Citation Nr: 20023034 Decision Date: 04/02/20 Archive Date: 04/02/20 DOCKET NO. 10-19 260 DATE: April 2, 2020 REMANDED Entitlement to service connection for headaches. Entitlement to service connection for a right knee disability. Entitlement to service connection for a left knee disability. Entitlement to service connection for a right hip disability. Entitlement to service connection for a left hip disability. Entitlement to service connection for a right ankle disability. Entitlement to service connection for a left ankle disability. Entitlement to service connection for a right foot disability, other than pes planus. Entitlement to service connection for a left foot disability, other than pes planus. REASONS FOR REMAND The Veteran served on active duty from August 1993 to June 1996. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a September 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California. The Veteran testified at a video conference hearing before the undersigned Veterans Law Judge in December 2013. In September 2014, July 2016, and August 2017, the Board remanded this case for further development. In July 2016, the Board remanded this case in order to obtain VA nexus opinions regarding his claims of service connection for headaches, neck disability, bilateral knee disabilities, bilateral hip disabilities, and bilateral ankle disabilities. The Board specifically noted that the Veteran provided competent lay evidence of these conditions and has linked them to injuries sustained during jump school. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). The opinions were provided in September 2016; however, the VA examiner impermissibly predicated her negative opinions on the lack of documented treatment in the record for each claimed disability and did not address the Veteran’s contentions of in-service incidents or onset of pain for the claimed disabilities. As such, the Board found the opinions inadequate, and remanded again in August 2017 to obtain adequate opinions. See Buchanan v. Nicholson, 451 F. 3d 1331, 1336-37 (Fed. Cir. 2006) (VA examiner's opinion inadequate that relied on the absence of contemporaneous medical evidence); see also Acevedo v. Shinseki, 25 Vet. App. 286, 294 (2010); Dalton v. Nicholson, 21 Vet. App. 23, 39 (2007). Following the Board’s remand, VA opinions were obtained in November 2017. Unfortunately, this examiner did not properly address the Veteran’s contentions either. In a September 2018 deferred rating decision, the RO found that addendum opinions were necessary in order for the examiner to properly address the lay evidence in the record. The decision included instructions to return the Veteran’s claims file to the examiner who provided the November 2017 opinions in order to obtain adequate opinions. However, the Veteran’s file was then sent to an outside contractor for examinations in order to obtain nexus opinions on the Veteran’s service connection claims. These examinations were scheduled in October 2019, but the Veteran did not report at the specified place and time. The Veteran’s representative has contended that the Veteran did not receive notification of the examinations. There is no evidence in the claims file that proper notification was sent. As such, the Board finds that another remand is warranted in order to obtain adequate nexus opinions regarding the Veteran’s service connection claims on appeal. The matters are REMANDED for the following action: 1. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of his headaches. The examiner must opine whether it is at least as likely as not related to an in-service injury, event, or disease, to include an injury during jump school. The examiner must address the Veteran’s contentions as set out in the September 2016 examination report. 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. For purposes of this examination, the Veteran’s reports of an injury during jump school should be accepted as credible. The absence of evidence of treatment for his claimed disability in the Veteran's service treatment records cannot, standing alone, serve as the basis for a negative opinion. If the examiner rejects the Veteran's reports of symptoms, the examiner should provide a reason for doing so. 2. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any bilateral knee disability. The examiner must opine whether it is at least as likely as not related to an in-service injury, event, or disease, to include an injury during jump school. If arthritis is diagnosed, the examiner must opine whether it at least as likely as not (1) began during active service, (2) manifested within one year after discharge from service, or (3) was noted during service with continuity of the same symptomatology since service. The examiner must address the Veteran’s contentions as set out in the September 2016 examination report. 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. For purposes of this examination, the Veteran’s reports of an injury during jump school should be accepted as credible. The absence of evidence of treatment for his claimed disability in the Veteran's service treatment records cannot, standing alone, serve as the basis for a negative opinion. 3. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any bilateral hip disability. The examiner must opine whether it is at least as likely as not related to an in-service injury, event, or disease, to include an injury during jump school. If arthritis is diagnosed, the examiner must opine whether it at least as likely as not (1) began during active service, (2) manifested within one year after discharge from service, or (3) was noted during service with continuity of the same symptomatology since service. The examiner must address the Veteran’s contentions as set out in the September 2016 examination report. 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. For purposes of this examination, the Veteran’s reports of an injury during jump school should be accepted as credible. The absence of evidence of treatment for his claimed disability in the Veteran's service treatment records cannot, standing alone, serve as the basis for a negative opinion. 4. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any bilateral ankle disability. The examiner must opine whether it is at least as likely as not related to an in-service injury, event, or disease, to include an injury during jump school. If arthritis is diagnosed, the examiner must opine whether it at least as likely as not (1) began during active service, (2) manifested within one year after discharge from service, or (3) was noted during service with continuity of the same symptomatology since service. The examiner must address the Veteran’s contentions as set out in the September 2016 examination report. 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. For purposes of this examination, the Veteran’s reports of an injury during jump school should be accepted as credible. The absence of evidence of treatment for his claimed disability in the Veteran's service treatment records cannot, standing alone, serve as the basis for a negative opinion. 5. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any bilateral foot disability, other than pes planus. The examiner must opine whether it is at least as likely as not related to an in-service injury, event, or disease, to include an injury during jump school. If arthritis is diagnosed, the examiner must opine whether it at least as likely as not (1) began during active service, (2) manifested within one year after discharge from service, or (3) was noted during service with continuity of the same symptomatology since service. The examiner must address the Veteran’s contentions as set out in the September 2016 examination report. 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. For purposes of this examination, the Veteran’s reports of an injury during jump school should be accepted as credible. The absence of evidence of treatment for his claimed disability in the Veteran's service treatment records cannot, standing alone, serve as the basis for a negative opinion. M. HYLAND Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Harrigan Smith The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.