Citation Nr: 21002261 Decision Date: 01/13/21 Archive Date: 01/13/21 DOCKET NO. 14-01 969 DATE: January 13, 2021 REMANDED Entitlement to service connection for a low back disability is remanded. Entitlement to service connection for a right knee disability is remanded. REASONS FOR REMAND The Veteran served on active duty from May 2004 to May 2010. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a March 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In June 2015, the Veteran testified at a video conference hearing before a Veterans Law Judge (VLJ). A transcript of the hearing is of record. By letter dated in May 2018, the Board informed the Veteran that the VLJ who conducted the June 2015 hearing is no longer at the Board and offered him the opportunity to testify at another hearing before a different VLJ. The Veteran subsequently informed the Board in May 2018 that he did not wish to attend another Board hearing. The case was remanded for further development in September 2015 and May 2018. That development has been completed, and the case has since been returned to the Board for appellate review. 1. Entitlement to service connection for a low back disability is remanded. The service treatment records document complaints of low back pain in December 2007 after moving heavy objects. A physical examination was normal, and the Veteran was diagnosed with lumbago, likely self-limiting musculoskeletal pain. He was prescribed anti-inflammatories and Flexeril. There is no record of any follow-up treatment during the remainder of his military service, although lumbago continued to be noted on the problem list. A March 2010 physical examination was normal. In February 2011, during a VA general medical examination, the Veteran reported continued intermittent low back pain since the 2007 injury. He described the pain as sharp, intermittent pain, mostly at night, occurring seven or eight times per month. He was taking ibuprofen with moderate relief. A physical examination was normal and x-rays of the lumbar spine were unremarkable. He was diagnosed with a lumbar spine strain. See February 2011 VA examination report. The Veteran has continued to endorse ongoing intermittent low back pain since the 2007 in-service injury. He was afforded a VA examination in connection with the claim for service connection for a low back disability in December 2011. The examiner diagnosed the Veteran with lumbago and noted the reported history of acute onset of low back pain after lifting heavy objects, with an episodic course since onset with increasing intensity and frequency of exacerbations. The examiner opined that his current low back disability is less likely as not related to the injury in service, explaining that the service treatment records do not document objective findings consistent with a high energy injury to the soft tissue or osseous structures of the lumbar spine, such as fracture or dislocation. In the absence of such findings a post-traumatic or chronic inflammatory process would be less likely than not. Moreover, the examiner noted that the Veteran had less than ten years of active service and any microtrauma he sustained during active duty service, even in the aggregate, would be insufficient to initiate and sustain a post-traumatic or chronic inflammatory process, since the literature suggests a 10-year exposure as the threshold value. Furthermore, the examiner noted that his radiographs did not reveal advanced degenerative changes and were therefore inconsistent with a post-traumatic process. See December 2011 VA examination report. On appeal, the Board found the December 2011 VA examination to be inadequate, as the examiner failed to discuss the in-service diagnosis of lumbago in December 2007. She also failed to analyze whether the Veteran’s symptoms continued after service. Therefore, the matter was remanded for another VA examination and medical opinion. See September 2015 Board decision. Following remand, another VA examination was performed in September 2015. The September 2015 examiner noted the Veteran’s reported history of hurting his back in 2007 while helping a friend move. He reported low back pain ever since the in-service injury, approximately once a month for a few days. The September 2015 examiner found no current diagnosis of a back disability. The examiner explained that he was diagnosed with lumbago, likely self-limiting, during service with no follow-up treatment. Lumbago is a general medical term for back pain. His physical examination and radiographs were normal. The examiner acknowledged the complains of ongoing back pain but stated that there was no objective evidence of a chronic back disability. See September 2015 VA examination report. In October 2015, the Veteran complained of acute back pain after bending over to pick something up. He was treated at the emergency department and admitted overnight. An MRI revealed two early vertebral disc herniations, one at L3-4 and the other at L4-5. There was no obvious nerve compression. He was diagnosed with a herniated disc causing acute on chronic back pain and discharged with pain medication and muscle relaxers. See October 2015 VA treatment records. In May 2018, the Board remanded the matter for an addendum medical nexus opinion, noting that soon after the September 2015 VA examination during which the examiner found no objective evidence of a chronic back disability, the Veteran was hospitalized overnight for back pain and an MRI showed spine disc degeneration. See May 2018 Board decision. The September 2015 examiner issued an addendum opinion in September 2019. He noted the October 2015 hospitalization for severe low back pain and the MRI showing disc herniations. The examiner opined that the Veteran’s back disability is less likely than not related to service, explaining that there is no radiographic or clinical evidence that it manifested during service. He stated that the December 2007 diagnosis of lumbago was likely an injury of the soft tissues since there was no evidence of injury, fracture, or trauma on radiographs, and the 2015 MRI noted only the early herniated discs and no old traumatic changes. See September 2019 VA addendum medical opinion. The September 2015/September 2019 VA examiner failed to address the Veteran’s contentions regarding continuing low back pain since the December 2007 in-service injury. The Veteran is competent to report symptoms such as low back pain. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (holding that a veteran’s statement is competent evidence as to events that are capable of lay observation); Layno v. Brown, 6 Vet. App. 465, 469 (1994) (holding that a veteran’s statements are competent evidence of what comes to him/her through his/her senses). Nor did the examiner consider the Veteran’s allegations regarding the physical nature of his job duties as an aircraft mechanic. See June 2015 Board hearing transcript (testifying that his job involved a lot of heavy lifting and maneuvering into tight spaces on aircraft); November 2020 appellate brief. Therefore, the Board finds that an additional medical opinion is needed to determine the nature and etiology of any current back disability that may be present. 2. Entitlement to service connection for a right knee disability is remanded. The service treatment records document complaints of right knee pain in March 2010. The Veteran reported that his right knee had been sore off and on for approximately three or four months, with increased pain and swelling after running that morning. A physical examination revealed effusion, pain with motion and tenderness on ambulation. There was no erythema, misalignment, crepitus, tenderness on palpation, instability or weakness. He had normal motion. He was diagnosed with tendonitis patellar, likely acute flare-up of patellar tendonitis. He was prescribed ice and anti-inflammatories and instructed to limit his activities over the weekend. See March 2010 service treatment records. There is no documentation of any follow-up treatment for the right knee during service. In February 2011, during a VA general medical examination, he reported continuing intermittent right knee pain since the in-service injury. He described the pain as occurring approximately once a month for several minutes, 6/10 on the pain scale, relieved by rest. He denied any locking, grinding, or giving way. A physical examination was normal and x-rays of the right knee were unremarkable except for two tiny and short linear densities within the pretibial soft tissues that appeared to represent some sort of retained foreign body. He was diagnosed with a right knee strain. See February 2011 VA examination report. He was afforded a VA examination in connection with his claim for entitlement to service connection for the right knee in December 2011. The examiner noted the reported history of acute onset of right knee pain while running in 2010. The Veteran indicated that the acute symptoms diminished with rest and anti-inflammatories; however, he described an episodic course since onset with increasing intensity and frequency of exacerbations. He also reported flare-ups with increased activity such as climbing stairs, jogging, jumping, and prolonged walking/standing. The examiner diagnosed the Veteran with chondromalacia of the right knee and opined that his right knee disability was less likely than not related to military service, explaining that the service treatment records do not document objective findings consistent with a high energy injury to the soft tissue or osseous structures of the right knee, such as fracture, internal derangement, or dislocation. In the absence of such findings a post-traumatic or chronic inflammatory process is less likely than not. The examiner also explained that the Veteran had less than ten years of active duty service and any microtrauma sustained during active duty, even in the aggregate, would be insufficient to initiate and sustain a post-traumatic or chronic inflammatory process, as the literature suggests a 10-year exposure as the threshold value. She also noted that the Veteran’s radiographs do not reveal advanced degenerative changes and are therefore inconsistent with a post-traumatic process. See December 2011 VA examination report. The Veteran continued to complain of right knee pain and was fitted for a sleeve in February 2012. See February 2012 VA treatment records. During the June 2015 Board hearing, the Veteran described continuing intermittent right knee pain since the injury in service. He denied any post-service injuries. See June 2015 Board hearing transcript. In September 2015, the Board remanded this issue for another medical opinion, finding that the December 2011 VA examination was inadequate as the examiner failed to discuss the March 2010 service treatment records showing complaints of right knee pain for the last three or four months, nor did she discuss the diagnosis of patellar tendonitis during service. The examiner also failed to analyze whether the Veteran’s in-service symptoms and diagnosis continued after service. See September 2015 Board decision. Following remand, another VA examination was performed in September 2015. The Veteran reported a history of a right knee injury while running in service with occasional continuing right knee pain in the same spot, occurring every few months for approximately one day. A physical examination was normal. The examiner opined that there was no evidence of any chronic right knee disability, explaining that patellar tendonitis is inflammation of the patellar tendon and is typically self-limiting. He found no evidence that the disease persisted and became a chronic disability. The examiner acknowledged the reports of episodic knee pain but stated that the examination and radiographs were normal. The examiner found no evidence of a chronic right knee disability. See September 2015 VA examination report. The issue was remanded again in May 2018. The Board found that the September 2015 examiner concluded that the Veteran did not have a chronic right knee disability but failed to address the post-service diagnosis of right knee chondromalacia in December 2011. The service treatment records document complaints of right knee pain for the last three or four months in March 2010, with recent increased pain and swelling and a diagnosis of patellar tendonitis, noted to likely be an acute flare-up. The Veteran alleged ongoing right knee problems since service. Therefore, the matter was remanded for an addendum VA medical opinion. See May 2018 Board decision. An addendum medical opinion was issued in September 2019. The examiner reiterated that there was no evidence of a chronic right knee disability related to service. The examiner explained that the September 2015 VA examination was normal with no evidence of a chronic knee condition. Subsequent records are negative for any new knee complaints, imaging studies or evaluation. The examiner found no evidence to change his opinion. The examiner stated that the service treatment records show complaints of right knee pain in March 2010 and a diagnosis of patellar tendonitis, which refers to inflammation of the patellar tendon and is typically self-limiting. See September 2019 VA addendum medical opinion. The examiner did not specifically address the December 2011 diagnosis of right knee chondromalacia, as instructed on remand. A remand by the Board confers on the claimant, as a matter of law, a right to compliance with the remand orders. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Once VA undertakes the effort to provide an examination when developing a claim, the exam must be an adequate one. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Nor did the September 2015/September 2019 examiner consider the Veteran’s lay statements regarding ongoing right knee pain since service, or his allegations regarding the physical nature of his job duties working in aircraft maintenance including bending, kneeling and lifting. As stated above, the Veteran is competent to report readily observable symptoms such as knee pain. Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). Therefore, the Board finds that an additional VA examination and medical opinion are needed to determine the nature and etiology of any right knee disability that may be present. The matters are REMANDED for the following action: 1. The AOJ should request that the Veteran provide the names and addresses of any and all healthcare providers who have provided treatment for his back and right knee. After acquiring this information and obtaining any necessary authorization, the AOJ should obtain and associate any outstanding records with the claims file. The AOJ should also secure any outstanding VA medical records. 2. After the above development has been completed, the Veteran should be afforded a VA examination to determine the nature and etiology of any back disability that may be present. Any studies, tests, and evaluations deemed necessary by the examiner should be performed. Is it at least as likely as not that the Veteran has a current back disability that is causally or etiologically related to his military service, to include any injury or symptomatology therein? In answering this question, attention is invited to lay statements from the Veteran regarding the December 2007 injury during service and complaints continuing pain since service, as well as the Veteran’s statements regarding the physical nature of his job duties in service. See June 2015 Board hearing transcript. A clear rationale for all opinions must be provided and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. The term “at least as likely as not” does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of a certain conclusion as it is to find against it. 3. After completing the preceding development, the Veteran should be afforded a VA examination to determine the nature and etiology of any right knee disability that may be present. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. a) Identify all right knee disabilities. If the Veteran does not have a current diagnosis associated with his symptoms, the examiner should state this with a fully reasoned explanation. b) For each diagnosis identified, is it at least as likely as not that the disability is causally or etiologically related to the Veteran’s military service, including his duties and any symptomatology therein? In answering question (b), attention is invited to the March 2010 service treatment records showing complaints of right knee pain over the previous three or four months, with recent increased pain and swelling and diagnosis of patellar tendonitis, likely an acute flare-up; the February 2011 VA examination diagnosing a right knee strain; the December 2011 VA examination diagnosing right knee chondromalacia; the Veteran’s reports of ongoing intermittent right knee pain since the injury in service and continuing since that time; and his job duties in service including bending, kneeling and heavy lifting. A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. The term “at least as likely as not” does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a certain conclusion is so evenly divided that it is as medically sound to find in favor of such a conclusion as it is to find against it. CHRISTOPHER A. WENDELL Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D.S. Chilcote, 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.