Citation Nr: 21002171 Decision Date: 01/12/21 Archive Date: 01/12/21 DOCKET NO. 16-63 654 DATE: January 12, 2021 REMANDED Entitlement to service connection for a lumbar spine disorder is remanded. Entitlement to service connection for a right knee disorder is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Marine Corps from March 1989 to October 1997, which includes verified Persian Gulf War service in the Southwest Asia theater of operations from February 1, 1991 to March 15, 1991. The Veteran also served on inactive duty in the U.S. Marine Corps Reserves from November 1997 to April 1998. This matter comes before the Board of Veterans’ Appeals (Board) on appeal of a June 2015 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). By way of background, the Veteran’s claims were initially before the Board on September 19, 2019. At this time, the Board denied the Veteran’s claim for a lower back disorder, granted the claim for tinnitus, and remanded the claim for bilateral knee disorders. The portion of the determination denying the Veteran’s claim for a lower back disorder was later vacated, pursuant to a Joint Motion for Partial Remand (JMPR) that was granted by the Court of Appeals for Veterans Claims (Court) on July 21, 2020. Meanwhile, the JMPR is did not address the claims for the knees, for those claims had been remanded by the Board and were therefore not before the Court; similarly, the granted claim for tinnitus is also beyond the scope of the JMPR, see Medrano v. Nicholson, 21 Vet. App. 165, 170 (2007). After the July 21, 2020 Court JMPR, the Veteran’s claim for a left knee disorder only was granted by the Agency of Original Jurisdiction (AOJ), see Rating Decision ( Aug. 12, 2020 ). As a result, the Veteran’s claim for service connection for a left knee disorder has been granted in full; therefore, it is no longer in appellate status at this time. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1977). The Board reminds the Veteran in passing that it he should disagree with the propriety of his initial rating, then a Notice of Disagreement as to it must be received within one year of that rating decision. The Veteran was issued a Supplemental Statement of the Case (SSOC) in August 2020, which discusses the Veteran’s claim for a right knee disorder only. See SSOC (Aug. 12, 2020). The Board now accordingly reasserts jurisdiction of the claims for service connection for a lower back disorder and a right knee disorder. 1. Entitlement to service connection for a lumbar spine disorder is remanded. By the terms of the JMPR, the now-vacated determination as to a lumbar spine disorder was based upon the AOJ’s previous failure to address medical evidence of record suggesting lower back pain as early as 2002. See JMPR (July 21, 2020), at Page 2; Medical Treatment Records ( June 28, 2002 ; July 5, 2002 ; Aug. 28, 2002 ) (rec’d May 6, 2019). For this reason, the Board remands so that the AOJ may procure an addendum opinion that considers all relevant post-service medical evidence of record. See McKinney v. McDonald, 28 Vet. App. 15, 30 (2016); Gilbert v. Derwinski, 1 Vet. App. 49, 52 (1990). See also Stegall v. West, 11 Vet. App. 268, 271 (1998). 2. Entitlement to service connection for a right knee disorder is remanded. After the Veteran’s claim for service connection for a right knee disorder was remanded, the Veteran most recently submitted to a VA examination in January 2020. See VA Exam ( Jan. 28, 2020 ). The Veteran’s diagnosis of a right knee strain was confirmed, albeit with an unknown date of diagnosis. See id. at Question No. 1b. Notwithstanding the above, the examiner concluded that because “The right knee diagnosis is less clear than on the left. Overall, the evidence for service connection falls below the threshold of at least as likely as not.” See id. at Question No. 15. The Board deems this opinion inadequate because it is bare and conclusory, in that it does not appear to sufficiently explain relevant bases for its conclusion. See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (“[A] medical opinion…must support its conclusion with an analysis the Board can consider and weigh against contrary opinion.”). The Board further notes that it cannot reconcile the examiner’s statement that “the right knee diagnosis is ‘less clear’ than on the left,” see VA Exam, supra, at Question No. 15 (quotation added) with the fact that the examiner diagnosed a right knee strain. See also Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018). Additionally, to the extent that the Veteran has offered lay statements attesting to in-service right knee pain and treatment for it, an addendum opinion should be procured to fully consider all such lay statements. For these reasons, the Board remands so that the AOJ may procure an addendum opinion. See also Stegall v. West, supra. The matters are REMANDED for the following action: 1. The Veteran should be given an opportunity to identify any outstanding private, VA treatment, inactive duty with line of duty determinations, or active duty records relevant to the claims on appeal, namely claims for a lumbar spine and right knee disorder. After obtaining any necessary authorization from the Veteran and his representative, all outstanding records, to include any VA treatment records, should be obtained. For private treatment records, make at least two (2) attempts to obtain records from any identified sources. If any such records are unavailable, inform the Veteran and his attorney, and afford them an opportunity to submit any copies in their possession. For federal records, all reasonable attempts should be made to obtain such records. VA medical records as of October 8, 2019 appear to be associated with the claims file, but no subsequent records after that date are of record. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 2. After the receipt of any outstanding records, schedule the Veteran for all appropriate VA examinations to determine the nature and etiology of the Veteran’s claimed lumbar spine and right knee disorders. A complete copy of the claims file, to include this remand, the Veteran’s complete service treatment records, and the Veteran’s complete medical treatment records, must be made available to the examiner. The need for a physical examination is left to the discretion of the examiner. The examiner is asked to respond to the following questions: (A) Identify all current right knee disorder(s) that have been present at any time since June 2015. If a right knee disorder is not diagnosed, the examiner should specifically explain why and reconcile with the January 2020 examiner’s findings of a right knee strain with unknown etiology. (B) For each diagnosed lumbar spine, is it at least as likely as not (50 percent or greater probability) that each such disorders had onset in service or is otherwise related to his active duty service? The examiner must specifically address the relevance, or lack thereof, of medical treatment records from the year 2002, in which the Veteran complained of back pain. These records are specifically identified by a Court JMPR from July 2020. (C) For each diagnosed right knee disorder, is it at least as likely as not (50 percent or greater probability) that each such disorder had onset in service or is otherwise related to his active duty service, to include 50-mile marches as a Marines Corp drill instructor? A rationale should be provided for all opinions offered. If it is not possible to provide a specific opinion regarding the above questions, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). (Continued on the next page)   The medical opinion must support the conclusions reached with an analysis that is adequate for the Board to consider and weigh against other evidence of record; medical opinions must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. If an opinion cannot be expressed without resort to speculation, ensure that the clinician so indicates and discusses why an opinion is not possible, to include whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. KRISTY L. ZADORA Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Michael B. Engle, Associate Counsel 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.