Citation Nr: 1806529 Decision Date: 02/01/18 Archive Date: 02/14/18 DOCKET NO. 13-31 852 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUES 1. Entitlement to service connection for a neck condition of degenerative disc disease (DDD), cervical spine, status post fusion surgery. 2. Entitlement to service connection for a back condition of DDD, lumbar spine, status-post surgery. 3. Entitlement to service connection for a bilateral knee condition, claimed as left leg disorder. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD G. Lilly, Associate Counsel INTRODUCTION The Veteran served on active duty from March 1978 to March 1981. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a July 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan. For the reasons expressed below, this appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND Although further delay is regrettable, the Board finds that a remand is warranted for new medical etiology opinions for the Veteran's neck, low back, and knee conditions. 1. Cervical and Lumbar Spine Conditions. The Veteran was afforded VA Compensation and Pension (C&P) examinations in July 2012, which included an etiology opinion on his disorders. This examination was returned to the same examiner in August 2013 for an addendum opinion because the examiner erroneously reported in July 2012 "that there were no service treatment records of claimed condi[tion]s," when in actuality, the Veteran's service treatment records (STRs), included evidence of a right knee hematura in a May 20, 1980 entry; a fall down the steps, where the Veteran complained of low back pain, in a February 28, 1979 entry; and injury to the Veteran's right leg in a September 8, 1978, entry. In the August 2013 addendum, the VA examiner concurred with his July 2012 medical opinion. The examiner reasoned that the "Veteran had isolated conditions of right knee, right leg, and lower back. Isolated incident or condition is not an example of a chronic condition." See August 2013 VA Medical Opinion 1, Disability Benefits Questionnaire (DBQ), at Page 2. The examiner's opinion seems to indicate that the Veteran's back injuries were acute and resolved during active service. However, the Board finds this opinion is inadequate because the examiner failed to report the supporting data used to make his conclusion. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008) (A medical examination report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two.). Furthermore, the examiner's opinion is inadequate because it is unclear from the addendum opinion whether the examiner considered the Veteran's lay statements regarding his neck and back disabilities. The Veteran has continued to maintain that "while in the Navy I fell off a lawnmower, it then ran over me and broke my left leg. From that point I had chronic back and neck pain which developed into a more serious problem today." See August 2011 Statement in Support of Claim. The Veteran's STRs confirm that he fractured his leg after a lawn mower hit his leg. See STR, Clinical Record from September 9, 1978. However, the examiner does not reconcile the Veteran's statement with his opinion that his neck and back injuries were isolated. See Dalton v. Nicholson, 21 Vet. App. 23, 27, 39 (2007) (finding that an examiner improperly failed to discuss the Veteran's lay statements as to the occurrence of such injury). Therefore, the opinions are inadequate because it did not address the Veteran's lay statements. Based on the above, a remand is warranted for a new medical etiology and nexus opinion for the Veteran's back and neck disabilities, which is based on a full review of the record including consideration of the Veteran's statements and supported by stated rationale. See 38 U.S.C. § 5103A (2002); 38 C.F.R. § 3.159 (2017); McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). 2. Bilateral Knee Condition, Claimed as Degenerative Arthritis (Bilateral Knees). The Board also finds that a remand is warranted for a new medical etiology and nexus opinion addressing the Veteran's bilateral knee disability claim for the reasons discussed below. In the August 2013 addendum, the VA examiner concluded that the Veteran had isolated conditions of the right knee and right leg that were not related to or caused by active service because they were not chronic conditions. The Board finds this opinion is inadequate because it is improperly conclusory. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) ("When the only medical nexus evidence is rejected because the report is confusing or appears incomplete, it may be sent back for clarification or a new report may be obtained.") See also Coburn v. Nicholson, 19 Vet. App. 427, 433 (2006). Additionally, the examiner did not provide any supporting data that he used to conclude that the Veteran's knee condition was not related to service. Finally, there is no indication in the opinion, whether the examiner considered the Veteran's account that his knee was injured during the lawnmower accident and whether the Veteran's current knee disability(s) is related to that injury. As such, the opinion is inadequate. For these reasons, remand is warranted for a new medical etiology and nexus opinion for the Veteran's bilateral knee condition. See Coburn, 19 Vet. App. 433. On remand, all available VA and non-VA treatment records that are not already of record should be obtained. 38 U.S.C. § 5103A (a)-(c)(2012). Accordingly, the case is REMANDED for the following action: 1. The AOJ should obtain any outstanding VA treatment records since August 2013 and private records and associate the records obtained with the claims file. 2. After completing the foregoing development, provide the entire claims file (including this Remand decision) to a new VA examiner and obtain new etiology and nexus opinions for the neck, back, and bilateral knee disability claims. If the examiner(s) determines that an opinion(s) may not be offered without first examining the Veteran, then schedule the Veteran for an appropriate examination(s). Any clinically indicated testing and/or consultations should be performed. The examiner is requested to address the following: (a) Identify any currently present neck (cervical spine) disability(s). For any neck disability identified, is the disability at least as likely as not (50 percent probability or greater) due to, or caused by any incident in the Veteran's active service, to include the August 1978 injury resulting from a lawn mower accident? (b) Identify any currently present back (lumbar spine) disability(s). For any back disability identified, is the disability at least as likely as not (50 percent probability or greater) due to, or caused by any incident in the Veteran's active service, to include the August 1978 injury resulting from a lawn mower accident? (c) Is it at least as likely as not (50 percent probability or greater) that the Veteran's current neck and/or back disabilities had their onset or manifested within one year of the Veteran's discharge in March 1981? (d) Whether the Veteran's documented in-service injury and treatment for back pain were early manifestations of his current diagnosed degenerative disc disease of the cervical and/or lumber spine? (e) If arthritis is found to be present, the examiner is to address whether it is as likely as not (50 percent probability or greater) related to any incident of service and/or had its onset within one year of his separation from service. In forming his or her opinion, the VA examiner is asked to explicitly consider in the rationale portion of the opinion, the Veteran's lay statements and all other relevant evidence regarding each disability, and comment specifically on whether the Veteran's statements and all other relevant evidence make sense from a medical point of view. This includes the Veteran's account of experiencing chronic pain ever since he fell from the lawn mower and was injured, as well as complaints of back pain in the Veteran's service treatment records. Any opinion expressed by the VA examiner should be accompanied by a complete rationale. If medical literature is relied upon in rendering this determination, the VA examiner should identify and specifically cite each reference material utilized. If the VA examiner is unable to offer an opinion without resorting to speculation, a thorough explanation as to why an opinion cannot be rendered should be provided. 3. With respect to the bilateral knee disability claim, the examiner should identify any and all disabilities of the knee(s) to include arthritis. The examiner is requested to address the following: (a) Is it at least as likely as not that the Veteran's current knee(s) disability(s) had its onset in or is otherwise related to the Veteran's active service to include the August 1978 injury resulting from a lawn mower accident? (b) Is it at least as likely as not that the Veteran's current knee(s) disability(s) had its onset or manifested within one year of the Veteran's discharge in March 1981? (c) Whether the Veteran's documented in-service fracture of the right fibula was an early manifestation of his current knee(s) disability(s)? (d) If arthritis is found to be present, the examiner is to address whether it is as likely as not (50 percent probability or greater) related to any incident of service and/or had its onset within one year of his separation from service. In forming his or her opinion, as to the knees, the VA examiner is asked to explicitly consider in the rationale portion of the opinion, the Veteran's lay statements and all other relevant evidence regarding each disability, and comment specifically on whether the Veteran's statements and all other relevant evidence make sense from a medical point of view. This includes the Veteran's account of experiencing chronic pain ever since he fell from the lawn mower and was injured while in service. Any opinion expressed by the VA examiner should be accompanied by a complete rationale. If medical literature is relied upon in rendering this determination, the VA examiner should identify and specifically cite each reference material utilized. If the VA examiner is unable to offer an opinion without resorting to speculation, a thorough explanation as to why an opinion cannot be rendered should be provided. 4. The AOJ must review the claims file and ensure that the foregoing development action has been completed in full. If any development is incomplete, appropriate corrective action must be implemented. If any report does not include adequate responses to the specific opinions requested, it must be returned to the providing examiner for corrective action. 5. Thereafter, readjudicate the issues on appeal. If the determination remains unfavorable to the Veteran, he and his representative should be furnished with a supplemental statement of the case. The Veteran and his representative should be afforded the applicable time period to respond. The Veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (2012). _________________________________________________ YVETTE R. WHITE Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (2012), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2017)