Citation Nr: 21075049 Decision Date: 12/17/21 Archive Date: 12/17/21 DOCKET NO. 17-41 491 DATE: December 17, 2021 REMANDED Entitlement to service connection for a back disability is remanded. Entitlement to service connection for a left knee disability is remanded. REASONS FOR REMAND The Veteran served on active duty from December 1976 to December 1980; from November 1981 to June 1985; and from June 1985 to October 1989. The matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2015 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). The Board notes that the RO granted service connection for herpes in a July 2017 rating decision. As this is a full grant of this issue, it is no longer in appellate status. In his July 2017 substantive appeal (VA Form 9), the Veteran requested a videoconference hearing before a Veterans Law Judge (VLJ), and a Board hearing was scheduled to be held in August 2021. The Veteran failed to appear for that hearing and did not provide good cause for this failure to appear; therefore, his hearing request is deemed to have been withdrawn. 38 C.F.R. § 20.704(d). The Board acknowledges that the Veteran's representative of record was not copied on the letters notifying the Veteran of the scheduled hearing. See BVA letters dated December 2020 and May 2021 (notifying the Veteran regarding hearings scheduled for February 2021 and August 2021, respectively). However, given the presumption of regularity, the mailing of the notice letters to the Veteran's address of record, and the fact that the Veteran has not contented nonreceipt, the Board is satisfied that the Veteran received notice of the scheduled hearings and failed to appear. Additionally, the Veteran's representative subsequently submitted an informal hearing presentation regarding the issues on appeal. See November 2021 appellant's brief. Thus, the Board finds that there is no prejudice to the Veteran for failure to notify the representative of the scheduled hearings. The Board will therefore proceed with adjudication of the claim. 1. Entitlement to service connection for a back disability is remanded. 2. Entitlement to service connection for a left knee disability is remanded. Although further delay is regrettable, the Board finds that additional development is necessary prior to appellate review. The Veteran has made numerous statements regarding the onset of his left knee disability; he has stated that his left knee disability began during his first period of service in 1978, July 1979, and/or October 1980. See December 1980 VA Form 21-526 (application for compensation); January 2014 VA Form 21-526; April 2017 VA examination. The Veteran has also stated that his back disability began during his second period of service in April 1984. See January 2014 VA Form 21-526. He stated that his STRs would reflect that he was placed on light duty profile for both issues. See July 2017 VA Form 9. However, service treatment records (STRs) for the first period of service have not been associated with the claims file. Furthermore, there is no finding of unavailability regarding these STRs associated with the claims file. As VA has a heightened duty to assist where service records are missing, further efforts are required, and remand is necessary. 38 U.S.C. § 5103A. 38 C.F.R. § 3.159. See Daye v. Nicholson 20 Vet. App. 512, 515 (2006); Washington v. Nicholson, 19 Vet. App. 362, 369 (2005); O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). Furthermore, as STRs for the first service period are missing, and as the STRs for the second period of service currently of record do not reflect a back injury, further efforts are required to obtain any outstanding STRs for the second period of service or to allow the Veteran an opportunity to provide any copies in his possession. Regarding the claim for service connection for a left knee disability, the Board finds that the VA medical opinion dated April 2017 is inadequate because it relies on the absence of any indication of knee symptoms in the STRs. It also states that "further documentation and evidence is required" to show a nexus with service. While documentary evidence is not necessarily required to substantiate a medical nexus opinion, the record in the present case shows that STRs from the relevant period of service are missing, and the examiner has relied on these missing STRs in opining against service connection. Accordingly, the case must be returned for an addendum medical opinion that addresses all pertinent medical and lay evidence of record following further records development as set out above. See Barr v. Nicholson, 21 Vet. App. 303 (2007). Additionally, the April 2017 VA examination noted a diagnosis of left knee osteoarthritis. However, the medical opinion did not address whether the diagnosed left knee osteoarthritis began during service, manifested within one year of separation, or was noted during service with continuity of symptomatology since service pursuant to 38 C.F.R. § 3.309(a). On remand, the examiner will be asked to address this matter in the addendum medical opinion as well. Additionally, as the April 2017 VA examiner noted that the Veteran incurred a 2013 left knee injury, the addendum medical opinion should address whether the current left knee disability is clearly attributable to any intercurrent causes. See 38 C.F.R. § 3.303(b). The matters are REMANDED for the following action: 1. Obtain updated VA treatment records. 2. Thereafter, obtain any outstanding service treatment records (STRs), to include those from the Veteran's first and second periods of service from December 1976 to December 1980; and from November 1981 to June 1985. Afford the Veteran and his representative a reasonable opportunity to submit any STRs in the Veteran's possession. If any additional records are located by VA or submitted by the Veteran, the records should be associated with the Veteran's claims file. If complete STRs cannot be located or are otherwise unavailable, the Veteran should be notified, and a formal finding of unavailability must be included in the claims file. All efforts to obtain the records must be documented. 3. Following completion of directives #1-2, provide the Veteran's claims file to a qualified clinician so that a supplemental opinion may be obtained to determine the etiology of the Veteran's left knee disability. A physical or telehealth examination of the Veteran is only required if deemed necessary by the clinician. The entire claims file and a copy of this remand must be made available to the clinician to review. The examiner is asked to opine on the following: (a) Is it at least as likely as not (a 50 percent probability or greater) that any currently diagnosed left knee disability is related, in whole or in part, to an in-service injury, event, or disease in service? (b) Alternatively, is it at least as likely as not (a 50 percent probability or greater) that the Veteran's left knee osteoarthritis (1) began during active service, (2) manifested within one year after discharge from service, or (3) was noted during service with continuity of the same symptomatology since service. (c) Alternatively, is the Veteran's left knee osteoarthritis clearly attributable to any intercurrent causes, specifically, the 2013 left knee injury? In rendering these opinions, the examiner should address the Veteran's lay statements regarding his symptoms. The Board reminds the examiner that, if opining against service connection, the examiner cannot rely solely on the fact that the 2013 injury occurred without laying a proper foundation for doing so. A complete rationale should be given for all opinions and conclusions expressed. If the examiner cannot provide an opinion without resort to speculation, the examiner should provide an explanation as to why this is so and must state whether there is additional evidence that would permit the necessary opinion to be made. (Continued on the next page) 4. Following completion of above directives, readjudicate the claims. If the benefits sought on appeal are not granted, the Veteran and his representative should be provided a supplemental statement of the case (SSOC) and afforded the requisite opportunity to respond. N. Stevens Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Minaya, Associate 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.