Citation Nr: 21066515 Decision Date: 11/01/21 Archive Date: 11/01/21 DOCKET NO. 17-39 899 DATE: November 1, 2021 REMANDED Service connection for residuals of heat stroke. Service connection for a left knee disability. REASONS FOR REMAND The Veteran served on active duty from July 1972 to July 1975, with additional service in the Navy Reserve. The case is on appeal from a November 2016 rating decision. In an April 2020 decision, the Board granted service connection for tinnitus and denied service connection for hearing loss. At that time, the Board also remanded the claims of service connection for residuals of a heat stroke and a left knee disability for additional development and adjudication. 1. Service connection for residuals of heat stroke. 2. Service connection for a left knee disability. These issues are remanded as there was not substantial compliance with the Board's April 2020 remand directives. See Stegall v. West, 11 Vet. App. 268 (1998); see D'Aries v. Peake, 22 Vet. App. 97, 104-05 (2008). In its April 2020 decision, the Board remanded the present matters for a VA examination and opinion to identify and address the etiology and nature of the claimed disabilities/residuals of a heat stroke. Specifically, the Board noted that the Veteran's STRs are unavailable for review despite VA's efforts to obtain them. To that effect, the Board stated that supporting lay and medical evidence suggesting the existence of an in-service event and the longstanding history of left knee pain shown by the Veteran's VA treatment records, along with the fact that his STRs are not available for review, were sufficient to trigger VA's duty to assist and afford the Veteran VA examinations in connection with his claims. The additional reasons for remand included in the April 2020 Board's decision are incorporated herein by reference. Pursuant to the April 2020 Board's remand, the Veteran was afforded VA examinations in September 2020. With respect to the claim for residuals of a heat stroke, the Veteran was afforded a VA artery and vein conditions examination. The Veteran reported that ever since the heat stroke in 1973, "he has experienced concentration issues." The examiner indicated that the Veteran does not have any vascular disease condition and opined that "the claimed heat stroke" was not likely incurred in or caused by "the residuals of a heat stroke during service." The examiner noted that lay statements only constitute subjective evidence and STRs are silent for objective evidence of a heat stroke event. Lastly, the examiner indicated that 1979 Navy Reserve reenlistment records do not indicate complaints of a heat stroke or related residuals. With respect to the left knee disability, the examination report reflects a diagnosis of left knee strain showing 1973 as the date of diagnosis. The Veteran reported that when he had a heat stroke in service, he fell on his knee and injured it. The Veteran asserted that he continues to experience chronic left knee pain that worsens with use, and which eventually resulted in a left knee surgery at some point in 2000. The examiner opined that the claimed disability was not likely incurred or caused by the left knee disability during service as STRs are silent for objective evidence of a left knee injury. Again, the VA examiner noted that 1979 Navy Reserve reenlistment records show no issues pertaining to left knee concerns or related residuals and that lay statements only constitute subjective evidence. First, the Board notes that the examiner appears to have materially relied on an absence of evidence disregarding the fact that the Veteran's STRs are unavailable for review despite VA's efforts to obtain them, and the lay statements accounting for competent lay evidence with respect to what was observed by his shipmate (i.e. See April 2019 buddy lay statement from Mr. K.J), and the symptoms experienced by the Veteran ever since the injury. The Veteran is competent to testify regarding continuous knee pain since service and such evidence should not be merely disregarded as subjective evidence. See Joyner v. McDonald, 766 F.3d 1393 (Fed. Cir. 2014). Second, the VA examiner failed to explain why, as a medical matter, the Veteran would have sought treatment or complained of the conditions after service, or why an absence of treatment (as opposed to symptoms) is otherwise medically significant in this case. See McKinney v. McDonald, 28 Vet. App. 15, 30 (2016); Fountain v. McDonald, 27 Vet. App. 258, 272-75 (2015); Buczynski v. Shinseki, 24 Vet. App. 221, 223-24 (2011). Ultimately, and with respect to any other residuals of a heat stroke, the Board notes that the Veteran was afforded a VA artery and veins conditions examination, whereas the Veteran seems to be claiming, besides the left knee injury, concentration issues which he asserts have been reoccurring since his fall due to the in-service heat stroke. In that regard, a VA audiology evaluation and otologic report shows that the Veteran suffered a head injury while in service as a result of a fall associated with a heat stroke. See March 2, 2016 VA progress notes. The Board notes that the April 2020 VA examination in connection with this claim is inadequate as it does not appear to be the ideal examination to identify the actual residuals the Veteran may be seeking service connection for. When VA provides a medical examination, the examination must be adequate. Barr v. Nicholson, 21 Vet. App. 303, 311-312 (2007). Furthermore, the examiner referred to the claimed disability as "heat stroke," whereas the Veteran seems to be claiming residuals and not a heat stroke per se. VA is required to read claims sympathetically because veterans are usually not medical experts and cannot be expected to provide a precise medical diagnosis or cause of their condition. Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). In an August 2021 appellate brief, the Veteran's representative VSO indicated that the VA examinations afforded to the Veteran are inadequate as "the examiner's rationale is based largely, if not entirely, on the observation that "service treatment records are silent for objective evidence" of the claimed disabilities, despite the Board's finding that the Veteran's STRs are not available for review. For the reasons set forth above, the Board finds that there has not been substantial compliance with the Board's previous remand directives and the claims must remanded for new VA examinations and opinions to identify the claimed residuals, and to clarify the nature and etiology of all claimed disabilities. The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination by an appropriate medical professional in connection with the residuals of a heat stroke and left knee disability claims. (i) With respect to the left knee disability: The examiner should first identify whether the Veteran has any condition, to include a left knee disability, that is considered a residual of the reported in-service fall due to a heat stroke. For any identified left knee disability, the examiner should then provide an opinion as to whether it is as likely as not (50 percent or greater probability) that the identified condition or disability had its onset during, or is otherwise related to, the Veteran's reported in-service event. Consideration should be given to: (1) The Veteran's statements as to the onset of his left knee pain and symptoms experienced ever since his release from the hospital in 1973; (2) the lay statements from Mr. K.J. as to witnessing the Veteran falling on the ground from a heat stroke; (3) the hospital admission report received in November 2016 indicating the Veteran was admitted at the Lemoore, CA Naval hospital for 5 days; and (4) VA treatment records progress notes acknowledging the Veteran's report of a longstanding history of left knee pain. (ii) With respect to additional residuals of a heat stroke: The examiner should first identify whether the Veteran has any condition, to include concertation issues, that is considered a residual of the reported in-service fall/head injury due to a heat stroke. For any identified condition, the examiner should then provide an opinion as to whether it is as likely as not (50 percent or greater probability) that the identified condition or disability had its onset during, or is otherwise related to, the Veteran's reported in-service event. Consideration should be given to: (1) March 2, 2016 progress notes showing that the Veteran had a head injury associated to a fall from a heat stroke; (2) his statements that he has experienced concentration issues ever since; and (3) the lay statements from Mr. K.J. as to witnessing the Veteran falling on the ground from a heat stroke. A complete rationale should be provided for any opinion reached. RYAN T. KESSEL Veterans Law Judge Board of Veterans' Appeals Attorney for the Board William Pagan, 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.