Citation Nr: 21074941 Decision Date: 12/16/21 Archive Date: 12/16/21 DOCKET NO. 09-37 838 DATE: December 16, 2021 REMANDED Entitlement to service connection for a bilateral knee disorder is remanded. Entitlement to service connection for a back disorder is remanded. Entitlement to service connection for a bilateral shoulder disorder is remanded. REASONS FOR REMAND The Veteran served on active duty from June 1968 to October 1969, to include service in the Republic of Vietnam, and was the recipient of numerous awards and decorations, to include the Combat Infantryman Badge. He died in December 2019 and the appellant, who is his surviving spouse, has been accepted as the substitute claimant for the purpose of processing this appeal to its completion. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision issued in February 2009 by a Department of Veterans Affairs (VA) Regional Office. In April 2018, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the record. In April 2014, August 2018, and March 2021, the Board remanded the case for additional development and it now returns for further appellate review. 1. Entitlement to service connection for a bilateral knee disorder. 2. Entitlement to service connection for a back disorder. 3. Entitlement to service connection for a bilateral shoulder disorder. The Veteran, and now the appellant, assert that his currently diagnosed osteoarthritis of the bilateral knees, back, and bilateral shoulders is related to his military service. In particular, the Veteran testified that he began experiencing spasms in his legs and feet while running and jumping during basic training and started having back problems after carrying a large person on his back. He further reported that his back and shoulders were injured during the same incident documented in a July 1969 service treatment record. Further, the Veteran and appellant reported that he continued to experience associated symptomatology following service until his death. In March 2021, the Board remanded the case to obtain all outstanding VA treatment records from the Michigan Healthcare System and, if deemed necessary by the receipt of relevant evidence, an addendum opinion addressing the etiology of the claimed disorders. Accordingly, the record reflects the association of the requested VA treatment records with the claims file. Due to the receipt of such evidence, the Agency of Original Jurisdiction also obtained an addendum opinion in August 2021. Following a review of the record, the VA physician opined it was less likely than not that the claimed conditions were incurred in or caused by an in-service injury, event, or illness. However, his rationale for the unfavorable opinion was the absence of objective evidence of related complaints or treatment during service. Upon review, the Board finds the August 2021 opinion insufficient for the purpose of determining entitlement to service connection. First, the opinion does not reflect consideration of the lay statements regarding the Veteran's in-service injuries and continuity of, and treatment for, associated symptoms since such incidents until his death. Dalton v. Nicholson, 21 Vet. App. 23 (2007) (holding that an examination was inadequate where the examiner did not comment on the veteran's report of in-service injury but relied on the service medical records to provide a negative opinion). Second, the examiner failed to address the documented in-service treatment for bilateral knee pain and swelling in July and August 1968, as well as the documented treatment of an acute muscle strain of the neck and right trapezius muscles in July 1969. In this regard, the Board notes that VA opinions rendered in July 2014 were previously deemed legally adequate. However, as the VA clinician who provided such opinions did not have the opportunity to review and address the aforementioned newly-obtained VA treatment records, the Board finds an additional remand is warranted for an addendum opinion. The matters are REMANDED for the following action: Forward the record, to include a copy of this Remand, to an appropriate clinician other than the VA physician who provided the August 2021 opinion, if possible, for an addendum opinion addressing the etiology of the Veteran's bilateral knee, back and bilateral shoulder disorders. After review of the record, the clinician should address the following inquiries: (A) Is it at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran's bilateral knee, back, and bilateral shoulder disorders, diagnosed as osteoarthritis, had their onset in, or is otherwise related to, his military service, to include his reports of injuring his knees, back, and shoulders during physical training? (B) Did the Veteran's osteoarthritis of the bilateral knees, back, and/or bilateral shoulders manifest within one year of his separation from active duty in October 1969 (i.e., by October 1970)? If so, please describe the manifestations. In offering such opinions, the clinician must consider and address the lay statements pertaining to the Veteran's reported in-service injuries, and a continuity of, and treatment for, symptoms thereafter. In addition, he or she must address the documented in-service treatment for bilateral knee pain and swelling in July and August 1968, and an acute muscle strain of the neck and right trapezius muscles in July 1969. The clinician advised that the absence of evidence of complaints, treatment, or a diagnosis referable to the Veteran's claimed disorders in his service treatment records cannot serve as the sole basis for a negative opinion. He or she is also advised that a lack of post-service treatment records demonstrating a continuity of care cannot form the sole basis of a negative opinion. A rationale for any opinion offered should be provided. A. JAEGER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. M. Celli, 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.