Citation Nr: 21072014 Decision Date: 12/02/21 Archive Date: 12/02/21 DOCKET NO. 17-12 264 DATE: December 2, 2021 REMANDED Entitlement to service connection for a right knee disability is remanded. Entitlement to service connection for a lower back disability is remanded. REASONS FOR REMAND The Veteran served for many years in the United States Army Reserve, including on active duty for training from July 1975 to October 1975 and in June 1990. These matters come before the Board of Veteran's Appeals (Board) from an appeal of an April 2015 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before a Veteran's Law Judge (VLJ) in December 2019. In August 2021, the Veteran was informed that the VLJ who had held his hearing was no longer employed by the Board and offered him an opportunity to participate in a second hearing. The Veteran did not respond. As such, the Board will proceed to address the Veteran's claims on the evidence of record. In March 2020, the Board remanded these matters to obtain outstanding relevant records and to afford the Veteran an examination. Unfortunately, the Board finds that there has not been substantial compliance with these remand directives. Stegall v. West, 11 Vet. App. 268, 271 (1998) (Board remand confers a right on a claimant to compliance with the remand order); Dyment v. West, 13 Vet. App. 141, 147 (1999) (clarifying that substantial compliance with Board remand is required). The Veteran asserts that he injured his back and knee in June 1990, while on active duty for training when he fell down ten feet from a rope bridge on an obstacle course. See December 2019 Hearing Testimony; April 1990, Service Personnel Records. The Veteran reports that the incident occurred on the last day of training, and therefore he did not have an opportunity to go to sick call. Id. However, the Veteran reports that he has been taking anti-inflammatories ever since the incident to deal with the pain. Id. The Veteran also noted during the hearing that he had a housefire in 2007, which destroyed some of his records. Id. Additionally, it should be noted that the Veteran had a total knee replacement of his right knee in 2012. Id. The Veteran was afforded examinations in December 2020 for his knee and back. See December 2020 VA Knee Examination; December 2020 VA Back Examination. With regard to the Veteran's knee, the VA examiner reported a diagnosis of knee strain and degenerative arthritis. However, the examiner opined that the knee disability was less likely than not service-related because the Veteran had no documentation of treatment until 1997, he had passed all his physical requirements while in service, and therefore his knee injury in 1990 was acute. See December 2020 VA Knee Examination Opinion. With regard to the Veteran's back, the same VA examiner reported a diagnosis of lumbosacral strain and intervertebral disc syndrome. However, in exactly the same language and reasoning as the knee examination, the examiner reported that the back disability was less likely than not service-related because the Veteran had no documentation of treatment until 1997, he had passed all of his physical requirements while in service, and therefore his back injury in 1990 was acute. See December 2020 VA Back Examination Opinion. Unfortunately, another remand is necessary as the Board finds the opinions rendered inadequate for its purposes, as the examiner did not review all of the records available, did not properly address the Veteran's lay statements, and did not provide an opinion on whether the arthritis of the knee began within one year of service. First, the examiner noted in the evidence review section of both the knee examination and the back examination that "No STRs or LOD in C-file." See December 2020 VA Knee Examination; December 2020 VA Back Examination. There are service treatment records (STRs) in the file, which are listed as being received February 2015. The Veteran is entitled to an opinion that has reviewed all of the pertinent records in the file. Accordingly, a remand for an addendum opinion is necessary. Second, the December 2020 VA examiner's opinion did not properly address the Veteran's lay statements. While the examiner highlighted the fact that the Veteran passed his physical requirements while in service, the Veteran has responded by asserting that he was able to do so by taking "Tylenol, Aleve, muscle relaxants, using Biofreeze, and various other agents" to get by and endure the pain. See January 2021 E-mail from the Veteran. While documentation of the injuries dates back to 1997, the Veteran has asserted that he has been taking anti-inflammatories since the date of the injury. See September 1997 Confidential Health History form from C.C.C.; December 2019 Hearing Testimony. While the examiner may choose not to believe a Veteran's self-reported history, an examiner is not free to disregard the Veteran's reports of symptoms in and since service. See Layno v. Brown, 6 Vet. App. 465, 469-70 (Vet. App. 1994); Dalton v. Nicholson, 21 Vet. App. 23 (Vet. App. 2007). The Board may not rely on an opinion that disregards lay evidence that is potentially competent to support the presence of disability, even where the lay evidence is not corroborated by contemporaneous medical evidence. See Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006). Third, arthritis is listed as a "chronic disease" under 38 C.F.R. § 3.309(a) and may be connected to service if it manifested to a compensable degree within one year of the Veteran's separation from active duty military service. 38 C.F.R. § 3.307(a)(3). While the examiner opined that the knee injury was acute only, he also diagnosed the Veteran with degenerative arthritis. See December 2020 VA Knee Examination. The VA examination is silent on whether the Veteran's reported knee pain in service could be a manifestation of his degenerative arthritis during service. Finally, the examiner determined it was "less likely than not" that the Veteran's disabilities were connected to service. The language of the previous remand entitled the Veteran to the benefit of the doubt if the evidence was in equipoise (50 percent probability or greater). Following direction from the United States Court of Appeals for the Federal Circuit in Lynch v. McDonough, 999 F.3d 1391 (Fed. Cir. 2021), the proper standard of review is whether the factors are in an "approximate balance." Lynch held that the Veteran is entitled to the benefit of the doubt when the evidence is in an approximate balance i.e. nearly equal and does not require the evidence to be in exact equipoise. Id. The matters are REMANDED for the following action: 1. Contact the Veteran and all current representatives and request their assistance in identifying any outstanding relevant records. Make reasonable attempts to obtain all identified outstanding records and associate them with the Veteran's claims file. 2. After all outstanding records are associated with the file, obtain addendum medical opinions, to include new examinations if deemed necessary, on the Veteran's knee and back injuries. The clinician(s) should review all medical records in the claims file, including the service treatment records obtained in February 2015. The clinician(s) should opine as to whether the Veteran's right knee and back disabilities at least as likely as not (an approximate balance of negative and positive evidence) first manifested during or were otherwise caused by the Veteran's military service, to include reports of knee and back pain dating back to 1990. See December 2019 Hearing Testimony. With regard to any diagnoses of arthritis, the clinician(s) should opine whether the Veteran's arthritis at least as likely as not (an approximate balance of negative and positive evidence) manifested (e.g. as pain resulting in some loss of motion) within one year of his discharge from active service; or, alternatively, was noted in service with continuity of symptomatology since service. See 38 C.F.R. § 3.309(a). The clinician(s) should consider the Veteran's competent and credible lay statements about the continuity of relevant symptoms including knee and back pain from the time of his military service through the present. For example, the Veteran reported having leg problems in 1997, while receiving treatment for back pain. See September 1997 Confidential Health History form from C.C.C. Additionally, the Veteran reports using various treatments to endure the pain during his in-service physical examinations. See January 2021 E-mail from the Veteran. In providing the requested opinions, the clinician(s) should consider the Veteran's description of his post-service symptoms. If there is any medical reason to accept or reject the proposition that the Veteran had his reported symptoms in service or up to a year after service and thereafter represented the onset of his current disability, this should be explained. (Continued on the next page) If it is not possible to provide an opinion without resorting to speculation, the clinician(s) must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have knowledge or training). K.A. KENNERLY Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Maisel, S. Alexander 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.