Citation Nr: 21074901 Decision Date: 12/16/21 Archive Date: 12/16/21 DOCKET NO. 14-38 848A DATE: December 16, 2021 REMANDED Entitlement to service connection for a lumbar spine disorder, to include low back strain, is remanded. Entitlement to service connection for a left knee disorder, to include left knee strain, is remanded. Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), adjustment disorder, and dysthymic disorder, is remanded. REASONS FOR REMAND The Veteran had active military service from June 2000 to February 2002. These matters come before the Board of Veterans' Appeals (Board) on appeal from an October 2012 rating decision. In August 2016, the Veteran testified before the undersigned Veterans Law Judge at a Central Office hearing in Washington, DC. A copy of the hearing transcript has been associated with the electronic claims file. In July 2017, the Board reopened the service connection claims for left knee and lumbar spine disorders and remanded these matters for additional development. In an August 2020 decision, the Board denied these service connection claims. The Veteran appealed this decision to the United States Court of Appeals for Veterans Claims (Court). The parties filed a Joint Motion for Remand (Joint Motion) in August 2021, which was granted by Order of the Court that same month. 1. Entitlement to service connection for a lumbar spine disorder, to include low back strain, is remanded. 2. Entitlement to service connection for a left knee disorder, to include left knee strain, is remanded. 3. Entitlement to service connection for an acquired psychiatric disorder, to include PTSD, adjustment disorder, and dysthymic disorder, is remanded. In the August 2021 Joint Motion, the parties stated that the Board failed to ensure VA satisfied its duty to assist and failed to ensure substantial compliance with its prior July 2017 remand directives. Regarding the claimed lumbar spine and left knee disorders, the Joint Motion indicated that the most recent October 2017 VA examination was inadequate, as the examiner failed to consider the Veteran's lay statements made during the examination and relied on the lack of objective evidence in the service treatment records when providing her opinion. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); see also Dalton v. Nicholson, 21 Vet. App. 23, 37 (2007). The parties further agreed that the October 2017 VA examination did not comply with the directives in the Board's July 2017 Remand, as the examiner did not consider the Veteran's lay testimony when providing the opinion and did not discuss findings in his service treatment records documenting complaints of low back and knee pain. Stegall v. West, 11 Vet. App. 268, 271 (1998). Regarding the claimed acquired psychiatric disorders, the Joint Motion indicated that the most recent October 2017 VA examination was inadequate, as the examiner's report did not contain findings concerning PTSD Diagnostic Criteria as well as symptoms and did not contain an adequate rationale. The matters are REMANDED for the following actions: 1. Obtain a VA medical examination to clarify the nature and etiology of the Veteran's claimed lumbar spine and left knee disorders. The electronic claims file must be made available to the examiner, and the examiner must specify in the examination report that the electronic claims file has been reviewed. Based on a review of the evidence of record, a detailed examination of the Veteran, and with consideration of his lay statements, the examiner should opine as to whether it is at least as likely as not (50 percent probability or greater) that any currently or previously diagnosed lumbar spine disorder OR any currently or previously diagnosed left knee disorder was related to events in service, specifically the Veteran's credibly asserted in-service fall while marching with a heavy rucksack. In doing so, the examiner must acknowledge and discuss the findings in the Veteran's service treatment records documenting complaints of low back pain as well as knee pain with squatting (the examiner is also directed to specifically review and mention left knee and low back findings in the January 2002 Report of Medical Examination as well as the January 2002 Report of Medical History); the July 2002 VA treatment for lumbar strain after a motor vehicle accident; post-service private treatment records; and the August 2011 and October 2017 VA examination reports/medical opinions. The examiner should also provide full consideration of the Veteran's lay assertions, to include his assertions made during the August 2016 Board hearing (that his back and knee have not been the same since service and have gotten worse since service separation) as well as during the October 2017 VA examination (that he injured his back and left knee during an in-service fall). In considering those assertions, the examiner should note that a lack of contemporaneous medical evidence during service does not, in and of itself, render lay evidence not credible, but may be considered in conjunction with other factors in determining the credibility of lay evidence. In providing this additional opinion, the examiner should also discuss medically known or theoretical causes of any current lumbar spine and left knee disorder and describe how each disorder generally presents or develops in most cases, in determining the likelihood that the current disorder is related to in-service events as opposed to some other cause. The examiner is reminded that the absence of in-service documentation of the claimed lumbar spine and/or left knee disorder is not considered adequate rationale concerning etiology of the claimed lumbar spine and/or left knee disorder. Simply stated, the examiner should not solely rely on an absence of corroborating in-service treatment records as to the severity of the in-service injuries (here, documented low back and knee complaints during service in January 2002 as well as the Veteran's asserted in-service fall injuries), in determining whether the Veteran's current lumbar spine and/or left knee disorder was at least as likely as not (50 percent probability or greater) causally related to his military service. 2. Thereafter, obtain a VA medical examination to clarify the nature and etiology of the Veteran's claimed psychiatric disorder. The electronic claims file must be made available to the examiner, and the examiner must specify in the examination report that the electronic claims file has been reviewed. Based on a review of the evidence of record, a detailed examination of the Veteran, and with consideration of his lay statements, the examiner should determine what psychiatric disabilities are present under DSM-5. If a diagnosis of PTSD is made, the examiner should offer an opinion as to whether any claimed in-service stressor is sufficient to have caused PTSD and whether it is at least as likely as not (50 percent probability or more) that any claimed stressor actually caused the Veteran's PTSD. The examiner must explain how the diagnostic criteria of the DSM-5 are met, to include identification of the specific stressor(s) underlying the diagnosis, and comment upon the link between the current symptomatology and one or more of the stressors. If a diagnosis of PTSD is not deemed appropriate, the examiner must specifically explain how the diagnostic criteria for PTSD of the DSM-5 have not been met. The examiner should also opine as to whether it is at least as likely as not (50 percent probability or greater) that any currently or previously diagnosed psychiatric disorder, to include adjustment disorder and dysthymic disorder, was related to events during active service. In doing so, the examiner must acknowledge and discuss the findings in the Veteran's November 2001 in-service psychological assessment, service personnel records documenting his difficulties during the application process for Basic Allowance for Housing, the April 2012 VA examination report, the September 2012 VA medical opinion, and the October 2017 VA examination report/medical opinion. 3. Rationale for all requested opinions shall be provided. If any examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). The Veteran is hereby advised that failure to report for any scheduled VA examination without good cause shown may have adverse effects on his claims. 38 C.F.R. § 3.655 (2021). (Continued on the next page) 4. After the development requested has been completed, the AOJ must review any examination report to ensure that it is in complete compliance with the directives of this Remand. If any examination is deficient in any manner, the AOJ must implement corrective procedures at once. 5. After completing the above actions and any other necessary development, the claims on appeal must be readjudicated, taking into consideration all relevant evidence associated with the evidence of record since the June 2018 SSOC. If any benefit on appeal remains denied, a SSOC must be provided to the Veteran and his representative. After the Veteran has had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. MICHAEL MARTIN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. D. Deane, 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.