Citation Nr: 21000642 Decision Date: 01/05/21 Archive Date: 01/05/21 DOCKET NO. 17-17 066A DATE: January 5, 2021 REMANDED Entitlement to a rating in excess of 10 percent for limitation of flexion of the right leg is remanded. Entitlement to a rating in excess of 10 percent for right knee instability is remanded. Entitlement to service connection for cervical spondylosis (claimed as neck injury) is remanded. REASONS FOR REMAND The Veteran served on active duty from August 1983 to September 1987. In November 2018, the Veteran testified at a Board hearing. The transcript is of record. 1. Entitlement to a rating in excess of 10 percent for limitation of flexion of the right leg is remanded. 2. Entitlement to a rating in excess of 10 percent for right knee instability is remanded. In August 2020, the U.S. Court of Appeals for Veterans Claims remanded the issue on appeal back to the Board to remand this case, in part, for the scheduling of a VA examination to determine the current severity of the Veteran’s service-connected right knee and leg disability. The decision expressly required the VA examiner to indicate whether, and to what extent, the Veteran experiences likely range of motion loss to the right knee and leg due to pain and/or any other symptoms noted above during flare-ups and/or repeated use, based on examination results and the Veteran’s documented history and assertions. To the extent possible, the examiner was requested to express any such range of motion measurements during flare ups or when used repeatedly over a period of time. The prior examinations, September 2013 and April 2018, were found to be inadequate as the examiner provide an insufficient explanation for why the estimated range of motion measurements during flare ups could not be provided. A remand is required to schedule a VA examination to comply with the CAVC remand. 3. Entitlement to service connection for cervical spondylosis (claimed as neck injury) is remanded. In June 2019, the Board remanded the cervical spondylosis (claimed as neck injury) claim for a medical examination and opinion. The remand instructions specifically directed that the examiner must consider and address the Veteran’s lay statements regarding his in-service injury. Specifically, the Veteran reported his symptoms and treatment history due to his in-service injury with continued symptoms to the present. The Veteran was afforded a VA examination in February 2020. The examiner opined that it was less likely than not that the Veteran's neck disability was related to service as there was no documentation of an in-service injury or condition and the pain did not begin until 2009. See February 2020 VA examination report. However, the examiner did not address the Veteran’s lay statements of in-service symptomology in formulating the etiology opinion as set out in the remand. The examiner improperly discounted lay testimony and relied primarily on the absence of contemporaneous medical records to render a negative nexus opinion. Such an opinion is inadequate for adjudicative purposes. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (2006). Thus, a new examination is required. The matters are REMANDED for the following action: 1. In remanding this case, the Board makes no credibility determination, expressed or implied, at this juncture. 2. Undertake appropriate development to obtain, and associate with the record to the extent possible, any pertinent outstanding private treatment record or records as well as any outstanding VA treatment records. All efforts to obtain such records should be documented in the record. 3. The Veteran should be scheduled for an examination by an appropriately qualified health care professional using the most recent Disability Benefits Questionnaire for the service connected limitation of flexion of the right leg and right knee instability. The claims file must be reviewed and the review noted in the report. A complete medical history should be obtained. All clinical findings should be reported in detail. To the extent possible, the examiner should identify any evidence that might be relevant in estimating loss of range of motion and loss of function during flare-ups in the Veteran’s right knee and leg. The examiner must express an opinion estimating loss of range of motion and estimating loss of functional ability during repetitive use and flare-ups in the right knee. The examiner is advised that an opinion must be based on estimates derived from information procured from relevant sources, including the lay statements of the Veteran. An opinion stating merely that the examiner is unable to provide the requested information as the Veteran was not examined following repeated use over a period of time is insufficient. The right knee must be tested on both active and passive motion, and in-weight bearing and non-weight bearing positions, or the examiner must explain why such testing could not or should not be done. 4. Once the development in paragraph 2 above is completed, obtain an addendum opinion to the February 2020 VA examination report to determine the nature and etiology of any neck disability. The evidentiary record, including a copy of this remand, must be made available to and reviewed by the examiner. The examination should include a notation that this record review took place. Another examination of the Veteran should only be scheduled if this is required to obtain the requested opinions. (a.) Is it at least as likely as not that the Veteran’s neck disability was incurred in, or is otherwise related to, the Veteran’s active service? In rendering this opinion, the examiner is advised that the Veteran is competent to report his symptoms and history. Such reports must be acknowledged and considered in formulating any opinion. If the examiner rejects the Veteran’s reports, he or she must provide an explanation for such rejection. The examiner is not to improperly discount the Veteran’s lay statements or mistakenly rely on an absence of medical evidence in the record to support his or her conclusions. (Continued on the next page)   The complete rationale for all opinions should be set forth and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. If a negative opinion is offered based primarily on the length of time between separation and the current diagnosis the examiner should explain the medical significance of this fact, i.e., why this is indicative that any current neck condition is not related to service. G. A. WASIK Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Hughes 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.