Citation Nr: 21061821 Decision Date: 10/05/21 Archive Date: 10/05/21 DOCKET NO. 18-46 074A DATE: October 5, 2021 REMANDED Entitlement to compensable disability rating for right knee is remanded. Entitlement to service connection for back disability including secondary to the Veteran's service-connected right knee disability is remanded. Entitlement to service connection for a sinus disability, to include sinusitis, allergic rhinitis, and deviated septum is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from February 1970 to January 1972. This matter is before the Board of Veterans' Appeals (Board) on appeal of a February 2017 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In a January 2020 decision, the Board denied the Veteran's claim for service connection for sinusitis, finding that he did not have a current diagnosis of sinusitis. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). Subsequently, the parties to the action submitted a Joint Motion for Partial Remand (JMPR) which was adopted by the Court in an Order issued in October 2020. In the October 2020 JMPR, the parties agreed that the Board failed to address the nature of the Veteran's condition, and specifically the diagnoses of allergic rhinitis and deviated septum, when adjudicating his claim. See Clemons v. Shinseki, 23 Vet. App. 1, 6 (2009). In January 2020 the Board remanded this appeal for more development. In March 2021, the Board remanded this appeal for more development. As the Agency of Original Jurisdiction (AOJ) did not substantially comply with the remand, another remand regrettably is required. Stegall v. West, 11 Vet. App. 268, 271 (1998). 1. Entitlement to compensable disability rating for right knee is remanded. The Veteran seeks a compensable rating for his knee disability. The Board notes that there appear to be outstanding VA treatment records that may be pertinent to the issues on appeal. Specifically, in June 2021 the Veteran submitted authorizations to disclose information from the VA clinic in Mesa and then in Gilbert from July 2013 to April 2014 and from 2014 to 2015. In addition, the Veteran indicated that he received treatment from the VA hospital in Phoenix Arizona from 2014 to 2016. The private medical records retrieval center indicated that the records are not private records. There have been no additional VA records associated with the Veteran's claim file or an explanation of why these records have not been associated with the Veteran's claim file. Thus, a remand is necessary to acquire these records. 2. Entitlement to service connection for back disability including secondary to the Veteran's service-connected right knee disability is remanded. The Veteran contends that his back disability is related to him falling off exercise bars during physical training at the same time he injured his service-connected knee disability. The Veteran stated that he tried to let the back injury heal on its own because he thought he could work through it. The Veteran contends that he has had low back pain since the injury, and it has limited all of his activities. See September 2019 Statement in Support of Claim. The VA has the duty to make reasonable efforts to assist a claimant in securing evidence necessary to substantiate their claim for VA benefits. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c). The duty to assist was not met when the VA failed to obtain an adequate VA examination for the Veteran's spine/back disabilities. The case law is clear that once the Secretary undertakes the effort to provide an examination when developing a service-connection claim, he must provide an adequate one. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Currently, the Veteran's medical records show a diagnosis of degenerative disc disease, however the records are silent as to if there is any connection to the Veteran's claimed in-service back injury. In connection with the Board's January 2020 remand, the Veteran underwent a VA examination to address whether his current back disability was related to his military service in December 2020. Ultimately, the examiner concluded that his current back diagnoses were not related to his military service. After noting the Veteran's report of injuring his back during basic training, the examiner then noted that his service treatment records were silent for any complaints or treatment for a back problem. The examiner then went on to say that there were studies showing that military personnel and veterans had a high rate of musculoskeletal pain, and that the most commonly reported problem was severe back pain. The examiner went on to note that those in the military lifted and carried heavy loads, that they jumped and that they would quickly pivot and run in their line of duty. The examiner also noted that repeated stress and trauma on the spine joints could contribute to a back injury. Despite this, the examiner concluded that his current lumbar spine problems were less likely than not associated with his military service based on a lack of in-service and post-service treatment records. In May 2021 the Veteran was afforded a VA examination for his back disability. The examiner indicated that there is no evidence that the Veteran hurt his back during service. The examiner also stated that the Veteran was able to work in a physically demanding job for the next 38 years. The Board notes that the Veteran indicated that he was a supervisor, so it is unknown if the Veteran's job was physically demanding, so it is unclear if the examiner relied on an inaccurate premise. The examiner indicated that age is a primary risk factor in developing osteoarthritis. The Board finds that the examiner is still relying upon the absence of evidence and has not reconciled or addressed the Board's January 2020 and March 2021 remand directives. In the March 2021 VA medical opinion, the examiner addressed whether the Veteran's back disability had been "aggravated (permanently worsened) by" his service-connected right-knee disability. However, the proper standard is whether there is any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the nonservice-connected disease, will be service-connected. 38 C.F.R. § 3.310(b), Ward v. Wilkie, Nos. 16-2157, 17-1204, 2019 U.S. App. Vet. Claims LEXIS 994 (Vet. App. June 14, 2019). Finally, in June 2021 the Veteran submitted authorization forms to obtain outstanding records. VA determined that the provider was non-private, and the records are from the VA hospital and VA clinic in Mesa and Gilbert. There were no additional VA records added to the Veteran's case file. Thus, a remand is necessary to obtain adequate medical opinions for the Veteran's back disability. Specifically, these opinions are necessary to reconcile the Veteran's lay testimony, the relevant medical research, and the Veteran's medical history. In addition, a remand is required to associate any relevant missing VA medical records prior to adjudication. 3. Entitlement to service connection for a sinus disability, to include sinusitis, allergic rhinitis, and deviated septum is remanded. The Veteran contends that his sinus disability, to include sinusitis, allergic rhinitis, and deviated septum is related to service or was aggravated by service. In January 2017, a VA medical opinion was obtained to address whether the Veteran's current sinus disorders were related to his military service; however, the Board finds that the opinion is insufficient to adjudicate the claim on appeal. Significantly, the opinion appears to be based solely on the lack of objective evidence showing chronic symptomatology during and following service, and it does not reflect consideration of the Veteran's lay statements concerning the onset and continuity of his sinus-related symptoms. See Dalton, supra; Miller, supra. The Board also notes that the January 2017 VA examiner indicated that the Veteran's allergic rhinitis preexisted his military service. The Board also noted that, during an April 1972 VA examination, the Veteran reported problems with allergic rhinitis and severe post-nasal drip since he was a boy. Given this, the issue as to whether the Veteran was sound upon entrance into active duty has been raised. Under pertinent law and regulations, a veteran will be considered to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at entrance into service. 38 U.S.C. § 1111. When no preexisting condition is noted upon entry, the veteran is presumed to have been sound upon entry and the presumption of soundness arises. If the presumption of soundness applies, to rebut the presumption of soundness under 38 U.S.C. § 1111, VA must show by clear and unmistakable evidence both that the disease or injury existed prior to service and that the disease or injury was not aggravated by service. The claimant is not required to show that the disease or injury increased in severity during service before VA's duty under the second prong of this rebuttal standard attaches. VAOGCPREC 03-2003; see also Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004). If the government fails to rebut the presumption of soundness, the claim is one for service connection, not aggravation. Id. at 1096; 38 U.S.C. § 1111. In May 2021 the Veteran was afforded a VA examination for his sinus disability. The examiner again only discusses objective evidence. The examiner opined that the diagnosed allergic rhinitis clearly and unmistakably pre-existed prior to active duty, which were corroborated by the Veteran's statements. The examiner also stated that the Veteran's deviated septum was not diagnosed until 2017 and is not related to service. The examiner stated that there is no objective evidence to support any aggravation. However, the examiner did not use the "clear and unmistakable evidence" standard, and only relied upon objective evidence. Thus, a remand is necessary to obtain an adequate medical opinion to address the Veteran's lay contentions, and an aggravation opinion that uses the proper standard. The matter is REMANDED for the following action: 1. Obtain all outstanding VA treatment records and associate them with the evidence of record before the Board including but not limited to the VA clinic in Mesa and Gilbert from July 2013 to 2015. In addition, the Veteran indicated that he received treatment from the VA hospital in Phoenix Arizona from 2014 to 2016. 2. Then, obtain an addendum opinion from an appropriate clinician for the Veteran's back disability. The clinician must be provided with and review the entire claims file, to include a copy of this remand. Following a review of the evidence of record, to include the Veteran's lay statements, the clinician should opine: (a.) Whether it is as likely as not (50 percent or greater probability) that the Veteran's back injury is related to service. In this regard, the Board notes that Veteran has argued that he injured his back during training at the same time he injured his knee and that it has continued to bother him since that time. Also, the examiner must note and address the clinical significance, if any, of the December 2020 VA examiner's observation that studies showed that military personnel and veterans had a high rate of musculoskeletal pain, and that the most commonly reported problem was severe back pain. The examiner went on to note that those in the military lifted and carried heavy loads, that they jumped, and that they would quickly pivot and run in their line of duty. The examiner also noted that repeated stress and trauma on the spine joints could contribute to a back injury. In offering any opinion, the examiner must consider the full record, to include the Veteran's lay statements regarding the onset and continuity of his symptomatology, and the opinion should reflect such consideration. The clinician must note that a lack of contemporaneous medical evidence does not, in and of itself, render lay evidence not credible. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). (b.) Is it at least as likely as not (at least a 50 percent probability) that the Veteran's back disability is proximately due to the or the result of his service-connected right knee disability? (c.) Is it at least as likely as not (at least a 50 percent probability) that the Veteran's back disability increased in severity by his service-connected right knee disability? (Does not need to permanently worsen). (d.) Whether it is as likely as not (50 percent or greater probability) that the Veteran's sinus disability, to include sinusitis, allergic rhinitis, and deviated septum is related to service. The clinician must note that a lack of contemporaneous medical evidence does not, in and of itself, render lay evidence not credible. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). (e.) Obtain an addendum opinion from the May 2021 VA examiner, if available, or an appropriate substitute, to determine whether the Veteran's pre-existing sinus disabilities clearly and unmistakably were NOT aggravated beyond their normal progression by active service. Any such evidence should be identified with specificity. The term "clear and unmistakable means "obvious or manifest," "cannot be misinterpreted and misunderstood," or "undebatable." See 38 C.F.R. § 3.304(b); see also Quirin v. Shinseki, 22 Vet. App. 390, 396 (2009). 3. When the above development has been completed, readjudicate the issues on appeal. If any benefit sought on appeal remains denied, issue an additional supplemental statement of the case to the Veteran and his representative. After the Veteran and his representative have had an adequate opportunity to respond, return the appeal to the Board for appellate review. MICHAEL MARTIN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Quist 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.