Citation Nr: 21062480 Decision Date: 10/07/21 Archive Date: 10/07/21 DOCKET NO. 18-44 276 DATE: October 7, 2021 REMANDED Entitlement to service connection for a thoracolumbar spine condition, to include arthritis and stenosis, is remanded. Entitlement to service connection for a bilateral leg condition is remanded. Entitlement to service connection for a bilateral knee condition is remanded. REASONS FOR REMAND The Veteran served on active duty with the Army from July 1969 to February 1971 and with the Navy from December 1981 to August 1983. He appeals an October 2015 rating decision by the Department of Veterans Affairs (VA) Agency of Original Jurisdiction (AOJ) denying entitlement to service connection for a lumbar spine condition in addition to bilateral knee and leg conditions. The Board of Veterans' Appeals (Board) remanded these claims in June 2020 to obtain adequate VA examinations and opinions. The issues are now back before the Board. The Board apologizes for the delay, but a second remand is required for all issues. Thoracolumbar Spine The Board finds the September 2015 VA opinion regarding direct service connection inadequate. There, the VA examiner diagnosed the Veteran with only spinal stenosis and opined this condition was less likely than not related to service. As rationale, the examiner stated "spinal x-rays performed in 1982 while in service demonstrated no bony abnormalities" and after service, the Veteran "was apparently fit enough to perform heavy manual labor for 30 to 35 years" which presented "long term opportunity to injure [his] back or to develop spinal arthritis." See September 2015 VA examination report. This examination is inadequate for multiple reasons. First, the record reflects the Veteran also has a diagnosis of degenerative arthritis, which was not considered by the VA examiner. See September 1994 Health Network of Indiana records (mild kyphosis and osteoporosis). In fact, service treatment records (STRs) suggest a potential diagnosis of arthritis. For example, December 1981 STRs note the Veteran has a "history of arthritis of spine." November 1982 STRs note the Veteran sought treatment multiple times for back pain, which note a reported history of arthritis. See November 1982 STR ("told two to three years ago that he had arthritis of the thoracic spine."). Additionally, STRs in December 1982 and April 1983 reflect the Veteran sought treatment for recurring back pain. Second, the VA examiner noted November 1982 STRs reflect x-ray results with "no bony abnormalities," but the in-service thoracic and cervical spine x-rays did not rule out arthritis or any other potential spinal condition, let alone address the lumbar spine. Third, the VA examiner noted the Veteran's work history post-service included farming, factory work, and heavy equipment operator in a rock crushing plant, assuming this was "heavy manual labor." In his July 2018 VA Form 9, the Veteran stated "just about all farm work is done from the seat of a tractor" and included very little hard manual labor. Similarly, he contends his factory job did not include manual labor and as a rock crusher operator, he "sat in a little shack and...operated the crusher with electric buttons." See July 2018 VA Form 9. These contentions were not addressed by the September 2015 VA examiner and should be addressed by a reviewing clinician on remand. In April 2021, the Veteran was afforded a second VA examination to assess the nature and etiology of his spine condition, specifically in relation to his bilateral knee and leg conditions. The examiner noted the Veteran had degenerative arthritis and spinal stenosis. In June 2021, two months later, the same VA examiner provided an opinion that any current spinal condition was less likely than not caused or aggravated by the Veteran's knee or leg conditions as the Veteran did not have any diagnosable leg or knee condition. Additionally in her rationale, the examiner stated the Veteran did not seek medical treatment for his back until 2009, yet Health Network of Indiana treatment record reflect treatment as early as September 1994. See Reonal v. Brown, 5 Vet. App. 458,461 (1993) (VA examinations hold little probative value if based on an inaccurate factual basis). Further, the VA examiner noted the Veteran's post-service hard manual labor employment, but did not address the Veteran's competent July 2018 VA Form 9 contentions. Most importantly, the VA examiner did not provide a nexus opinion regarding direct service connection. As both VA examinations and opinions are inadequate, a remand is required so the Board evaluation of the Veteran's claimed disability will be a fully informed one. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Bilateral Knee and Leg A September 2015 VA examiner found the Veteran's knee and leg pain was less likely than not due to military service and "in all likelihood" opined the Veteran's leg pain was secondary to spinal stenosis. However, the VA examiner did not provide adequate rationale for this opinion; thus, the June 2020 Board remand requested a new VA examination. In May 2021, a nurse practitioner examined the Veteran and provided a second opinion that the Veteran's bilateral leg and knee pain with functional loss were less likely than not related to his service. As rationale for both conditions, the VA examiner stated that although July 1969 STRs reflected the Veteran sought arch support for leg pain and June 1983 STRs noted knee pain after running, there were no other complaints for leg or knee pain in service and there currently was no knee or leg diagnosis during the appeal period. See May 2021 VA medical opinion. In a second medical opinion provided by the same nurse practitioner, the Veteran's post-service hard manual labor occupations were noted in addition to the statement that the Veteran did not seek treatment for his leg pain until forty-four years later in February 2013. Id. Again, this VA examiner failed to consider the Veteran's contention that his post-service employment was not manual labor and did not discuss private medical treatment records noting treatment for knee conditions as early as April 1998 and leg pain in April 2010. See July 2018 VA Form 9; April 1998 and April 2010 Health Network of Indiana records. Importantly, the lay statements of record were not considered, specifically regarding the history and symptoms of the Veteran's recurrent leg and knee pain, including that it began in service. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). As pertinent lay and medical evidence was not considered by either examiner, a remand is required. The matters are REMANDED for the following action: 1. Obtain any relevant updated private and VA treatment records that have not already been obtained and associate the same with the claims file. 2. After the development of #1 above is complete, schedule the Veteran for an examination by an appropriately qualified clinician, other than the clinician who provided the April 2021 examination and June 2021 medical opinion, to determine the nature and etiology of the Veteran's thoracolumbar spine condition, to include arthritis and stenosis. The evidentiary record, including a copy of this remand, must be made available to and reviewed by the examiner. The opinion should include a notation that this review took place. After a thorough review of the record to include all in-service and post-service treatment records, the examiner should answer the following: Is it at least as likely as not (a 50 percent probability or more) the Veteran's current thoracolumbar spine condition, to include degenerative arthritis and stenosis, was incurred in or is otherwise related to his time on active duty? The examiner is directed to consider the Veteran's contentions that his back pain began while carrying heavy packs on long marches serving in the Republic of Vietnam as a combat medic from December 1969 to February 1971. Specifically consider (a.) August 2015 correspondence regarding the Veteran's in-service events, and (b.) February 1971 Army separation examination noting the Veteran weighed 130 pounds. The examiner must also consider the following in his/her opinions: (a.) the Veteran's contentions regarding his post-service employment in the September 2018 VA Form 9; (b.) December 1981 STRs noting a "history of arthritis of spine;" (c.) November and December 1982 STRs noting multiple complaints of back pain, stiffness, and that the Veteran was told "two to three years ago that he had arthritis of the thoracic spine;" (d.) April 1983 STR noting back pain; and (e.) September 1994 Health Network of Indiana records noting sharp upper back pain with spasms and x-ray imaging noting mild kyphosis and osteoporosis. The examiner should note the Veteran is competent to report his symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinions. If the examiner rejects the Veteran's reports of symptomatology, a reason for doing so should also be provided. The examiner should not mistakenly rely on an absence of medical evidence in the record to support his or her conclusions. 3. After the development of #1 above is complete, schedule the Veteran for an examination by an appropriately qualified clinician, other than the clinician who provided the April 2021 examination and May 2021 medical opinions, to determine the nature and etiology of the Veteran's bilateral knee and leg conditions, to include functional loss due to pain. The evidentiary record, including a copy of this remand, must be made available to and reviewed by the examiner. The opinion should include a notation that this review took place. After a thorough review of the record to include all in-service and post-service treatment records, the examiner should answer the following: Is it at least as likely as not (a 50 percent probability or more) the Veteran's current bilateral knee and leg conditions, to include functional loss due to pain, was incurred in or is otherwise related to his time on active duty? The examiner is directed to consider the Veteran's contentions that his knee and leg conditions began while carrying heavy packs on long marches serving in the Republic of Vietnam as a combat medic from December 1969 to February 1971. Specifically consider (a.) August 2015 correspondence regarding the Veteran's in-service events, and (b.) February 1971 Army separation examination noting the Veteran weighed 130 pounds. The examiner must also consider the following in his/her opinions: (a.) the Veteran's contentions regarding his post-service employment in the September 2018 VA Form 9; (b.) July and August 1969 STRs noting the Veteran sought treatment for his "feet/legs" and requested arch supports; (c.) June 1983 STRs noting complaints of pain in both knees for ten days; (d.) April and June 1998 Health Network of Indiana records noting a right knee strain with the note "cannot rule out meniscus injury;" (e.) May 1999 Health Network of Indiana records right knee synovitis; (f) June 2004 Health Network of Indiana records noting left knee pain and x-ray imaging reflecting a "small foreign body within the...lateral aspect of the patellar tendon" with "sclerotic density;" and (g) January 2015 VA treatment records noting chronic arthritis of the knee. The examiner should note the Veteran is competent to report his symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinions. If the examiner rejects the Veteran's reports of symptomatology, a reason for doing so should also be provided. The examiner should not mistakenly rely on an absence of medical evidence in the record to support his or her conclusions. (Continued on the next page) 4. After the above has been completed to the extent possible, readjudicate the claim. If any benefit sought remains denied, provide the Veteran and his representative with an SSOC and return the case to the Board. DONNIE R. HACHEY Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Bona, 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.