Citation Nr: 21003254 Decision Date: 01/21/21 Archive Date: 01/21/21 DOCKET NO. 16-60 313 DATE: January 21, 2021 REMANDED Entitlement to service connection for a lumbar spine disability is remanded. Entitlement to service connection for a left knee disability is remanded. Entitlement to service connection for a left leg disability is remanded. REASONS FOR REMAND The Veteran served in the United States Navy as a torpedoman, from December 1976 to December 1980. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a May 2013 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Little Rock, Arkansas. The Board previously remanded the Veteran’s claims in April 2020 to obtain medical opinions regarding the Veteran’s contentions that he injured his knee, leg, and back playing basketball, recalling that he was on crutches for a period of thirty days or more following the injury. As a preliminary matter, the Board again notes that the Veterans Service Organization representing the Veteran withdrew its representation due to office closure. See an October 7, 2019 letter from the Military Order of the Purple Heart. Should the Veteran wish to secure new representation from another Veterans Service Organization, attorney or agent, he may do so by filing a completed VA Form 21-22 or 21-22a. The Veteran’s service treatment records are not available for review. See May 2013 Formal Finding of Unavailability of Federal Records. In cases such as this, where the Veteran’s service records are unavailable, it is especially incumbent on VA to carefully consider the Veteran’s contentions. See O’Hare v. Derwinski, 1 Vet. App. 365 (1991); Moore v. Derwinski, 1 Vet. App. 401, 406 (1991). Relatedly, the Veteran has described treatment at the Little Rock, Arkansas VA Medical Center in the 1980’s. The RO has determined that these records do not exist. See July 2020 Supplemental Statement in Support of Claim. In connection with the April 2020 remand, the Veteran was examined in July 2020. The examiner premised his negative nexus opinions exclusively on the absence of service treatment records documenting left knee, left leg, and lumbar spine injuries while in service, which as noted above, are missing. In doing so, the examiner did not demonstrate consideration of the Veteran’s contention that he injured his left leg while playing basketball in service and required crutches for thirty days or more following the injury, as was requested in the prior Board remand. A remand by the Board of Veterans Appeals confers on the veteran or other claimant, as a matter of law, the right to compliance with the remand orders. Stegall v. West, 11 Vet. App. 268, 271 (1998). Because of this, the Board finds that another remand is necessary to consider the Veteran’s contentions regarding in-service injury. The matters are REMANDED for the following action: 1. Obtain medical opinions addressing the etiology of the Veteran’s claimed back, left knee and left leg disabilities. The claims file should be sent to, and reviewed by the opinion provider. If in the opinion providers’ judgment, answers to the questions below cannot be provided without an in-person or virtual examination or interview, such should be scheduled. After review of the record, and examination if necessary, the reviewing clinician(s) should respond to the following, as appropriate: (a.) Is it at least as likely as not (50 percent or greater probability) that the Veteran has a lumbar spine disability or disabilities that had onset in, or are otherwise related to injuries sustained during his period of active service? In answering the question above, the reviewing clinician should note that the Veteran’s service treatment records are missing, and therefore, a negative opinion should not be based exclusively on an absence of documented in-service care. The reviewing clinician must address the Veteran’s contention that his disability is related to an in-service basketball injury which led to the Veteran using crutches for thirty days or more. In this connection, the clinician should address whether the nature of the Veteran’s disabilities are medically consistent with the injury as described by the Veteran. (b.) Is it at least as likely as not (50 percent or greater probability) that the Veteran’s has left knee and/or left leg disabilities that had onset in, or are otherwise related to injuries sustained during the Veteran’s period of active service? In answering the question above, the reviewing clinician should note that the Veteran’s service treatment records are missing, and therefore, a negative opinion should not be based exclusively on an absence of documented in-service care. The reviewing clinician must address the Veteran’s contention that his disabilities are related to an in-service basketball injury which led to the Veteran using crutches for thirty days or more. In this connection, the clinician should address whether the nature of the Veteran’s disabilities are medically consistent with the injury as described by the Veteran. 2. Thereafter, readjudicate the issues on appeal. V. Chiappetta Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Hennessy, 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.