Citation Nr: 21065558 Decision Date: 10/26/21 Archive Date: 10/26/21 DOCKET NO. 14-38 730 DATE: October 26, 2021 REMANDED Entitlement to service connection for a lumbar spine disability is remanded. Entitlement to service connection for a cervical spine disability is remanded. Entitlement to service connection for a bilateral knee disability is remanded. REASONS FOR REMAND The Veteran served on active duty from January 1972 to June 1974. This case is before the Board of Veterans' Appeals (Board) on appeal from a September 2014 rating decision by a Department of Veterans Affairs (VA) Regional Office. In September 2015, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the electronic claims file. In April 2018, the Board denied the Veteran's service connection claims for a lumbar spine disability, a cervical spine disability, and a bilateral knee disability, and the Veteran appealed this decision to the United States Court of Appeals for Veterans Claims (Court). In February 2019, the Court granted a Joint Motion for Remand to vacate the Board's April 2018 decision and remanded the matters for readjudication. In particular, the Court found that additional medical opinion is required to satisfy the duty to assist, because the Veteran's testimony regarding his in-service injury was offered subsequent to the September 2014 VA examination. In September 2019 and September 2020, the Board remanded the matters for more development. Now the matters are returned to the Board. However, the Board finds that additional development is necessary prior to final adjudication. Since the latest Board remand in September 2020, the Veteran underwent VA examinations for his claimed disabilities of lumbar spine, cervical spine, and bilateral knees in June 2021. The June 2021 VA examiner also provided medical opinions on the etiology of the Veteran's claimed disabilities. However, the Board finds that the June 2021 opinions were inadequate and addendum opinions should be obtained in order to make fully informed decisions. First, the June 2021 VA examiner opined that the Veteran's lumbar spine condition was less likely than not incurred in or caused by his claimed in-service injury, event, or illness. The examiner acknowledged that the Veteran did have altercation with perpetrators in service, but there is no record of a chronic lumbar spine injury. To support this finding, the examiner noted that the Veteran did not complain of lower spine condition during his separation examination. In this regard, however, the Board notes that the Veteran indicated that he had recurrent back pain at separation. See May 8, 1974 Report of Medical History (the Veteran clearly crossed out a check mark for a negative response to "recurrent back pain" and checked "yes" for the category). The Veteran's indication of recurrent back pain at separation should be considered for a medical opinion as the Veteran is competent to report his symptoms. It appears to the Board that the June 2021 examiner's finding of the Veteran's in-service lumbar spine injury as a non-chronic type was solely based on the lack of complaints regarding his back during the separation examination, because the June 2021 examiner did not provide any other explanation or reasoning. Obtaining a medical opinion which adequately addresses the Veteran's testimony regarding his in-service injury and symptoms associated with the injury is particularly important in this case as the Court and the Board have previously found that doing so was required to satisfy the VA's duty to assist. Next, the June 2021 examiner opined that the Veteran does not have a chronic neck condition that began while in service. The examiner stated that the Veteran had more than one injury to the neck after separation that caused a chronic neck condition. However, as to the Veteran's in-service injuries, the examiner only noted that the Veteran did have a neck complaint after an altercation in service without providing any further explanation of the nature of the Veteran's in-service neck complaint. Also, the Board notes that there was an additional neck injury reported by the Veteran in service after a motorcycle accident, which was not considered by the June 2021 examiner. See September 28, 1973 Emergency Clinic Service Treatment Record (STR) (the Veteran reported neck pain following a motorcycle accident and the examiner's impression was "whiplash" of the neck). Based on above, the Board finds that the June 2021 medical opinion regarding the Veteran's claimed neck disability was inadequate and an addendum opinion should be obtained prior to final adjudication of the matter. Further, the June 2021 examiner provided a negative etiology opinion for the Veteran's service connection claim for a bilateral knee condition. The examiner concluded that the Veteran's multiple in-service complaints of pain and injury to the right knee and decreased sensory and reflex to the knees due to his lower back did not lead to a chronic condition, but the examiner failed to provide any reasoning to such conclusion. Also, the Board notes that the details of documented knee injuries during the Veteran's service were not discussed by the June 2021 examiner. See e.g., September 25, 1972 STR (the Veteran was jumped from behind and was forced to the ground; had complained of left knee and left hand injuries); April 19, 1974 STR (the Veteran was hit with a bat on the right knee; reported sore right knee); April 21, 1974 STR (the Veteran was seen for a follow-up for severe contusion of the right knee and reported the knee pain radiated to his ankle). Therefore, the Board finds that the June 2021 VA examiner's opinion for the Veteran's bilateral knee condition is also inadequate and a remand of the matter is required to obtain an addendum opinion. Accordingly, the matters are REMANDED for the following action: 1. The Agency of Original Jurisdiction (AOJ) must obtain addendum opinions from the June 2021 VA examiner or another appropriate medical examiner regarding the Veteran's service connection claims for a lumbar spine condition, a cervical spine condition, and a bilateral knee condition. The examiner must review the Veteran's claims file and a copy of this REMAND order before rendering the requested addendum opinion. The Board emphasizes that the examiner must provide a complete written rationale for any opinion offered. The examiner must opine whether the Veteran's current lumbar spine condition is at least as likely as not (50 percent or greater probability) related to his in-service injury or had its onset in service. For the opinion for lumbar spine condition, the examiner is asked to specifically consider the Veteran's September 2015 hearing testimony regarding his in-service lumbar spine injury and the STRs documenting the injury, including the Veteran's complaint of recurrent back pain at separation. See May 8, 1974 Report of Medical History. The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports must be acknowledged and considered in formulating any opinion. If the examiner rejects the Veteran's reports, the examiner must provide an explanation for such rejection. The examiner must opine whether the Veteran's current cervical spine condition is at least as likely as not (50 percent or greater probability) related to his in-service injury or had its onset in service. For the opinion for cervical spine condition, the examiner is asked to specifically consider the Veteran's September 2015 hearing testimony regarding his in-service cervical spine injury and the STRs documenting the injury as well as the Veteran's complaint of neck pain after an in-service motorcycle accident. See September 28, 1973 Emergency Clinic STR (the Veteran reported neck pain following a motorcycle accident and the examiner's impression was "whiplash" of the neck). The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports must be acknowledged and considered in formulating any opinion. If the examiner rejects the Veteran's reports, the examiner must provide an explanation for such rejection. The examiner must opine whether the Veteran's current bilateral knee condition is at least as likely as not (50 percent or greater probability) related to his in-service injury or had its onset in service. For the opinion for a bilateral knee condition, the examiner is asked to specifically consider the Veteran's September 2015 hearing testimony regarding his in-service knee injury and the STRs documenting injuries to his left and right knee on two separate incidents. See e.g., September 25, 1972 STR (the Veteran was jumped from behind and was forced to the ground; had complained of left knee and left hand injuries); April 19, 1974 STR (the Veteran was hit with a bat on the right knee; reported sore right knee); April 21, 1974 STR (the Veteran was seen for a follow-up for severe contusion of the right knee and reported the knee pain radiated to his ankle). The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports must be acknowledged and considered in formulating any opinion. If the examiner rejects the Veteran's reports, the examiner must provide an explanation for such rejection. 2. After completing the above actions and any other necessary development, the issues on appeal must be readjudicated. If the claims remain denied, a Supplemental Statement of the Case must be provided to the Veteran and his representative. After the Veteran and his representative have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. MICHAEL LANE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. E. Kim, 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.