Citation Nr: 21062205 Decision Date: 10/06/21 Archive Date: 10/06/21 DOCKET NO. 11-08 723 DATE: October 6, 2021 REMANDED The appeal regarding entitlement to service connection for a left knee disability is remanded. The appeal regarding entitlement to service connection for a right knee disability is remanded. The appeal regarding entitlement to service connection for a low back disability is remanded. The appeal regarding entitlement to service connection for a right hip disability is remanded. The appeal regarding entitlement to service connection for a right lung disability is remanded. REASONS FOR REMAND The Veteran had active service from January 1974 to September 1975. This matter comes before the Board of Veterans' Appeals (Board) from a July 2009 rating decision by the Agency of Original Jurisdiction (AOJ). The appeal was remanded for development of the record in November 2015, May 2018, and December 2020. Notably, the May 2018 remand directed that opinions be obtained regarding whether the Veteran's knee and back disabilities were aggravated by his serve-connected peroneal nerve disability. On remand, the AOJ scheduled examinations for which the Veteran failed to report. The AOJ returned the appeal to the Board without obtaining opinions. When the appeal returned to the Board in December 2020, the Veteran's representative argued that the Veteran had not received notice of the examinations. The Board acknowledged this assertion, and pointed out that the previous remand directed that opinions be obtained based on review of the record. Thus, the appeal was returned for completion of the previously directed development. Service connection for a left knee disability Service connection for a right knee disability The Veteran seeks service connection for left and right knee disabilities, both on a direct basis and as secondary to his service connected left peroneal nerve disability. See December 2011 Regional Office Hearing Transcript. Service treatment records reflect findings of chondromalacia in August 1975. VA examination in May 2009 indicated a diagnosis of osteoarthritis. The examiner indicated that such was unlikely secondary to service injury. He provided no rationale for his conclusion. In February 2021, a physician reviewed the record and opined that the claimed left knee disability was not related to service. His reasoning was the following: no aggravation is felt to be plausible on c file view... there is no severity of injury to left leg ankle or knee in service for such a claim and ets exam 1975 is negative for a nexus. then there is many yrs of a gap till 2006ish onset in the record and effusions, chondromalacia patella and djd noted. no continuity or chronicity data is shown for a nexus given the gap of years..... current severity of left leg sc condition is not sufficient for a impact to left knee in the record VHA Regarding whether the claimed left knee disability was caused by the Veteran's left peroneal nerve disability, the physician stated that "the paresthesia would not be medically plausible impacting his left knee status...objectively in the record..." Regarding whether the claimed left knee disability was aggravated by the Veteran's left peroneal nerve disability, the physician indicated that it was not and stated the following: no aggravation is felt to be plausible on c file view... there is no severity of injury to left leg ankle or knee in service for such a claim and ets exam 1975 is negative for a nexus. then there is many yrs of a gap till 2006ish onset in the record and effusions, chondromalacia patella and djd noted. no continuity or chronicity data is shown for a nexus given the gap of years..... current severity of left leg SC condition is not sufficient for a impact to left knee in the record VHA... The physician concluded that the Veteran's right knee disability was not related to service, and stated the following: there is no active duty injury of significance for a nexus...to onset in 2006 knees effusion etc and leading up to djd chondromalacia in 08,09.. silent gap post service and normal ETS exam 1975 is notable for a negative nexus Regarding whether the Veteran's claimed right knee disability was caused by his service-connected left peroneal nerve disability, the physician concluded that it was not and stated the following: there is no medical severity of left leg sc condition for a nexus. nor is there c file data for such a claim... there is no active duty injury of significance for a nexus...to onset in 2006 knees effusion etc and leading up to djd chondromalacia in 08,09.. silent gap post service and normal ETS exam 1975 is notable for a negative nexus. Regarding whether the claimed right knee disability was aggravated by the service-connected left peroneal nerve disability, the physician concluded that it was not and stated the following: nor is there any plausible aggravation shown in the c file treatment records...objectively. there is no active duty injury of significance for a nexus...to onset in 2006 knees effusion etc and leading up to djd chondromalacia in 08,09.. silent gap post service and normal ETS exam 1975 is notable for a negative nexus. The physician failed to articulate why any current knee disability was unrelated to the in-service findings. He also failed to address the Veteran's report of symptoms during service and in the years following service. The physician also failed to address the assertion that altered gait caused by the Veteran's service-connected left peroneal nerve disability had caused or aggravated his knee disabilities. The rationale offered for all of the physician's conclusions does not adequately explain the medical principles underlying his opinions. The Board therefore concludes that an additional examination is necessary to determine the nature and etiology of the Veteran's claimed knee disabilities. Service connection for a low back disability Service connection for a right hip disability The Veteran seeks service connection for a low back disability, both on a direct basis and as secondary to his service connected left peroneal nerve disability. He seeks service connection for his right hip disability as secondary to his low back disability. See December 2011 Regional Office Hearing Transcript. In February 2021, a physician reviewed the record and concluded that the Veteran's low back disability was not related to service. His rationale was as follows: There is no inservice injury of note in the c file str's and the onset is 2007ish in c file when he sees physician for back pain "onset post hunting"... then 2010 "onset insidious" is noted to physical therapy. no data for continuous or chronic after the service. ALSO he had a normal ETS exam 9/75 etiology is shown to be at back region only for current status. The physician also concluded that the Veteran's low back disability was neither caused nor aggravated by his service-connected left peroneal nerve disability. he reasoned the following: HIS statements are notable but not medically plausible by view of the c file... current severity of sc peroneal nerve disability is not sufficient for a nexus to cause or aggravate.... There is no inservice injury of note in the c file str's and the onset is 2007ish in c file when he sees physician for back pain "onset post hunting"... then 2010 "onset insidious" is noted to physical therapy. no data for continuous or chronic after the service. ALSO he had a normal ETS exam 9/75 etiology is shown to be at back region only for current status... While the physician acknowledged the Veteran's assertions as "notable", he did not adequately address his statements regarding back symptoms during service and since, which the Veteran is competent to report. He did not adequately address the assertion that altered gait caused or contributed to the Veteran's back disability. An examination to address these questions is necessary. Considering the remand of the low back disability claim for additional development, the claim of entitlement to service connection for a right hip disability as secondary to the low back disability is inextricably intertwined with the remanded issue and may not be decided at this time. Service connection for a right lung disability The Veteran seeks service connection for a respiratory disability. He maintains that he was exposed to dust in his barracks during basic training, and that he was also affected by chemicals used to clean the barracks. He argues that he was exposed to asbestos in his barracks while at Ft. Bragg. He also argues that he was affected by gas in the gas chamber. See April 2009 Statement in Support of Claim. The Board also notes that the Veteran served as a wheeled vehicle repairman. VA treatment records reflect that a right lung nodule was seen on CT scan. In February 2009, the impression on CT scan was right lung harmatoma. An August 2008 VA treatment record indicates a history of chronic obstructive pulmonary disease (COPD) and a right pulmonary nodule that was noted in 2007. In January 2016, a VA examiner provided conflicting statements regarding the etiology of the Veteran's respiratory disability. She indicated that the claimed condition was at least as likely as not incurred in or caused by the claimed in-service injury, event, or illness. However, she also stated that the harmatoma was not service connected, and that the Veteran did not have findings of pleural thickening or findings consistent with pulmonary fibrosis as would be the case with asbestosis. In May 2018, the Board observed the discrepancies within the examiner's opinion and rationale and directed that clarification be sought. In February 2021, physician concluded that the claimed condition was less likely than not that the claimed condition was less likely than not incurred in caused by the claimed in-service injury, event, or illness. He reasoned that there was no in service right lung diagnosis. He further stated the following: 1. yrs later the 2008-09 c file shows clearly and definitively that it is a benign hamartoma and is of developmental congenital etiology NOS and incidental ONLY....current status reflect only natural age related process since onset. 2. emphysema 1988 onset is felt to be smoking related by all reasonable data shown... FOR emphysema for 2. and hamartoma for 1.== Harrisons text of medicince and UPTODATE Benign tumors Pulmonary hamartomas cause approximately 10 percent of benign nodules found in the lung [2,9,10]. They typically present in middle age, grow slowly over years, and are radiologically and histologically heterogeneous. Cartilage (with scattered calcification), fat, muscle, myxomatous tissue, and fibroblastic tissue may all exist (picture 1 and picture 2A-B and image 6) [20]. The classically described and pathognomonic appearance of a hamartoma on a chest radiograph is a nodule with "popcorn" calcification, although this pattern is observed in less than 10 percent of cases (image 7). High-resolution CT of the lesion is particularly useful because it may demonstrate focal areas of fat, or calcification alternating with fat, which are virtually diagnostic of a hamartoma (image 8) [21]. Less common benign neoplasms such as fibromas, leiomyomas, hemangiomas, amyloidoma (image 9), and pneumocytoma (also called pulmonary sclerosing hemangioma) do not have characteristic features on imaging (image 10) [22]. Emedicine and uptodate-developmental congenital only plausible.... The Board is unable to make sense of the examiner's statements. Moreover, the Veteran's contentions of a respiratory disability as secondary to other exposures as have not been addressed. An examination is necessary. The matters are REMANDED for the following action: 1. Schedule the Veteran for an examination to determine the nature and etiology of his claimed knee disabilities. The evidentiary record, including a copy of this remand, must be made available to and reviewed by the examiner. The examination report must include a notation that this record review took place. After the record review and examination of the Veteran, the examiner should identify all relevant conditions referable to the Veteran's knees. The examiner should provide an opinion regarding whether it is at least as likely as not that any such condition was incurred in, or is otherwise related to active service. In rendering this opinion, the examiner is directed to service treatment records showing chondromalacia in 1975. The examiner should also provide an opinion regarding whether it is at least as likely as not that any knee disability was caused or aggravated (worsened beyond normal progression) by the Veteran's service-connected left peroneal nerve disability. In rendering these opinions, the examiner is advised that the Veteran is competent to report his symptoms and history. Such reports must be acknowledged and considered in formulating any opinion. If the clinician rejects the Veteran's reports, he or she must provide an explanation for such rejection. The examiner is not to improperly discount the Veteran's lay statements or mistakenly rely on an absence of medical evidence in the record to support his or her conclusions. The complete rationale for all opinions should be set forth and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. If an opinion cannot be provided without resorting to mere speculation, the examiner must provide a complete explanation for why an opinion cannot be rendered. In so doing, the examiner must explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question. 2. Schedule the Veteran for an examination to determine the nature and etiology of his claimed low back disability. The evidentiary record, including a copy of this remand, must be made available to and reviewed by the examiner. The examination report must include a notation that this record review took place. After the record review and examination of the Veteran, the examiner should identify all relevant diagnoses referable to the Veteran's low back. The examiner should provide an opinion regarding whether it is at least as likely as not that any such diagnosis was incurred in, or is otherwise related to active service. The examiner should also provide an opinion regarding whether it is at least as likely as not that any low back disability was caused or aggravated (worsened beyond normal progression) by the Veteran's service-connected left peroneal nerve disability. If the examiner determines that the Veteran's low back disability is related to service or the service-connected left peroneal nerve disability, he or she should also provide an opinion regarding whether it is at least as likely as not that the Veteran's claimed right hip disability was caused or aggravated (worsened beyond normal progression) by his low back disability. In rendering these opinions, the examiner is advised that the Veteran is competent to report his symptoms and history. Such reports must be acknowledged and considered in formulating any opinion. If the examiner rejects the Veteran's reports, he or she must provide an explanation for such rejection. The examiner is not to improperly discount the Veteran's lay statements or mistakenly rely on an absence of medical evidence in the record to support his or her conclusions. The complete rationale for all opinions should be set forth and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. If the requested opinions cannot be provided without resorting to mere speculation, the examiner must provide a complete explanation for why an opinion cannot be rendered. In so doing, the examiner must explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question. 3. Schedule the Veteran for an examination to determine the nature and etiology of his claimed respiratory disability. The evidentiary record, including a copy of this remand, must be made available to and reviewed by the examiner. The examination report must include a notation that this record review took place. After the record review and examination of the Veteran, the examiner should identify all relevant diagnoses referable to the Veteran's respiratory system. The examiner should provide an opinion regarding whether it is at least as likely as not that any such diagnosis was incurred in, or is otherwise related to active service, to include exposure to asbestos, dust, and chemicals as claimed by the Veteran. In rendering this opinion, the examiner is advised that the Veteran is competent to report his symptoms and history. Such reports must be acknowledged and considered in formulating any opinion. If the examiner rejects the Veteran's reports, he or she must provide an explanation for such rejection. The examiner is not to improperly discount the Veteran's lay statements or mistakenly rely on an absence of medical evidence in the record to support his or her conclusions. The complete rationale for all opinions should be set forth and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. If the requested opinion cannot be provided without resorting to mere speculation, the examiner must provide a complete explanation for why an opinion cannot be rendered. In so doing, the examiner must explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question. 4. Then, readjudicate the Veteran's claims, with application of all appropriate laws, regulations, and case law, and consideration of any additional information obtained as a result of this remand. If the decision remains adverse to the Veteran, he and his representative should be furnished a supplemental statement of the case (SSOC) and afforded an appropriate period within which to respond thereto. DONNIE R. HACHEY Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Barone, 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.