Citation Nr: 18152049 Decision Date: 11/20/18 Archive Date: 11/20/18 DOCKET NO. 16-40 158 DATE: November 20, 2018 REMANDED Entitlement to service connection for a left elbow condition is remanded. Entitlement to service connection for a right elbow condition is remanded. Entitlement to service connection for a low back condition is remanded. Entitlement to service connection for a left knee condition is remanded. Entitlement to service connection for a right knee condition is remanded. REASONS FOR REMAND The Veteran had active military service in the U.S. Army from April 1962 to April 1965. At the outset, the Board notes that this claim was originally denied in a January 2010 rating decision, which the Veteran did not immediately appeal. However, in July 2010, within one year of the decision date, the Veteran submitted additional lay evidence which was relevant to the previously denied claims. The Board has carefully considered whether the submission of evidence prevented the earlier rating decision from becoming final. See 38 C.F.R. § 3.156(b) (new and material evidence received within the one year period prior to the decision becoming final or received prior to the appellate decision if a timely appeal has been filed is to be considered as having been received in connection with the claim which was pending at the beginning of the appeal period); Beraud v. McDonald, 766 F.3d 1402, 1406-07 (Fed. Cir. 2014) (holding that a claim remains pending where VA failed to fulfill a statutory duty to determine the character of newly submitted evidence and declining to presume that VA considered records of which it had notice, but never obtained); Bond v. Shinseki, 659 F.3d 1362, 1367 (Fed. Cir. 2011) (noting that 3.156(b) requires VA to determine whether subsequently submitted evidence constituted new and material evidence relating to an earlier claim). Within a year of the notice of the January 2010 rating decision the Veteran submitted a July 2010 lay statement. There was no determination as to whether this evidence was new and material. Accordingly, the January 2010 decision has remained pending and not final. The issues have been recharacterized to reflect the correct procedural posture. 1. Entitlement to service connection for a left elbow condition is remanded. 2. Entitlement to service connection for a right elbow condition is remanded. 3. Entitlement to service connection for a low back condition is remanded. 4. Entitlement to service connection for a left knee condition is remanded. 5. Entitlement to service connection for a right knee condition is remanded. The Veteran contends that his orthopedic disabilities were caused by the cumulative effects of service, including his assignment of infantry duties and his in-service motor vehicle accident. The Veteran underwent VA examination in December 2009, where the examiner recognized diagnoses of lumbar spine strain, right knee osteoarthritis, left knee strain, and bilateral elbow osteoarthritis. The examiner stated that those conditions were less likely permanently aggravated by the Veteran’s period of active service based on a review of his physical examination and the Veteran’s occupational history. Given that the VA examiner failed to adequately consider the Veteran’s lay testimony regarding chronic symptoms since service, and failed to provide an opinion addressing the Veteran’s disabilities under the correct standard, the Board finds that an additional VA examination is warranted. Once VA undertakes a duty to provide a medical examination, due process requires an adequate medical opinion. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Consequently, a remand is necessary for another examination. The examiner should provide adequate rationale for any opinion rendered. The matters are REMANDED for the following action: 1. Afford the Veteran appropriate VA examinations to determine the nature and etiology of his currently diagnosed lumbar spine strain, right knee osteoarthritis, left knee strain, and bilateral elbow osteoarthritis. The examiner is asked to determine whether it is at least as likely as not (50 percent or greater probability) that the lumbar spine strain, right knee osteoarthritis, left knee strain, and bilateral elbow osteoarthritis had onset or is etiologically related to the Veteran’s period of active service, to include his in-service motor vehicle accident and heavy lifting associated with infantry work. The examiner is requested to explain whether there is any medical reason to accept or reject the Veteran’s contentions that his experiencing chronic pain in his claimed joints since separation did not represent the onset of a chronic disability. 2. Upon completion of the above, and any additional development deemed appropriate, the AOJ should readjudicate the remanded issue(s). If any benefit sought on appeal remains denied, the Veteran and his representative should be provided with a supplemental statement of the case. An appropriate period of time should be allowed for response, the appeal must be returned to the Board for appellate review. REBECCA N. POULSON Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J.L. Reid, Associate Counsel