Citation Nr: 21072310 Decision Date: 12/02/21 Archive Date: 12/02/21 DOCKET NO. 14-04 459 DATE: December 2, 2021 REMANDED Entitlement to service connection for cervical spine disability is remanded. Entitlement to an initial rating in excess of 10 percent for left knee disability is remanded. Entitlement to an initial rating in excess of 10 percent for right knee disability is remanded. REASONS FOR REMAND The Veteran served on active duty from January 1975 to January 1980. These issues come before the Board of Veterans' Appeals (Board) on appeal of multiple rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO). Specifically, the appeals come from a February 2013 rating decision for the issue of service connection for cervical spine and a February 2018 rating decision for the issues of right and left knee increased ratings. In June 2019, the Veteran testified at a Board videoconference hearing before the undersigned. A transcript of the hearing is of record. By way of background, in December 2020, the Board denied, in pertinent part, service connection for cervical spine disability and increased ratings for the right and left knee disabilities. The Veteran appealed the denials in the December 2020 Board decision to the U.S. Court of Appeals for Veterans Claims (Court). In July 2021, the Court issued a Joint Motion for Partial Remand (JMPR) and vacated and remanded the Board decision regarding these claims. As such, the claims have now been returned to the Board for action consistent with the Joint Motion. Entitlement to service connection for cervical spine disability is remanded. The Veteran asserts that her current neck disability is related to her in-service motor vehicle accident. See June 2019 Hearing Transcript. As highlighted in the July 2021 JMR, this claim was remanded because the Board did not provide adequate reasons or bases when it determined that "STRs demonstrating an injury causing cervical spine pain would not show a direct impact to the neck." Before adjudicating the matter, the Board finds another VA opinion is necessary as the evidence is currently inadequate to decide the appeal. The Board notes the May 2019 private opinion. However, the JMR did not disturb the Board conclusion that the private examiner did not adequately address the lack of cervical spine complaints until 2009, approximately 28 years after service. The lack of complaints is particularly salient as the evidence reflects that the Veteran consistently reported and sought treatment for her lumbar spine, and related that pain to her in-service MVA. It is reasonable to conclude that if the Veteran had continual cervical spine pain since service, such would be reported in the post-service records along with the reports of lumbar spine pain. The fact that there were no records of any complaints or treatment involving the Veteran's neck for many years weighs against the claim, especially when STRs in 1983 specifically noted no sequelae related to the in-service motor vehicle accident. See Maxson v. West, 12Vet. App.453, 459 (1999), affirmed sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (it was proper to consider the veteran's entire medical history, including a lengthy period of absence of complaints). Entitlement to an initial rating in excess of 10 percent for left knee disability is remanded. Entitlement to an initial rating in excess of 10 percent for right knee disability is remanded. During the pendency of the appeal, the rating criteria for evaluating musculoskeletal disabilities under 38 C.F.R. § 4.71a were amended effective February 7, 2021. See 85 Fed. Reg. 230 (Nov. 30, 2020). These amendments revised select diagnostic codes "to ensure that this portion of the rating schedule uses current medical terminology and provides detailed and updated criteria for the evaluation of musculoskeletal disabilities." Id. As highlighted in the July 2021 JMPR, the Veteran reported that she was unsteady, had weak knees, and had to use a cane to keep balance because of her bilateral knee disability. In a May 2019 correspondence, the Veteran through her attorney, further reported that during flare-ups, she had to use either a walker or a wheelchair and that she avoided bending and kneeling altogether due to her knee instability. See May 2019 Third Party Correspondence. VA treatment records in 2019 and 2020 have since noted the Veteran's use of a cane, walker, and wheelchair. See January 2021 CAPRI. VA regulations have recently changed with respect to musculoskeletal conditions and, in particular, as relevant here, instability of the right and left knee. Review of the record indicates the Veteran's right and left knee was last afforded VA examination in January 2018 and does not contain sufficient findings to evaluate her knee disabilities under the revised criteria. Moreover, while the Veteran has been noted on multiple VA treatment records to use a cane and walker, the record does not reflect if use of these devices is prescribed by a medical provider. As such, remand for a new VA examination is necessary in order to adequately rate the Veteran's service-connected right and left knee disabilities. The matters are REMANDED for the following action: 1. Obtain any outstanding VA treatment records, and any identified outstanding private treatment records. 2. Thereafter, obtain an opinion that addresses the etiology of the cervical spine disability. It is left to the discretion of the examiner as to whether a physical examination is necessary. The examiner is asked to address the following: Is it at least as likely as not that the in-service November 8, 1976 auto accident is causally or etiologically related to any current cervical spine disability? Please explain why or why not. In answering the above, the examiner is asked to consider the STRs to include the December 13, 1976 neuro surgery clinical record; December 13, 1976 orthopedic clinic record; March 30, 1977 orthopedic clinic record; December 20, 1979 separation report of medical history; December 20, 1979 separation report of medical examination; January 22, 1980 report of medical history; June 26, 1983 Reserve report of medical history; June 26, 1983 Reserve report of medical examination; February 2013 VA examination; May 2019 private opinion; July 2021 JMR; and information submitted by the Veteran in November 2021. 3. After the development in #1 is completed, schedule the Veteran for a VA examination regarding the nature and severity of her right and left knee disabilities. The evaluation should document findings consistent with the February 2021 amended diagnostic codes for evaluating musculoskeletal disabilities. The examiner must review all pertinent documents in the record. The examiner should notate whether the Veteran uses a knee brace and cane that has been prescribed to her by a medical provider due to her service-connected right and left knee. S. HENEKS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Cheng, 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.