Citation Nr: 21063292 Decision Date: 10/13/21 Archive Date: 10/13/21 DOCKET NO. 12-18 484 DATE: October 13, 2021 REMANDED Entitlement to service connection for a neck disability is remanded. Entitlement to service connection for a left knee disability is remanded. Entitlement to service connection for a right knee disability is remanded. REASONS FOR REMAND The Veteran served on active duty in the U.S. Marine Corps from June 1972 to July 1974. These matters come before the Board of Veterans' Appeals (Board) on appeal from an August 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veterans Law Judge (VLJ) at an April 2014 videoconference hearing. A transcript of this hearing is of record. This case has an extensive procedural history. Most recently, the case was brought before the Board in August 2017, at which time, the Board denied service connection for a right shoulder disability, a back disability, a neck disability, a right knee disability, and a left knee disability. The Veteran appealed the August 2017 decision to the U.S. Court of Appeals for Veterans Claims (Court). In a May 2018 Order of the Court granting a May 2018 Joint Motion for Remand (JMR), the parties agreed to vacate the August 2017 Board decision and remand the matters for compliance with the terms of the JMR. In December 2018, the Board remanded the issues on appeal for additional development. In a June 2020 rating decision, the Agency of Original Jurisdiction (AOJ) granted service connection for degenerative arthritis with intervertebral disc syndrome; and granted service connection for residuals of the right (major) shoulder acromioclavicular joint separation, issues that had been on appeal. As these issues have been resolved by a full grant of benefits, and the Veteran has not submitted any documents indicating that he is not satisfied with the decision, the Board finds that these issues are no longer part of the current appeal. See 38 C.F.R. § 19.26(d). The record reflects that the Veteran received an October 2020 letter indicating that he could request a virtual hearing instead of waiting for a travel board hearing. In response, the Veteran chose to have a virtual hearing. In November 2020, the Veteran testified before the undersigned VLJ at a virtual hearing. A transcript of this hearing is of record. In January 2021, the Board remanded the issues remaining on appeal for additional development. The case was returned to the Board. In June 2021, the Board remanded the issues on appeal for additional development. As discussed below, there has not been substantial compliance with the June 2021 remand instructions, so the matters must be remanded. See Stegall v. West, 11 Vet. App. 268 (1998); D'Aries v. Peake, 22 Vet. App. 97, 105 (2008). 1. Entitlement to service connection for a neck disability is remanded. 2. Entitlement to service connection for a left knee disability is remanded. 3. Entitlement to service connection for a right knee disability is remanded. This appeal stems from the Veteran's assertions that his current neck disability, left knee disability, and right knee disability were the result of an in-service 1973 jeep accident. At this same accident, the Veteran reportedly sustained injuries to his back and right shoulder, and these disabilities have been service-connected. Notably, VA has documented that the Veteran's complete service treatment records (STRs) could not be obtained. The record only includes the Veteran's June 1972 enlistment examination, June 1972 report of medical history, and June 1974 separation examination. See May 2010 VA Formal Finding Memorandum and June 2015 VA correspondence. In a June 2021 remand, the Board found that April 2021 VA opinions were both inadequate and did not substantially comply with the remand instructions. The Board instructed the AOJ to obtain another opinion addressing whether the Veteran's currently diagnosed neck and bilateral knee disabilities are etiologically related to his active duty service, to include his reported in-service jeep accident. Specifically, the Board directed the VA examiner to provide an opinion that assumed that the 1973 jeep accident had occurred. The VA examiner was also instructed to specifically address the Veteran's lay statements regarding the onset and continuity of his neck and bilateral knee symptoms, to include his November 2020 Board testimony. Unfortunately, the Board finds that the VA examiner did not comply with those remand instructions. In July 2021 VA opinions, the VA examiner opined that the Veteran's current neck disability and bilateral knee disabilities were less likely than not incurred in or caused by a 1973 jeep accident. In providing the rationales, the July 2021 VA examiner relied on the finding that the Veteran's STRs did not contain documentation of a neck or bilateral knee condition. Furthermore, the July 2021 VA examiner found that the only mention of the Veteran's neck and bilateral knee conditions occurring in 1973 due to a jeep accident was the Veteran's subjective history in a 2009 statement in support of claim. Additionally, the July 2021 VA examiner noted that at his 1984 VA examination, the Veteran did not report that his neck and bilateral knee conditions were due to his 1973 jeep accident when he mentioned his back and right shoulder conditions. Finally, with regard to the Veteran's bilateral knee disabilities, the July 2021 VA examiner found it significant that the Veteran had incurred right and left knee injuries after he fell from a horse in 2009. The Board finds that the July 2021 VA opinions are inadequate and did not substantially comply with the June 2021 Board remand. See Stegall v. West, 11 Vet. App. 268 (1998); Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). In that regard, the Board finds that the July 2021 VA examiner's opinion inappropriately relied on the lack of documentation in the Veteran's STRs for his neck and bilateral knee conditions given that VA could not locate the Veteran's complete STRs. Moreover, the July 2021 VA examiner did not address the Veteran's testimony at his November 2020 Board hearing in which he explained that he did not complain of his neck and bilateral knee problems at the November 1984 VA examination, because his back and right shoulder problems were the main issues at the time. Finally, the Board finds that the July 2021 VA examiner's reliance on a 2009 fall from a horse for concluding that the Veteran's bilateral knee disabilities did not result from his 1973 jeep accident does not address the Veteran's lay statements that he experienced bilateral knee problems prior to that 2009 fall and since his 1973 jeep accident. Based on the above, the Board finds that another remand is required to obtain supplemental VA opinions. The matters are REMANDED for the following actions: 1. Obtain all the outstanding treatment records for the Veteran's neck disability, left knee disability, and right knee disability that are not currently of record. 2. Obtain an addendum opinion from the July 2021 VA examiner, or, if not available, another appropriately qualified clinician (M.D.). The examiner must respond to the following: (a.) Is it at least as likely as not (50 percent or greater probability) that the Veteran's neck disability was etiologically related to his active duty service, to include his 1973 jeep accident? (b.) Is it at least as likely as not (50 percent or greater probability) that the Veteran's left knee disability was etiologically related to his active duty service, to include his 1973 jeep accident? (c.) Is it at least as likely as not (50 percent or greater probability) that the Veteran's right knee disability was etiologically related to his active duty service, to include his 1973 jeep accident? (d.) If it is determined that there is another likely etiology for the Veteran's neck disability, left knee disability, and right knee disability, that etiology should be stated. In providing the above opinions, the examiner must assume that the 1973 jeep accident occurred. The examiner must not rely on the lack of documentation during service for the Veteran's neck and bilateral knee disabilities, as complete service treatment records could not be obtained. The examiner must comment on the Veteran's lay statements regarding the onset and continuity of his neck and bilateral knee symptoms, to include November 2020 Board hearing testimony. The examiner must not rely on the absence of contemporaneous medical records documenting the Veteran's neck and bilateral knee symptoms, to include reporting his problems at the November 1984 VA examination, without commenting on the Veteran's testimony at the November 2020 Board hearing. A complete rationale with discussion of medical literature for any opinion expressed must be provided. If an opinion cannot be expressed without resort to speculation, discuss why this is the case. 3. To avoid another remand, the AOJ must review the requested opinions and ensure that the Board's specific instructions have been completed in full. If any opinion is found to be inadequate, it must be returned to the providing examiner for corrective action. If such corrective action is not requested, then the Board will be required to return the case to the AOJ for substantial compliance with its remand instructions. See Stegall v. West, 11 Vet. App. 268 (1998). 4. After the above development is completed, readjudicate the issues on appeal. If the benefits are not granted to the Veteran's satisfaction, send the Veteran and his representative a supplemental statement of the case and provide an opportunity to respond. If necessary, return the case to the Board for further appellate review. LESLEY A. REIN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Journet Shaw, 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.