Citation Nr: 21068715 Decision Date: 11/12/21 Archive Date: 11/12/21 DOCKET NO. 15-01 729 DATE: November 12, 2021 ORDER The claim of entitlement to service connection for a back disability is granted. REMANDED The claim of entitlement to service connection for a right knee disability is remanded. The claim of entitlement to service connection for a left knee disability is remanded. The claim of entitlement to service connection for a neck disability is remanded. FINDING OF FACT Resolving all doubt in favor of the Veteran, his back disability was caused by his active service, he had back pain in and since service, and he has received treatment for his back within one year of discharge. CONCLUSION OF LAW The criteria for service connection for a back disability have been met. 38 U.S.C. §§ 1110, 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.303, 3.304. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had honorable active duty service in the United States Navy from May 1966 to January 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a Department of Veteran's Affairs (VA) Regional Office (RO) rating decision issued in April 2014. The Veteran testified before the undersigned Veterans' Law Judge (VLJ) in January 2018. This matter was then remanded in April 2021 for further development and to afford the Veteran VA examinations for his claimed disabilities. In August 2021, the RO issued a supplemental statement of the case (SSOC). This matter is now properly before the Board. Service Connection Service connection is warranted where the evidence of record establishes that an injury or disease resulting in a disability was incurred in the line of duty during active military service or, if an injury or disease pre-existing such service, was aggravated thereby. 38 U.S.C. § 1110, 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires (1) evidence of a current disability; (2) evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F. 3d 1163, 1167 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498, 506 (1995). Service connection may also be granted for any disease diagnosed after the military discharge, when all the evidence, including that pertinent to the period of military service, establishes that the disease was incurred during the active military service. 38 U.S.C. §§ 1113(b); 38 C.F.R. §§ 3.303(d). Service connection may be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. §§ 3.303, 3.310. In order to prevail on the theory of secondary service connection, there must be evidence of a current disability; evidence of a service-connected disability; and evidence establishing a connection between the service-connected disability and the current disability. Wallin v. West, 11 Vet. App. 509, 512 (1998). The Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for the evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. See Masors v. Derwinski, 2 Vet. App. 181 (1992). Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded to the Veteran. 1. Entitlement to service connection for back disability. The Veteran contends that his back disability is due to his active-duty service. The Veteran was afforded a hearing before the undersigned VLJ in November 2019. The Veteran testified that he flew with pilots two or three days per week and sometimes daily while in service. The Veteran's service personnel records do reflect flight training during service. The Veteran testified that he began feeling pain while in service as a result of the hard landings in aircrafts and a motor vehicle accident he had while in service. The Veteran submitted a letter from his chiropractor indicating that he has received treatment for his lower back conditions since the 1970s. While the Veteran's chiropractor has not indicated a particular date in which treatment was started, the Veteran has provided sworn testimony that he began treatment within one year of discharge from service. In July 2021, the Veteran was afforded a VA examination. The July 2021 VA examiner noted that the entire claims file was reviewed. The examiner confirmed that the Veteran does have a diagnosis of thoracic strain, lumbar degenerative disc disease with stenosis with synovial cysts with radiculopathy of the left lower extremity (femoral nerve). The examiner considered the letter from the Veteran's chiropractor dated November 2019 and the Veteran's injuries in service from hard landings. The examiner opined that the Veteran's back disability was at least as likely as not incurred in or caused by the claimed in-service injury, event, or illness. The examiner further provided rationale that based on the letter from the Veteran's chiropractor, the Veteran's current diagnosis, and the Veteran's testimony regarding hard landings in aircrafts and motor vehicle accident, that a nexus has been established. The Board finds that while there isn't any clear evidence from the chiropractor as to the exact date in which the Veteran started receiving treatment in the 1970s, the Veteran's testimony is credible, competent, and highly probative. The Veteran testified that he had back pain while in service. The Veteran also testified that he experienced back pain after service and that he received treatment within one year of discharge. Furthermore, the Veteran does have a current diagnosis of thoracic strain, lumbar degenerative disc disease with stenosis with synovial cysts with radiculopathy of the left lower extremity (femoral nerve). Finally, a nexus between the Veteran's claimed in-service injury and current diagnosis has been established by the July 2021 VA examiner and through the Veteran's own testimony that he has experienced back pain while in and since service. The Board recognizes that a 2001 medical document suggests that the Veteran had "recent onset of symptoms of back pain" and that a June 2001 medical document indicated the onset of symptoms of back pain since 1996. However, the Board does not find this information to be of sufficient significance to call into question the credibility of the assertions of the Veteran and his chiropractor of symptoms dating back to the 1970s. First, the two documents are in and of themselves inconsistent with one referring to a recent onset and another referring to an onset of at least 5 years earlier. Second, the documents are vague, and it is not clear whether they are based on medical documentation or simply assertions made at the time of treatment. As such, the Board finds the Veteran's sworn testimony, the assertions of his treating chiropractor and the medical opinion of the VA examiner of record to be far more probative in this case. Resolving all reasonable doubt in favor of the Veteran, the Board finds that the Veteran is entitled to service connection for his back disability. REASONS FOR REMAND 2. The claim of entitlement to service connection for a right knee disability. See Paragraph 4. 3. The claim of entitlement to service connection for a left knee disability. See Paragraph 4. 4. The claim of entitlement to service connection for a neck disability. The Board has thoroughly and sympathetically reviewed the Veteran's claims file. The Board finds that the RO failed to ensure that all private treatment records were obtained. The RO sent the Veteran and his representative a subsequent development letter to a PO Box address which previously had returned mail when a letter was sent from the RO to the Veteran in October 2015. The Board finds that a second development letter should be sent to the Veteran and the Veteran's representative to ensure receipt. Furthermore, the RO should take steps to ensure that the Veteran's correct address is in the file. The Board further finds that the July 2021 examiner failed to consider the Veteran's non-VA medical treatment records from 1999 which included an MRI of the Veteran's spine and his service treatment records which indicate knee contusions as a result of a motor vehicle accident. Finally, the Board finds that the July 2021 VA examiner failed to consider all of the Veteran's lay statements regarding his pain in his left knee, right knee, and cervical spine in and since service. The Board find's that the RO should also consider the Veteran's claims to service connection for right knee, left knee, and neck disabilities in light of his now service-connected back disability. Further, there is testimony within the record that the Veteran claims that he injured his knees in the motor vehicle accident during service. The July 2021 examiner noted that there weren't any service treatment records noting a left knee condition. The Board acknowledges that the Veteran's military personnel record notes a right knee contusion in September 1968, however the examiner failed to address whether the right knee disability could have been service connected. The Board further acknowledges that the Veteran testified at the hearing before the undersigned VLJ that he believes his left knee was impacted due to his overcompensation or change in gait when walking. The Board has asked the RO to further develop the Veteran's claims and for the VA examiner to consider the Veteran's lay statements. The Board finds that further development is needed to determine the nature and etiology of the Veteran's knee disability. The Board regrets the further delay, but remand is necessary to ensure compliance with prior Board remand instructions. The Board provided specific remand instructions in which the July 2021 VA examiner and the RO did not comply. Compliance with remand directives is not optional or discretionary, and the Board errs as a matter of law when it fails to ensure compliance. Stegall v. West, 11 Vet. App. 268 (1998). Therefore, remand is necessary to obtain all outstanding records, to consider all the Veteran's lay statements and testimony (which the Board finds to be competent, credible, and probative). The matters are REMANDED for the following action: 1. Obtain any relevant, outstanding VA treatment records and private treatment records that are not already associated with the claims file. The RO should make two attempts to obtain records. Contact the Veteran and the representative of record in order to identify any outstanding non-VA treatment records regarding the issues on appeal, to include referenced chiropractic records. If non-VA providers are identified, obtain releases for those records. Make all reasonable attempts to obtain the non-VA treatment records and associate them with the claims file. If such records cannot be obtained, inform the Veteran and the representative of record, and afford an opportunity to provide these outstanding records. 2. Once the evidentiary development is completed, obtain an addendum opinion from a qualified clinician to opine on the nature and etiology of the Veteran's claimed bilateral knee disability and cervical spine disability. It is left to the discretion of the examiner to determine whether a physical examination is necessary. The examiner must review the entire claims file, including a copy of this Remand. The examiner must consider the Veteran's lay statements. After a thorough review of the record, the examiner must respond to the following: (a) List all disabilities of the left knee, right knee, and cervical spine which the Veteran is presently diagnosed. (b) Consider the Veteran's right knee injury from September 1968 during a motor vehicle accident while the Veteran was in service, and whether the Veteran's current bilateral knee disability is etiologically related to the right knee injury incurred in service. (c) For each identified disability, opine as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran's identified disabilities (of the right knee, left knee, and cervical spine) had its onset during active-duty service, related to an incident of service, or began within one year after discharge from active service. The examiner is asked to specifically address and consider the Veteran's reports of aircraft hard landings and the 1968 motor vehicle accident. (d) For each identified disability, opine as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran's identified disabilities (of the right knee, left knee, and cervical spine) were proximately due to or the result of the Veteran's service-connected back disability. 3. A complete rationale must be provided for all opinions. If the examiner cannot provide the requested opinion without resorting to speculation, he or she should provide an explanation stating why this is so. B. MULLINS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board H. Hailu, 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.