Citation Nr: 21064280 Decision Date: 10/19/21 Archive Date: 10/19/21 DOCKET NO. 12-20 696 DATE: October 19, 2021 REMANDED Entitlement to service connection for a bilateral shoulder disorder, to include as due to exposure to contaminated water at Camp Lejeune, is REMANDED. Entitlement to service connection for a cervical spine / neck disorder with radiculopathy, to include as due exposure to contaminate water at Camp Lejeune, is REMANDED. Entitlement to service connection for a thoracolumbar spine disorder, to include as due to exposure to contaminate water at Camp Lejeune, is REMANDED. Entitlement to service connection for a left foot disorder, to include as due to exposure to contaminated water at Camp Lejeune, is REMANDED. Entitlement to service connection for a right knee disorder, to include as due to exposure to contaminate water at Camp Lejeune, is REMANDED. REASONS FOR REMANDS The Veteran served honorably in the United States Marine Corps from December 1975 to January 1980. The Veteran's certificate of release from active duty (DD214) reflects that he served as a Wireman and Field Radio Operator. Upon review of the record, the Board concludes that further evidentiary development is necessary. Although the Board sincerely regrets this delay and is appreciative of the Veteran's service to his country, a remand is necessary to ensure VA provides the Veteran with appropriate assistance in developing his claim prior to final adjudication. 1. Entitlement to service connection for bilateral shoulder, cervical spine, thoracolumbar spine, and left foot disabilities is remanded. In June 2009, the Veteran submitted a VA Form 21-526. Thereby, the Veteran initiated claims for service connection for bilateral shoulder, cervical and thoracolumbar spine, and left foot disabilities. In April 2017, the Veteran and his spouse supplied sworn testimony to the undersigned Veterans' Law Judge (VLJ). At that time, the Veteran and his wife indicated that additional lay and medical evidence would be obtained and submitted. In December 2017, the Board addressed the Veteran's claims for service connection for bilateral shoulder, cervical spine, thoracolumbar spine, and left foot disabilities. At that time, the Board remanded the claims to the agency of original jurisdiction (AOJ) for additional development. The Board directed the AOJ to obtain VA examination reports that addressed the existence of any current bilateral shoulder, cervical spine, thoracolumbar spine, and left foot disorders, and whether any of these disorders were related to the Veteran's service in the U.S. Marine Corps, to include his military occupational specialty (MOS) duties and any related in-service injuries. In April 2020, the Board addressed the Veteran's claims for service connection for bilateral shoulder, cervical spine, thoracolumbar spine, and left foot disabilities. At that time, the Board remanded the claims to the AOJ for additional development. The Board directed the AOJ to obtain adequate VA examination reports that addressed the nature and etiology of any currently endured bilateral shoulder, cervical spine, thoracolumbar spine, and/or left foot disorders. In November 2020, the Veteran submitted a VA Form 21-4138. Therein, the Veteran questioned the credentials of the nurse practitioner in December 2018 and the physician in September 2020. The Veteran requested the resumes of both VA examiners. In February 2021, the Board addressed the Veteran's claims for service connection for bilateral shoulder, cervical spine, thoracolumbar spine, and left foot disabilities. The Board noted that, pursuant to Francway v. Wilkie, 940 F.3d 1304 (Fed. Cir. Oct. 15, 2019), once a claimant challenges the competency of a VA medical examiner, VA must satisfy its burden of persuasion as to the examiner's qualifications and respond to the challenge by providing information about the qualifications of a medical examiner to the Veteran. The Board observed that the burden had shifted to VA to establish the December 2018 and September 2020 VA examiner's qualifications. The Board remanded the claims to the AOJ to obtain the curriculum vitae of the December 2018 and September 2020 VA examiners. In July 2021 , the Curriculum Vitae (CV) for the December 2018 and September 2020 VA examiners were associated with the claims file. After review, the Board observes that nothing, but and a license number and expiration date, was supplied for Nurse Practitioner JT. The Board also observes that the CV for doctor WS is substantially more detailed. In September 2021, a statement from the Veteran's spouse was associated with the claims file. Therein, the Veteran's wife relayed that, "Nurse Practitioner (JT's) 14 page resume (if one can call it that) had 'N/A' noted throughout under her Employment/Education and Board Certifications. Only her name/address/phone no/license and license expiration date were noted." The Veteran's wife also relayed that, "(the doctor's) teachings, appointments, awards, societies, and military assignments were all based on Pediatrics/Behavioral Pediatrician. This is why my husband requested their resumes based on the inadequate C&P exams that had been conducted." Importantly, the Veteran's spouse relayed that medical and lay evidence that was identified during the April 2017 Board hearing, to include letters from the Veteran's neurosurgeon(s), were not included in the claims file. As such, a remand is required to obtain these records and associate them with the claims file before the Board can make a determination regarding the Veteran's service connection claims, as VA's duty to assist includes "obtaining sufficiently identified VA medical records or records of examination or treatment, regardless of their relevance." Sullivan v. McDonald, 815 F.3d 786, 790-93 (Fed. Cir. 2016). 2. Entitlement to service connection for a right knee disability, to include as due to exposure to contaminate water at Camp Lejeune, is remanded. In June 2009, the Veteran submitted a VA Form 21-526. Therein, the Veteran initiated a claim for service connection for a right knee disability. In October 2009, a statement from the Veteran was associated with the claims file. Therein, the Veteran relays that, "in regards to my . . . knee problems, these injuries occurred when I was stationed in Hawaii while on a forced march on beach sand in full battle gear and being a ground to air radio operator I was also carrying a Vietnam era radio on my back. Our Gunnery Sergeant decided to jump on my back from the top of a sand dune as I was walking by because he wanted us to expect the unexpected. When the Gunnery Sergeant jumped on my back my knee's buckled from the sudden additional weight tearing the cartilage in both knees, causing the arch of my left foot to collapse has caused me back problems ever since, I had to have one leg in a cast for several weeks after the incidence to help the torn cartilage to heal." In July 2012, the Veteran submitted a statement with his VA Form 9. Therein, the Veteran relayed that, "as stated in my letter to the VA in regards to how the injury occurred during active duty on a forced march in full combat gear (weight approx. 200 lbs, 7thComm. Radio -25 lbs) total weight approx. 225 lbs marching in beach sand when the Veteran's Gunn Sergeant came running off the top of a sand dune onto the Veteran's back land between the top of the veteran's backpack/radio and the back of Veteran's helmet. The overpowering blow to the Veterans neck, back and trauma of the addition extra weight caused the Veteran legs to buckle from the sudden trauma of the weight on Veteran's back and the Veteran ended up in sick bay with injury to his knees at the time. At the time the Veteran was not allowed to say how the injury occurred due to repercussions . . .." In April 2017, the Veteran supplied sworn testimony to the undersigned VLJ. At that time, the Veteran described the incident when the Gunnery Sergeant jumped on his back. The Veteran also testified that his bilateral knee problems started during service with combat jumps off of telephone poles. In September 2018, the Veteran underwent a VA examination that considered the nature and etiology of any currently endured right knee disorder. The examiner noted a diagnosis for right knee patellofemoral pain syndrome. The examiner supplied the following medical history: "Veteran reports knee pain in military service. Attributes to frequent jumps from telephones as part of combat training. States that knee pain worsened after his Gunnery Sgt jumped on his back from a sand dune in 1978. Reports gradual onset of right knee pain since the 1978 or 1979." In December 2018, a medical opinion from a VA examiner was associated with the claims file. Therein, the examiner opined that the claimed right knee condition was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. The examiner supplied the following rationale: "(t)here is no objective medical evidence to support a condition during military service dates of 12/28/1975-01/07/1980 or chronicity for a right knee condition after military service. Diagnosis of a right knee condition is noted over 35 years after service." In September 2019, the Veteran submitted a statement along with a portion of the August 2019 SSOC. Therein, the Veteran posited that, "as noted in my Medical Record, my MOS as a wireman 2512 and field radio operator 2531 involved training exercise with combat jumps off of telephone poles, which caused repeated impact on both knees as noted." In April 2020, the Board addressed the Veteran's claim for service connection for a right knee disorder. At that time, the Board concluded that a preponderance of the evidence stood counter to the Veteran's claim. In March 2021, the Court of Appeals for Veterans' Claims (Court) granted a Joint Motion for Partial Remand (JMPR). At that time, the parties in the JMPR determined that the December 2018 VA examination was not adequate, because the examiner failed to address the lay statements of record. The Court concluded that a remand of the issue was necessary to obtain a new medical examination that adequately addressed the nexus issue. In light of the Court's JMPR, the Board finds that a remand is warranted for the Veteran's claim for service connection for a right knee disability. Consequently, the matters are REMANDED to the agency of original jurisdiction (AOJ) for the following action: 1. Contact the Veteran, and, with his assistance, identify any outstanding records of pertinent medical treatment from VA, Federal, or private health care providers. With the Veteran's assistance obtain copies of any pertinent records and add them to the claims file. Follow the procedures for obtaining the records set forth by 38 C.F.R. § 3.159 (c). If VA attempts to obtain any outstanding records which are unavailable, the Veteran should be notified in accordance with 38 C.F.R. § 3.159 (e). 2. After completion of step 1, schedule the Veteran for a VA examination to determine the nature and etiology of any currently endured right knee disorder(s). The claims file should be made available to, and be reviewed by, the examiner, and it should be confirmed that such records were reviewed. The examiner should: For any current right knee disorder identified, indicate whether the disability is at least as likely as not (50 percent probability or greater) related to the Veteran's service in the U.S. Marine Corps. An explanation for all opinions supplied must be provided. Any opinion(s) must consider and address the Veteran's own history and contentions. If the examiner determines that the Veteran's lay history or statements are not credible, an explanation must be provided. 3. The AOJ must ensure that the examination report requested above is in compliance with the directives of this remand. If any report or opinion is deficient in any manner, the AOJ must implement corrective procedures at once. 4. Thereafter, the AOJ should consider all of the evidence of record and readjudicate the claims for service connection for bilateral shoulder, cervical spine, thoracolumbar spine, left foot, and right knee disabilities. If the benefits sought are not granted, the AOJ must then issue a Supplemental Statement of the Case (SSOC) and allow the Veteran and his representative an opportunity to respond. DAVID L. WIGHT Veterans Law Judge Board of Veterans' Appeals Attorney for the Board RLBJ, 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.