Citation Nr: 21002806 Decision Date: 01/15/21 Archive Date: 01/15/21 DOCKET NO. 12-18 484 DATE: January 15, 2021 REMANDED Entitlement to service connection for a neck disability is remanded. Entitlement to service connection for a right knee disability is remanded. Entitlement to service connection for a left knee disability is remanded. REASONS FOR REMAND The Veteran served on active duty in the U.S. Marine Corps from June 1972 to July 1974. These matters come before the Board of Veterans’ Appeals (Board) on appeal from an August 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veterans Law Judge (VLJ) at an April 2014 videoconference hearing. A transcript of this hearing is of record. This case has an extensive procedural history. Most recently, the case was brought before the Board in August 2017, at which time, the Board denied service connection for a right shoulder disability, a back disability, a neck disability, a right knee disability, and a left knee disability. The Veteran appealed the August 2017 decision to the U.S. Court of Appeals for Veterans Claims (Court). In a May 2018 Order of the Court granting a May 2018 Joint Motion for Remand (JMR), the parties agreed to vacate the August 2017 Board decision and remand the matters for compliance with the terms of the JMR. In December 2018, the Board remanded the issues on appeal for additional development. As discussed below, there has not been substantial compliance with the December 2018 remand instructions, so the matters must be remanded. See Stegall v. West, 11 Vet. App. 268 (1998); D’Aries v. Peake, 22 Vet. App. 97, 105 (2008). In a June 2020 rating decision, the Veteran was granted service connection for degenerative arthritis with intervertebral disc syndrome; and was granted service connection for residuals of the right (major) shoulder acromioclavicular joint separation, issues that had been on appeal. As these issues have been resolved by a full grant of benefits, and the Veteran has not submitted any documents indicating that he is not satisfied with the decision, the Board finds that these issues are no longer part of the current appeal. See 38 C.F.R. § 19.26(d). The record reflects that you received an October 2020 letter indicating that you could request a virtual hearing instead of waiting for a travel board hearing. In response, the Veteran chose to have a virtual hearing. In November 2020, the Veteran testified before the undersigned VLJ at a virtual hearing. A transcript of this hearing is of record. 1. Entitlement to service connection for a neck disability is remanded. 2. Entitlement to service connection for a right knee disability is remanded. 3. Entitlement to service connection for a left knee disability is remanded. In a December 2018 remand, the Board instructed the RO to obtain an etiological opinion addressing whether the Veteran’s current neck, right knee, and left knee disabilities are etiologically related to his active duty service, to include his reported in-service jeep accident. The VA examiner was specifically directed to address the Veteran’s statements regarding his in-service jeep accident and his resulting injuries. The Board finds that the VA examiner did not comply with the remand instructions. In February 2020 VA opinions, the VA examiner opined that the Veteran’s neck disability and bilateral knee disability were less likely than not incurred in or caused by service. In making that determination, the VA examiner relied on the findings that available service treatment records did not mention neck pain or knee problems, that a 1984 VA examination did not discuss neck or knee problems, and that there were no treatment records available from 1984 to 2009. The VA examiner did not discuss the Veteran’s specific contentions regarding the circumstances of his in-service jeep accident, his resultant injuries, and the continuity of symptoms based on those injuries since service. Moreover, in the rationale, the VA examiner emphasized the lack of in-service evidence of neck and knee complaints as a basis for the unfavorable opinion, despite the record clearly indicating that complete service treatment records were unavailable. Because the February 2020 VA examiner did not take into account the Veteran’s lay statements regarding the nature of his in-service jeep accident and his resultant injuries, as directed by the December 2018 remand, and the VA examiner relied on incomplete service treatment records to support the opinion, the Board finds that the February 2020 VA opinion is both inadequate and did not substantially comply with December 2018 remand instructions. Accordingly, another remand is required to obtain supplemental VA opinions. See Stegall v. West, 11 Vet. App. 268 (1998); Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Notably, since the February 2020 VA examination, VA has granted service connection for the Veteran’s back disability and right shoulder disability as a result of his in-service jeep accident. The Veteran has made multiple statements, including testimony at his most recent November 2020 Board hearing, that his neck disability, right knee disability, and left knee disability all stemmed from that same in-service jeep accident. Accordingly, the Board finds that with regard to the Veteran’s service connection claims for a neck disability, a right knee disability, and a left knee disability, the occurrence of the in-service jeep accident has been established. The matters are REMANDED for the following actions: 1. Obtain all outstanding treatment records for the Veteran’s neck disability, right knee disability, and left knee disability that are not currently of record. 2. Obtain an addendum opinion from an appropriately qualified clinician regarding whether the Veteran’s current neck and bilateral knee disabilities are at least as likely as not related to his active duty service, to include his 1973 jeep accident. In providing the above opinion, the examiner must note that the occurrence of the 1973 jeep accident has been established. The examiner must address this in-service jeep accident and the Veteran’s lay statements regarding the onset and continuity of his neck and bilateral knee symptoms. A complete rationale with discussion of medical literature for any opinion expressed must be provided. If an opinion cannot be expressed without resort to speculation, discuss why this is the case. LESLEY A. REIN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Journet Shaw, 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.