Citation Nr: 21004459 Decision Date: 01/27/21 Archive Date: 01/27/21 DOCKET NO. 13-06 419A DATE: January 27, 2021 REMANDED Entitlement to service connection for a cervical spine disability is remanded. Entitlement to service connection for a bilateral knee disability is remanded. REASONS FOR REMAND The Veteran served on active duty with the United States Army from February 1967 to June 1970. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a July 2011 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veterans Law Judge (VLJ) at a hearing in April 2016. This case was previously before the Board in September 2016 and July 2018, when it was remanded for development. The case has been returned to the Board for further appellate review. 1. Entitlement to service connection for a cervical spine disability is remanded. The prior Board remand directed the RO to obtain an opinion regarding whether the current cervical spine disability is related to the service-connected TMJ. The March 2019 VA opinion and September 2019 VA addendum opinion inadequately address the relationship, noting only that they are unrelated because the Veteran’s 1980 x-rays did not show a neck disability. Therefore, a remand is necessary to obtain an opinion addressing all theories of entitlement of the Veteran’s claim. 2. Entitlement to service connection for a bilateral knee disability is remanded. The prior Board remand directed the RO to obtain an opinion addressing not just degenerative joint disease of the right and left knees, but also the other diagnoses found in the record, including a patellar defect noted in an October 2009 private treatment note and a torn meniscus for which the Veteran underwent surgery in 2010 at a VA medical facility. Rather than discuss these other diagnoses in the context of the Veteran’s complaints of ongoing knee pain since service, the VA examiner noted only that they were made years after separation. The examiner based the negative etiology opinion on the fact the Veteran did not seek treatment for knee pain until 2009, and impermissibly dismissed the Veteran’s reports of pain on the grounds that they were subjective. See Dalton v. Nicholson, 21 Vet. App. 23, 39-40 (2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (that reports of symptomatology are not supported by contemporaneous clinical evidence does not render them inherently not credible). This opinion is therefore inadequate, and another remand is necessary to obtain an opinion properly addressing the Veteran’s assertions. The matters are REMANDED for the following action: 1. Forward the claims file to an appropriate clinician to determine whether the current cervical spine disability is related to the Veteran’s military service. Following review of the claims file, the examiner should opine whether it is at least as likely as not (50 percent or greater probability) that the disability began in or is otherwise caused by the Veteran’s active service. The examiner should also opine whether it is at least as likely as not (50 percent or greater probability) that the cervical spine disability is (a) caused by; or (b) aggravated (i.e., worsened beyond the normal progression of the disease) by the Veteran’s service-connected TMJ and/or migraine headaches. If aggravation is found, the examiner must attempt to establish a baseline level of severity of the cervical spine disability prior to aggravation by the service-connected disabilities. Please note, causation and aggravation are separate concepts and must be addressed independently. The examiner must specifically address the Veteran’s lay statements regarding ongoing neck pain since service, which are deemed credible despite not being reflected in treatment records continually after service. All findings must be reported in detail and all opinions must be accompanied by a clear rationale. If any of the above issues cannot be resolved without resorting to speculation, then a detailed medical explanation as to why this is so must be provided. 2. Forward the claims file to an appropriate clinician to determine whether any current right or left knee disability is related to the Veteran’s military service. Following review of the claims file, the examiner should identify all current knee disabilities found. If the examiner determines that any diagnosis made in the record is not a current disability, the examiner should opine why that is so, such as whether that condition has resolved or the diagnosis was made in error. For each current knee disability identified, even if now resolved, the examiner should opine whether it is at least as likely as not (50 percent or greater probability) that the disability began in or is otherwise caused by the Veteran’s active service. The examiner must specifically address the Veteran’s lay statements regarding ongoing knee pain since service, which are deemed credible despite not being reflected in treatment records continually after service. All findings must be reported in detail and all opinions must be accompanied by a clear rationale. If any of the above issues cannot be resolved without resorting to speculation, then a detailed medical explanation as to why this is so must be provided. M. HYLAND Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Josey, 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.