Citation Nr: 21062532 Decision Date: 10/07/21 Archive Date: 10/07/21 DOCKET NO. 14-06 485 DATE: October 7, 2021 REMANDED 1. Entitlement to service connection for a right knee disability is remanded. 2. Entitlement to service connection for a left knee disability is remanded. 3. Entitlement to service connection for a low back disability is remanded. 4. Entitlement to service connection for a left lower extremity nerve disability is remanded. REASONS FOR REMAND The appellant is a Veteran who served on active duty from February 1969 to November 1970, including service in Vietnam. His DD-214 reflects he received a Combat Infantryman Badge (CIB), among other citations and awards. These matters are before the Board of Veterans' Appeals (Board) on appeal from a November 2011 rating decision. In May 2019, the case was remanded for additional development. A September 2020 Board decision, in relevant part, denied service connection for right knee, left knee, low back, and left lower extremity neurological disabilities. [The decision also granted service connection for posttraumatic stress disorder (PTSD)/depressive disorder, denied a rating in excess of 20 percent for type 2 diabetes mellitus, and denied service connection for erectile dysfunction (ED), hypertension, bilateral hearing loss, and right and left calf disabilities.] The Veteran appealed the portions of that decision which denied service connection for right knee, left knee, low back, and left lower extremity neurological disabilities to the U.S. Court of Appeals for Veterans Claims (CAVC) resulting in a May 2021 Joint Motion for Partial Remand (JMPR) by the parties. [He did not appeal the portions of the Board's decision that denied a rating in excess of 20 percent for type 2 diabetes mellitus, and denied service connection for ED, hypertension, bilateral hearing loss, and right and left calf disabilities. The award of service connection for PTSD/depressive disorder was favorable to the Veteran and not before the CAVC. Accordingly, those issues are no longer before the Board.] A May 2021 CAVC Order remanded the matters of service connection for right knee, left knee, low back, and left lower extremity neurological disabilities for action consistent with the terms of the JMPR. 1., 2., 3. Entitlement to service connection for right knee, left knee, and low back disabilities In the May 2021 JMPR, the parties agreed that although the Board previously recognized the "combat presumption" (38 U.S.C. § 1154(b)) may apply to the claims on appeal (citing to the May 2019 Remand), it failed to consider or apply it in the decision under review. "Remand is therefore required for the Board to readjudicate [the Veteran's] bilateral knee, spine, and sciatica claims in light of Section 1154(b)." The parties also directed the Board to "reconsider the probative value of the July 2010 private medical opinion as it pertains to those claims." As noted above, the Veteran was awarded a CIB. For a Veteran who engaged in combat with the enemy, the Secretary of VA shall accept as sufficient proof of service connection of any disease or injury alleged to have been incurred in or aggravated by such service satisfactory lay or other evidence of service incurrence or aggravation of such injury or disease, if consistent with the circumstances, conditions, or hardships of such service, notwithstanding the fact that there is no official record of such incurrence or aggravation in such service. See 38 U.S.C. § 1154(b); 38 C.F.R. § 3.304(d). The provisions of 38 U.S.C. § 1154 do not obviate the requirement that there must be competent evidence of a causal relationship between the current claimed condition and service. The Veteran contends that his right knee, left knee, and low back disabilities are related to service; he specifically asserts that such disabilities are related to injuries sustained when a booby trap went off near him, and/or are due to "several jumps from helicopters" and walking through the jungle with heavy gear. See July 2010 medical opinion from Dr. P.Y. [The Board notes that the Veteran has provided somewhat inconsistent reports regarding the alleged booby trap incident. For example, he told Dr. P.Y. in July 2010 that he was struck with shrapnel on his face and left leg, and was knocked unconscious for 2-3 hours. He told Dr. W.E. (in a July 2010 private psychiatric report) that shrapnel from a booby trap hit his right jaw and right leg. And on March 2011 VA examination, he reported that he was "unconscious for several minutes" (emphasis added).] The record contains conflicting medical opinions in these matters, but none are adequate for rating purposes. In August 2010, VA received a July 2010 private opinion from Dr. P.Y. to the effect that the Veteran's right knee, left knee, and low back disabilities are due to the reported in-service booby trap incident and trauma from helicopter jumps and carrying heavy gear. However, the opinion does not reflect familiarity with the Veteran's service treatment records (STRs) (including the normal clinical evaluation on service separation in November 1970), does not contain adequate rationale, does not account for evidence weighing against the claim (such as the absence of documented complaints for several decades), and does not reflect adequate consideration of other possible etiological factors for the development of the disabilities (such as his 30+ year postservice career in construction/carpentry). [Notably, Dr. P.Y.'s report includes diagnoses of knee DJD and osteoarthritis, but such was not shown/diagnosed on March 2011 x-rays.] In March 2011, a VA examiner provided negative nexus (to service) opinions in each of these matters; she opined they were more likely related to his postservice employment. Although the opinions do reflect consideration of the Veteran's reported booby trap incident, they do not reflect consideration of the reported helicopter jumps/carrying heavy equipment, nor do they include adequate rationale. Accordingly, remand for an adequate advisory medical opinion that addresses the Veteran's reports and is based on an accurate and complete review of the record is necessary. 4. Entitlement to service connection for a left lower extremity nerve disability The Veteran's primary theory of entitlement to service connection for a left lower extremity nerve disability is one of secondary service connection; he contends he has left sciatic pain associated with his claimed back disability. See July 2010 medical opinion from Dr. P.Y.; see also August 2010 VA Form 21-4138. Thus, the claim seeking service connection for a left lower extremity nerve disability is inextricably intertwined with the service connection for a back disability claim, and must also be remanded. Furthermore, remand is also necessary to ascertain the nature of the claimed left lower extremity nerve disability. The evidence is not clear whether he has a neurologic condition that is a manifestation of his spine disability (as suggested by Dr. P.Y.), his (service-connected) type 2 diabetes mellitus, or his (non-service-connected) peripheral vascular disease (PVD). [The matter of service connection for PVD was remanded by the Board in April 2021 for additional development.] Notably, on December 2015 VA diabetes mellitus examination, diabetic neuropathy was not diagnosed, but a private March 2019 treatment record contains a notation of "Type 2 diabetes mellitus complicated by neuropathy." And a September 2015 private record of treatment for PVD notes a finding of diffuse atherosclerotic narrowing in the vessels below the knee in the anterior arteries bilaterally. Accordingly, remand for an examination to ascertain the nature and likely etiology of the Veteran's claimed left lower extremity nerve disability is necessary. The matters are REMANDED for the following: 1. Secure for the record updated (to the present, all not already associated with the record) complete clinical records of VA evaluations and treatment the Veteran has received for his right knee, left knee, low back, and left lower extremity neurological disabilities. 2. Ask the Veteran to identify all providers of private evaluations or treatment he has received for his right knee, left knee, low back, and left lower extremity nerve disabilities (records of which are not already in the record), and submit authorizations for VA to secure for the record complete clinical records from all providers identified. Obtain those records. 3. When the development requested above is completed, arrange for an orthopedic examination of the Veteran (with neurological consult if deemed necessary) to ascertain the nature and likely etiology of his claimed right knee, left knee, low back, and left lower extremity nerve disabilities. The Veteran's entire record (including this remand, the July 2010 private medical report from Dr. P.Y., and the March 2011 VA examination reports) must be reviewed by the examiner in conjunction with the examination. On review of the record and interview and examination of the Veteran, the examiner should: a) Identify (by diagnosis) each right knee, left knee, low back, and left lower extremity nerve disability found/shown by the record during the pendency of the instant claim. b) Identify the likely etiology for each right knee, left knee, low back, and left lower extremity nerve disability diagnosed. Specifically, is it at least as likely as not (a 50% or greater probability) that the disabilities were incurred during the Veteran's active service (vs. due to the Veteran's 30+ years of postservice construction work)? For the purpose of this opinion, the consulting provider should assume the Veteran experienced trauma from a booby trap explosion in service, and participated in helicopter jumps/carried heavy equipment in service. c) If a diagnosed right knee, left knee, or low back disability is found to be unrelated to service (and trauma from a booby trap, jumping from helicopters, or carrying heavy equipment therein), identify the etiology for each disability that is considered more likely (and explain why that is so). d) If a left lower extremity nerve disability is diagnosed, but determined to not be directly related to the Veteran's military service, opine whether the disability is a neurological manifestation of his claimed low back disability, if not, a manifestation of his type 2 diabetes mellitus, and if not a manifestation of his PVD? [If neurological consult is deemed necessary to address this question, such should be arranged.] e) If a diagnosed left lower extremity nerve disability is found to be unrelated to service and not a manifestation of a low back disability/type 2 diabetes mellitus/or PVD, identify the etiology that is considered to be more likely (and explain why that is so). The examiner must include rationale with all opinions, citing to supporting factual data and medical principles as deemed appropriate. GEORGE R. SENYK Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Dupont, 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.