Citation Nr: 21005032 Decision Date: 01/28/21 Archive Date: 01/28/21 DOCKET NO. 20-11 927 DATE: January 28, 2021 ORDER The May 7, 2020 Board decision that denied entitlement to service connection for a cervical spine disorder is vacated. The May 7, 2020 Board decision that denied entitlement to service connection for a left hip disorder is vacated. The May 7, 2020 Board decision that denied entitlement to service connection for a right hip disorder is vacated. The May 7, 2020 Board decision that denied entitlement to service connection for a left thigh disorder is vacated. The May 7, 2020 Board decision that denied entitlement to service connection for a right thigh disorder is vacated. REMANDED Entitlement to service connection for a cervical spine disorder is remanded. Entitlement to service connection for a left hip disorder is remanded. Entitlement to service connection for a right hip disorder is remanded. Entitlement to service connection for a left thigh disorder is remanded. Entitlement to service connection for a right thigh disorder is remanded. FINDINGS OF FACT 1. On May 7, 2020, the Board issued a decision denying entitlement to service connection for cervical spine, left hip, right hip, left thigh, and right thigh disorders. 2. In September 2020, the Veteran’s attorney submitted a Motion for Reconsideration. 3. The Board finds that it is appropriate to grant the motion for reconsideration and adjudicate the claims. CONCLUSIONS OF LAW 1. The criteria for vacating the Board decision issued on May 7, 2020 that denied entitlement to service connection for a cervical spine disorder have been met. 38 U.S.C. § 7104(a); 38 C.F.R. § 20.904. 2. The criteria for vacating the Board decision issued on May 7, 2020 that denied entitlement to service connection for a left hip disorder have been met. 38 U.S.C. § 7104(a); 38 C.F.R. § 20.904. 3. The criteria for vacating the Board decision issued on May 7, 2020 that denied entitlement to service connection for a right hip disorder have been met. 38 U.S.C. § 7104(a); 38 C.F.R. § 20.904. 4. The criteria for vacating the Board decision issued on May 7, 2020 that denied entitlement to service connection for a left thigh disorder have been met. 38 U.S.C. § 7104(a); 38 C.F.R. § 20.904. 5. The criteria for vacating the Board decision issued on May 7, 2020 that denied entitlement to service connection for a right thigh disorder have been met. 38 U.S.C. § 7104(a); 38 C.F.R. § 20.904. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Marine Corps (USMC) from February 1966 to August 1966 and from March 1974 to March 1976. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a November 2018 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). Jurisdiction of this appeal is currently with the St. Paul Pension Center RO. Vacatur The Board may vacate an appellate decision at any time upon request of the appellant or his or her representative, or on the Board’s own motion, when an appellant has been denied due process of law or when benefits were allowed based on false or fraudulent evidence. 38 U.S.C. § 7104(a); 38 C.F.R. § 20.904. The Board is vacating its May 7, 2020 decision as to the issues of entitlement to service connection for cervical spine, left hip, right hip, left thigh, and right thigh disorders. Specifically, the May 7, 2020 Board decision denied the Veteran’s claims for service connection based on a finding that “no competent, credible evidence has been received showing a nexus between the claimed disorders and active service. The only evidence of the claimed disorders during active service are the Veteran’s own statements.” Accordingly, the May 7, 2020 Board decision determined that the preponderance of the evidence was against the claims, and entitlement to service connection was denied. Subsequently, it a September 2020 Motion for Reconsideration, the Veteran’s attorney argues that the May 2020 Board did not consider treatise evidence submitted by the Veteran via a November 2019 notice of disagreement, showing that trivial injuries and repetitive stress on joints could cause the Veteran’s disabilities; that intense physical activities like those performed by the Veteran in service could cause musculoskeletal injuries; and that veterans are more prone to arthritis. Additionally, his attorney argues that in the treatise, additional findings support the Veteran’s claims that his current disabilities are etiologically related to his active service. In other words, the Veteran’s attorney argues that the treatise evidence submitted is sufficient to trigger an examination under McLendon. McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). The Board finds that the Veteran was not afforded full due process rights as provided by the applicable regulations. See 38 C.F.R. § 3.103; Cushman v. Shinseki, 576 F.3d 1290, 1298 (Fed. Cir. 2009) (due process protections apply to disability compensation proceedings before VA). Specifically, the Board finds the May 2020 Board did not adequately consider the treatise information submitted by the Veteran and his attorney. Accordingly, the Board finds that the May 2020 decision addressing the issues of entitlement to service connection for cervical spine, left hip, right hip, left thigh, and right thigh disorders is vacated. The claims will then be considered de novo. REASONS FOR REMAND Service Connection Claims The Veteran contends that his cervical spine disorder, left hip disorder, right hip disorder, left thigh disorder, and right thigh disorder are the result of the rigors he experienced during active service. Specifically, the Veteran and his attorney assert that trivial injuries and repetitive stress on joints could cause the Veteran’s disabilities, that intense physical activities like those performed by the Veteran in service could cause musculoskeletal injuries and that veterans are more prone to arthritis as indicated in treatise evidence submitted. Service treatment records are negative for any complaints, treatments or diagnoses related to a cervical spine disorder, a hip disorder and/or a thigh disorder. The Veteran’s examinations during service were consistently shown to be normal with respect to his joints. A March 1976 service discharge examination found the Veteran’s spine and lower extremities to be normal. Post-service VA and private treatment records show multiple diagnoses that include cervical myelopathy, restless leg syndrome, gout, neck pain and chronic pain disorder. The record shows that the Veteran first complained of restless leg syndrome in April 2011, neck pain/cervicalgia in August 2012, and gouty arthropathy in February 2012. A diagnosis of cervical myelopathy was first confirmed after examination in December 2016. However, the Board notes that a November 2013 VA treatment record indicates the Veteran denied joint pain or joint swelling. In a December 2016 private treatment note, the Veteran reported a six month history of neck pain. In the instant case, the Board finds evidence has been received showing that a nexus may potentially exist between the claimed disorders and active service. Specifically, the Veteran asserts that the physical rigors of his active service resulted in his disabilities, and has submitted treatise evidence in support of his claims. VA etiology opinions have not been obtained. In light of the foregoing, the Board concludes that the Veteran should be afforded VA examinations to determine the nature and etiology of the claimed cervical spine, left hip, right hip, left thigh, and right thigh disorders. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). The matters are REMANDED for the following action: 1. The Veteran should be given the opportunity to identify any outstanding private or VA treatment records relevant to the claim on appeal. After obtaining any necessary authorization from the Veteran, all outstanding records should be obtained, to include updated VA treatment records. 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 representative and afford him an opportunity to submit any copies in his possession. For federal records, all reasonable attempts should be made to obtain such records. 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. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of his cervical spine, left hip, right hip, left thigh, and right thigh disorders. Any and all indicated evaluations, studies and tests deemed necessary by the examiner should be accomplished. The need for in-person examination is left to the discretion of the examiner. The examiner should respond to the following questions: Is it at least as likely as not (50 percent or greater probability) that the Veteran’s current cervical spine, left hip, right hip, left thigh, and right thigh disorders had their onset in service or is otherwise related to his active duty? The examiner should specifically address the treatise evidence submitted by the Veteran and his attorney in November 2019, indicating that trivial injuries and repetitive stress on joints could cause the Veteran’s disabilities, that intense physical activities like those performed by the Veteran in service could cause musculoskeletal injuries and that veterans are more prone to arthritis. 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). The medical opinions must support the conclusions reached with an analysis that is adequate 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 Mariah N. Sim, 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.