Citation Nr: 18148680 Decision Date: 11/07/18 Archive Date: 11/07/18 DOCKET NO. 09-25 173 DATE: November 8, 2018 REMANDED Entitlement to service connection for a left knee disorder is remanded. Entitlement to service connection for a lumbar spine disorder is remanded. Entitlement to service connection for a cervical spine disorder is remanded. REASONS FOR REMAND The Veteran served on active duty from August 1976 to October 1979. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a December 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois. In November 2014 and May 2015, the Board remanded the claims for further development. In a March 2016 decision, the Board denied the Veteran’s claims of entitlement to service connection for disabilities of the left knee, low back, and neck. The Veteran appealed to the United States Court of Appeals for Veterans Claims (Court). In an April 2017 Order granting a Joint Motion for Remand (JMR), the Court vacated the Board’s March 2016 decision and remanded the case for further development in compliance with the directives specified in the JMR. In July 2017, the Board remanded the case for further development by the Agency of Original Jurisdiction (AOJ). The appeal is REMANDED again to the AOJ. VA will notify the Veteran if further action on his part is required. REMAND As stated above, pursuant to an April 2017 JMR, the Court vacated and remanded the Board’s March 2016 decision with respect to the issues of entitlement to service connection for disabilities of the left knee, low back, and neck. In the April 2017 JMR, the parties agreed that the Board provided inadequate reasons and bases when weighing the probative value of the Veteran’s lay statements. The Board’s finding was inconsistent with its May 2015 determination that the Veteran provided credible lay statements about continuous pain dating from his military service. The parties also determined that the Board erred in finding that the December 2015 VA examiner’s opinions were adequate. The December 2015 VA examiner failed to account for evidence that the Veteran sought treatment for his knee, back, and neck complaints in the 1990s. In addition, the parties stated that, in its November 2014 and May 2015 decisions, the Board expressly instructed the examiner to discuss the Veteran’s lay statements of symptoms recurring since active duty. However, the December 2015 examiner solely relied on the lack of medical evidence and did not discuss the Veteran’s assertions of continuing low back, neck, and left knee symptomatology from service. In its subsequent July 2017 remand, the Board sought compliance with its prior remand instructions. Specifically, the Board instructed the AOJ to provide a new VA medical opinion to address the Veteran’s treatment for complaints of low back pain in the 1990s and for neck and left knee pain in the late 1990s. The Board also instructed the VA examiner to address the Veteran’s contention that his substance abuse (including opioid dependence) masked the pain of his left knee, low back, and neck disabilities in the years following his active duty discharge. Unfortunately, the opinion provided by the VA examiner in October 2017 did not follow the July 2017 remand instructions from the Board. The Board instructed the following: “In rendering this opinion, the examiner should specifically note that the Veteran sought treatment for complaints of low back pain in the early 1990’s and for neck and left knee pain in the late 1990’s. The examiner should also address the Veteran’s contention that his substance abuse (including opioid dependence) masked the pain of his left knee, low back, and neck disabilities in the years following his active duty discharge.” The Board further instructed that if the examiner is unable to provide an opinion without resorting to speculation, he or she should explain why this is so and what if any additional evidence would be necessary before an opinion could be rendered. Such an opinion was obtained in October 2017. The examiner opined that the claimed conditions were less likely than not (less than a 50 percent probability) incurred in or caused by the claimed in-service injury, event or illness reasoning, at least in part, that the in-service strains had resolved and it was years after service that the claimed conditions reappeared in the clinical records. The examiner also noted that illicit drug use does not permit objective, reliable assessment as to the effect, if any, on the claimed conditions. However, the Board notes that the Veteran had reported treatment for back pain during the 1990s in the substance abuse treatment records. Furthermore, the October 2017 examiner simply relied on an absence of treatment records to determine that there was a gap in symptomatology. This opinion is therefore incomplete. On remand, an addendum opinion should be obtained. The matters are REMANDED for the following action: 1. The Veteran should be given an opportunity to identify any outstanding private or VA treatment records relevant to the claim on appeal. After obtaining any necessary authorization from the Veteran, all outstanding records, to include updated VA treatment records from July 2017 to the present, should be obtained. For private treatment records, make at least two (2) attempts to obtain records from any identified sources. If any such records are unavailable, inform the Veteran and afford him an opportunity to submit any copies in his possession. For federal records, all reasonable attempts should be made to obtain such records. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 2. After obtaining all outstanding records, return the claims file, to include a copy of this remand, to the October 2017 VA examiner for an addendum opinion regarding the nature and etiology of the Veteran’s claimed knee disorder, lumbar spine disorder, and cervical spine disorder. If the examiner who drafted the October 2017 report is unavailable, the opinion should be rendered by another appropriate medical professional. An additional in-person examination may take place at the examiner’s discretion. The examiner should respond to the following: Is at least as likely as not (i.e., a 50 percent probability or greater) that any currently diagnosed left knee, low back, and neck disorders are related to the Veteran’s active military service, to include the documented in-service injuries? In rendering this opinion, the examiner should specifically note that the Veteran sought treatment for complaints of low back pain in the early 1990s and for neck and left knee pain in the late 1990s. The examiner should discuss the Veteran’s medical treatment and complaints of neck, low-back, and knee pain during the 1980s and 1990s. For instance, an Addiction Severity Index completed in May 1997 demonstrates that the Veteran had experienced low back pain for six years prior. All opinions should be accompanied by supporting rationale and must address the Veteran’s assertions that he received treatment for knee pain, back pain, and neck pain in the 1980s and 1990s. The examiner 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 of symptomatology, he or she must provide a reason for doing so. 3. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the Veteran’s claims should be re-adjudicated based on the entirety of the evidence. If the claims remain denied, the Veteran and his representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. KRISTY L. ZADORA Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD F. Lanton, Associate Counsel