Citation Nr: 21069389 Decision Date: 11/18/21 Archive Date: 11/18/21 DOCKET NO. 17-49 613 DATE: November 18, 2021 REMANDED Entitlement to service connection for a right knee disability is remanded. Entitlement to service connection for a lower back disability, to include lumbar spine degenerative disc disease, is remanded. Entitlement to service connection for a left leg disability, to include left lower extremity radiculopathy, is remanded. REASONS FOR REMAND The Veteran had active service from August 1997 to December 1999. He also served in the Air National Guard and Reserves from December 1999 to September 2005 and the Army National Guard from August 2009 to June 2010. These issues were previously before the Board in January 2020, at which time they were remanded for further development. Unfortunately, remand is again warranted. 1. Entitlement to service connection for a right knee disability is remanded. In its December 2020 decision, the Board directed the agency of original jurisdiction (AOJ) to schedule the Veteran for a VA examination to address the nature and etiology of his claimed right knee disability. The Veteran underwent VA examination in July 2020 at which time he was diagnosed with iliotibial band syndrome. Upon examination, the Veteran reported gradual onset of right knee issues and pain between 1996 and 1999 without having a specific knee injury. He endorsed difficulty running more than a quarter mile due to right knee pain but denied loss of range of motion with repeated use over time. In opining against a relationship to service, the VA examiner noted only that the first records indicating right knee issues were in November 2009, which was post-military service. The examiner's rationale did not include discussion of the Veteran's own assertion that his pain began in, and has continued since service in the 1990s. Remand is required to obtain a more thorough medical opinion as to the etiology of the Veteran's knee disability. 2. Entitlement to service connection for a lower back disability, to include lumbar spine degenerative disc disease, is remanded. 3. Entitlement to service connection for a left leg disability, to include left lower extremity radiculopathy, is remanded. Evidence indicates that there are outstanding relevant Community Care treatment records. Specifically, the Veteran's VA treatment records indicate that the Veteran was referred to and seen by Mercy Spine and Neurosurgery for Community Care between December 2019 and February 2020. Community Care records dated January 2020 were scanned into the VistA Imaging portion of the Veteran's medical records. These records were not, however, associated with the VA treatment record and, thus, were not included as part of the Veteran's claims file. Additionally, the Veteran underwent a total disc replacement in February 2020, and these records have not been associated with the claims file. Accordingly, the AOJ must attempt to associate the outstanding treatment records with the claims file. Further, open medical questions remain as to whether the Veteran's current low back and left leg disabilities clearly and unmistakably preexisted service and/or whether it is clear and unmistakable that these disabilities were not aggravated by service. The Veteran's service treatment records indicate treatment for back pain on numerous occasions with the Veteran reporting pre-service onset. See August 1997 Screening Note of Acute Medical Care (where the Veteran reported upper-mid back pain, chronic history of back pain, and a prior diagnosis of herniated discs approximately four years previously); October 1997 Chronological Record of Medical Care (indicating continuing complaints of low back pain with the Veteran reporting a four year history of back pain); July 1999 Consultation Sheet (indicating recurrent upper left back pain for six years); October 1999 Reynolds Army Community Hospital (reporting injury at age 15 when a stack of lumber fell on Veteran, and reports of ongoing symptoms of back pain since that injury). On a November 1999 Report of Medical History, the Veteran checked yes for "recurrent back pain or any back injury." The examiner indicated the Veteran had constant back pain that increased with activity due to suspected scoliosis and injury in 1993. Additionally, the Veteran reported back injuries in August 1997, March 1998, and March 1999. In the Board's January 2020 decision, the AOJ was directed, on remand, to provide the Veteran with a new examination and obtain a new opinion regarding the etiology of his back disorder. Specifically, the VA examiner was asked to opine whether the Veteran's scoliosis was a congenital disease or defect, and if considered a congenital defect whether there was a different lower back disability superimposed during the Veteran's service. For all other low back diagnoses, the examiner was asked to opine whether there was clear and unmistakable evidence that the disability preexisted service. Upon examination in August 2020, the VA examiner noted that the Veteran's entire file was not available for review. The examiner opined that the Veteran's scoliosis was a congenital defect; however, she did not properly answer the questions regarding clear and unmistakable evidence posed by the Board. Once VA undertakes an examination, an adequate one must be produced. Barr v. Nicholson, 21 Vet. App. 303 (2007). The Board notes that the evidence of record also contains July 2017 and February 2020 opinions from Dr. S.D., the Veteran's physician since childhood. In his opinions, Dr. S.D. indicated that the Veteran did not have any back-related problems prior to active service and that, while on active duty in 1999, the Veteran sustained a low back injury causing pain that had plagued him ever since. Dr. S.D., in the opinions provided, does not adequately reconcile his conclusions with the service treatment records referenced above, which reference pre-existing back pain. Key questions therefore remain as to the etiology of the Veteran's spine and leg conditions. Remand is necessary so that outstanding relevant treatment records may be associated with the claims file, and an adequate medical opinion may be obtained. The matters are REMANDED for the following action: 1. Obtain and associate with the claims file all Mercy Spine and Neurosurgery for Community Care records dated between December 2019 and February 2020, including those that were scanned into VistA Imaging. 2. Obtain an addendum opinion from an appropriate clinician addressing whether the Veteran's right knee disability is at least as likely as not related to his active service. In answering this question, the VA examiner is asked to specifically address the Veteran's contentions regarding gradual onset of right knee issues and pain between 1996 and 1999 without having a specific knee injury. 3. Obtain an addendum opinion from an appropriate clinician regarding the Veteran's spine and left lower leg disabilities. The examiner is asked to provide an opinion responding to the following questions: (a.) Was the Veteran's mild scoliosis diagnosed in November 1999 a congenital disease (capable of worsening) or a congenital defect. (b.) If the mild scoliosis was a congenital defect, opine as to whether the Veteran has a different lower back disability that was superimposed on the mild scoliosis during service, resulting in additional disability. (c.) For each other lower back disability, is it clear and unmistakable (i.e., undebatable) that such existed prior to his entrance into active duty? (d.) For each disability where the answer to Question (c) is "yes", is it also clear and unmistakable (i.e., undebatable) that such was NOT aggravated beyond its natural progression during his period of active service? (e.) For any disability where the answer to either Question (c) or Question (d) is "no," assume as true that the Veteran entered service in sound condition, and that the spine disability did not preexist service. Based on this assumption, is it at least as likely as not (50 percent or greater probability) that the Veteran's current spine disability had its onset in, or is otherwise related to the Veteran's period of active-duty service? In answering the above questions, the examiner is asked to discuss the history of any pre-service and in-service injuries and symptomatology, as well as comment on the letters from Dr. S.D. indicating that the Veteran did not have back-related problems prior to active duty. (Continued on Next Page) 4. After accomplishing all requested action, as well as any additional action deemed warranted, readjudicate the Veteran's claims based on the entirety of the evidence. If any claim remains denied, the Veteran and his representative should be issued a supplemental statement of the case. V. Chiappetta Veterans Law Judge Board of Veterans' Appeals Attorney for the Board L. Bristow Williams, 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.