be a fact that the Board can consider and weigh against a claimant’s lay evidence, the lack of such records does not, in and of itself, render lay evidence not credible. Buchanan v. Nicholson, 451 F.3d 1331, 1337 (2006). Accordingly, a new examination is warranted so that Veteran’s lay statements can be properly considered. The matters are REMANDED for the following action: 1. The RO must contact the Veteran and afford him the opportunity to identify or submit any additional pertinent evidence in support of the issues on appeal. Based on his response, the RO must attempt to procure copies of all records which have not previously been obtained from identified treatment sources. When requesting records not in the custody of a Federal department or agency, such as private treatment records, the RO must make an initial request for the records and at least one follow-up request if the records are not received or a response that records do not exist is not received. All attempts to secure this evidence must be documented in the claim file by the RO. If, after making reasonable efforts to obtain named records the RO is unable to secure the same, the RO must notify the Veteran and (a) identify the specific records the RO is unable to obtain; (b) briefly explain the efforts that the RO made to obtain those records; (c) describe any further action to be taken by the RO with respect to the claim; and (d) that he is ultimately responsible for providing the evidence. The Veteran must then be given an opportunity to respond. 2. The Veteran must be afforded an appropriate VA examination(s) to determine whether his currently diagnosed back and knee disabilities are related to his military service. All pertinent symptomatology and findings must be reported in detail and any indicated diagnostic tests and studies must be accomplished. The claim file must be made available to the examiner, and the examiner must specify in the examination report that these records have been reviewed. The examiner must elicit from the Veteran and record in the examination report a full history. The examiner should pay particular attention to lay evidence offered by the Veteran of symptoms in service with gradual worsening since. After a review of the evidence of record, to include the Veteran’s statements, the examiner must specifically identify all disability(ies) of the back and knees and for each disability diagnosed should provide an opinion as to whether the diagnosed disability is related to the Veteran’s military service. The examiner must provide a complete rationale for all opinions expressed. If the examiner cannot provide the requested opinion without resorting to speculation, it must be so stated, and the examiner must provide the reasons why an opinion would require speculation. The examiner must indicate whether there was any further need for information or testing necessary to make a determination. The examiner must indicate whether an opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular examiner. 3. If upon completion of the above actions the claim remains denied, the case should be returned to the Board after compliance with appellate procedures. E. I. VELEZ Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD D. Baronofsky Associate Counsel