Citation Nr: 19114792 Decision Date: 02/28/19 Archive Date: 02/28/19 DOCKET NO. 11-19 651 DATE: February 28, 2019 REMANDED Entitlement to service connection for a neck disorder, to include arthritis, is remanded. Entitlement to service connection for residuals of a left knee injury is remanded. REASONS FOR REMAND The Veteran had active duty service from September 1978 to September 1981. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a July 2010 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). In February 2013, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the record. In June 2014, July 2016, and November 2017, the Board remanded the above issues, as well as claims for service connection for residuals of a right ankle injury, a left foot disorder, and a right foot disorder for additional development. While on remand, in a November 2018 rating decision, the Agency of Original Jurisdiction (AOJ) granted service connection for right ankle strain and bilateral plantar fasciitis with pes planus. As such are full grants to the benefits sought with respect to these issues, these matters are no longer before the Board for consideration. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1977). The remaining issues now return for further appellate review. 1. Entitlement to service connection for a neck disorder, to include arthritis. With respect to the Veteran’s claim for service connection for a neck disorder, to include arthritis, an addendum opinion was obtained in December 2017 pursuant to the Board’s November 2017 remand directives. At such time, the examiner addressed whether the Veteran’s neck disorder was related to service. As relevant to the Board’s inquiries, the examiner was requested to acknowledge and discuss the competent lay evidence of continued neck pain during service; the lay evidence of continuity of symptomatology after service; and the medical evidence of record, to include the treatment the Veteran received in September 1978 and the contemporaneous X-ray evidence of small spur on C-5. In December 2017, the VA examiner opined that the Veteran’s neck disorder was less likely than not incurred in or caused by the claimed in-service injury, event or illness. In this regard, he reported that the Veteran entered active duty in September 1978, and had a finding of a spur on the cervical spine around such time. However, he found that such finding was evidence of a long-standing problem with the neck, which finally resulted in spur formation. Thus, the examiner found that the Veteran’s neck disorder existed prior to service. He further noted that the physical findings of crepitation and popping pointed to a chronic, long-standing problem. The examiner also observed that the term “bone spurs” was a misnomer, as the word “spurs” implied that such bony growths were spurring or poking some part of the spinal anatomy and causing pain; however, contrary to such implication, bone spurs were in fact smooth structures that formed over a prolonged period of time. As the December 2017 VA examiner raised the issue of whether the Veteran had a pre-existing neck disorder at the time of entry into service, a remand is necessary in order to obtain an addendum opinion addressing such matter based on the proper legal standard. Further, an addendum opinion is necessary for the VA examiner to address the Veteran’s reports of neck pain during and since service. 2. Entitlement to service connection for residuals of a left knee injury. With respect to the Veteran’s claim for service connection for residuals of a left knee injury, an addendum opinion was obtained in December 2017 pursuant to the Board’s November 2017 remand directives. At such time, the examiner addressed whether the Veteran’s residuals of a left knee injury were related to service, including as a result of his military duties, to include playing basketball and/or running up a hill with an M60 machine gun. As relevant to the Board’s inquiries, the examiner was requested to acknowledge and discuss the competent lay evidence of continued left knee pain during service; the lay evidence of continuity of symptomatology after service; and the medical evidence of record, to include the treatment the Veteran received in May 1980. In December 2017, the VA examiner opined that the Veteran’s left knee disorder was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. As rationale for the opinion, he reported that the Veteran’s STRs included only one incident referable to the left knee. Here, the examiner explained that a May 1980 service treatment record indicated that the Veteran was seen after hours at the Emergency Room for complaints of discomfort in his left knee, at which time he was ambulating without a limp, a knee examination was negative, and he was instructed to follow-up at sick call. He further reported that a service treatment record dated later the same month noted that the Veteran was seen in sick call for a follow-up, at which time his condition was identified as left thigh pain. Such record further noted a negative examination except for a possible Baker’s cyst and an X-ray of the knee was negative. The examiner indicated that there were no other relevant service treatment records addressing the Veteran’s left knee, the clinical findings did not support a knee joint injury in the context of a patellar dislocation or ACL/PCL, there was no lateral or medial collateral ligament injury, there was no evidence presented for a meniscal trauma, there was no swelling of the knee; and he was walking with a normal gait without evidence of a limp. The examiner concluded that, without documentation of a knee joint disorder, there was no way to connect the Veteran’s disorder to service. He further concluded that the findings were a musculoskeletal strain, an acute problem, without additional documented treatment in service, and there was no documentation of a continuity of care or complaints for a knee disorder. However, the non-documentation of chronicity of care after the Veteran’s in-service left knee complaints is an insufficient rationale to support a negative opinion in light of the Veteran’s lay reports of a continuity of symptomatology since service. In this regard, the December 2017 VA examiner failed to acknowledge and discuss the lay evidence of continuity of symptomatology after service as directed by the November 2017 Board remand. Here, during his February 2013 Board hearing, the Veteran testified that, after service, whenever he hits his left knee in a certain spot near the middle, a knot swells up. He further testified that, over the past 30 years, he had to watch his left knee because if he hit it wrong then he was in serious pain. Similarly, the examiner failed to acknowledge and discuss whether the Veteran’s left knee disorder was consistent with injuries sustained while performing his military duties, to include playing basketball and/or running up a hill with an M60 machine gun, as directed by the November 2017 Board remand. Therefore, a remand is necessary in order to obtain an addendum opinion that considers the Veteran’s lay reports of a continuity of symptomatology since service and addresses all of the Board’s inquiries. The matters are REMANDED for the following action: Return the record to the VA examiner who conducted the Veteran’s December 2017 examinations. The record, to include a copy of this Remand, should be made available to, and be reviewed by, the examiner. If the December 2017 VA examiner is not available, the record should be provided to an appropriate medical professional so as to render the requested opinions. The need for additional examinations of the Veteran is left to the discretion of the clinician selected to write the addendum opinion. Following a review of the record, the examiner should address the following inquiries: Neck Disorder Is there clear and unmistakable evidence that the Veteran’s current neck disorder pre-existed his entry to active duty in September 1978? (i) If there is clear and unmistakable evidence that the Veteran’s current neck disorder pre-existed his military service, the examiner is asked to opine as to whether there is clear and unmistakable evidence that such did not undergo an increase in the underlying pathology during service, i.e., was not aggravated during service. If there was an increase in the severity of the Veteran’s current neck disorder, the examiner should offer an opinion as to whether such increase was clearly and unmistakably due to the natural progress of the disease. (ii) If there is no clear and unmistakable evidence that the Veteran’s current next disorder pre-existed service, then the examiner is asked whether it is at least as likely as not (i.e., a 50 percent or greater probability) that such disorder is directly related to service, to include the treatment received in September 1978 and contemporaneous x-ray evidence of a small spur on C-5? Left Knee Disorder Is it at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran’s current left knee disorder (including left knee degenerative joint disease) was incurred in or is otherwise related to his military service, to include the left knee treatment received in May 1980 or as a result of his military duties, to include playing basketball and/or running up a hill with an M60 machine gun? In addressing the aforementioned inquiries, the examiner must consider and discuss the Veteran’s reports of neck and left knee pain during and since service. A rationale for any opinion offered should be provided. A. JAEGER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Koria B. Stanton, Associate Counsel