Citation Nr: 21076606 Decision Date: 12/27/21 Archive Date: 12/27/21 DOCKET NO. 18-25 574 DATE: December 27, 2021 REMANDED Entitlement to service connection for a cervical spine disability is remanded. Entitlement to service connection for a thoracolumbar spine disability is remanded. Entitlement to service connection for a right shoulder disability is remanded. Entitlement to service connection for a right knee disability is remanded. Entitlement to service connection for a left knee disability is remanded. REASONS FOR REMAND The Veteran served on active duty from March 1996 to June 1999. These matters appeal come before the Board of Veterans Appeals (Board) on appeal from a rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In July 2021, the Veteran testified at a hearing before the undersigned Veterans Law Judge (VLJ). A transcript is associated with the record. The VLJ held the record open for 90 days for the submission of additional evidence. Thereafter, in October 2021, VA received additional evidence from the Veteran. In remanding these matters, the Board makes no finding, implicit or otherwise, as to the credibility of the appellant's assertions. Neither the appellant's credibility nor any lack thereof should be presumed in this remand. 1. Entitlement to service connection for a cervical spine disability is remanded. 2. Entitlement to service connection for a thoracolumbar spine disability is remanded. 3. Entitlement to service connection for a right shoulder disability is remanded. 4. Entitlement to service connection for a right knee disability is remanded. 5. Entitlement to service connection for a left knee disability is remanded. Issues 1-5. The Veteran contends that his claimed disorders are related to events/injury in service. See Hearing Transcript (July 2021). The Veteran also contend that his current left shoulder condition is due to carrying heavy equipment during service. See C&P Exam (February 2020). Generally, the Veteran testified his claimed conditions are related to his duties as an infantry paratrooper that involved carrying significant weight (e.g. 90 pounds) on his back and then a rucksack on his hips. See Hearing Transcript (July 2021). More specifically, he noted a particular event. The Veteran testified that in December 1996, he had a bad landing due to decreased wind in his parachute canopy. He stated that he was immediately treated by medics who examined his knees, ankles, deltoids and shoulders. He testified that, following the impact, he was put on a 30-day restriction that limited rough marching, running, and airborne operations so he could recover from the incident. See Hearing Transcript at 5-6 (July 2021). Additionally, the Veteran testified that he had many jumps (18-19) and was obligated to jump at least once a month to maintain his airborne status. It is noted the Veteran has been awarded service connection for disabilities of the left shoulder and bilateral feet. In both instances, VA examiners opined that the Veteran's disabilities were specifically linked to the rigors of his training as a paratrooper. To ensure that VA has met its duty to assist, the Board finds that remand is required to obtain an addendum medical opinion as to whether the Veteran's claimed disabilities were incurred in or are related to an in-service injury, event, or disease. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c). Initially, the Board notes that the Veteran's military personnel records show that his military occupational specialty (MOS) was fighting vehicle infantryman and he was awarded a Parachutist Badge. He served in D Co. 3rd Battalion, 505th Parachute Infantry Regiment (PIR), 82nd Airborne Division. The Veteran's military personnel records also contain his individual jump record showing he had 18 jumps from C-130 and C-141 planes for the period from May 1996 to March 1998. The types of jumps performed included administrative, non-tactical, combat equipment, mass tactical and night jumps. The Veteran also completed the Special Forces Assessment and Selection Course between January 1999 and February 1999. The Veteran's service treatment records (STRs) contain several entries noting complaints related to injuries sustained during airborne or special forces training exercises. For instance, in December 1996, the Veteran sought emergency room (ER) treatment for left knee and left ankle pain following a bad landing from a parachute jump the night before. It is noted that the Veteran's jump record confirms that, on December 17, 1996, he performed a mass tactical night jump with combat equipment from a C141 plane in Sicily. Upon physical examination, the Veteran was noted to have an abrasion to the left knee. He did not have ligament laxity or edema. A left knee x-ray was normal, and the left knee exhibited full range of motion. Additionally, the Veteran's deltoid (right or left not specified) was found to be tender. In February 1999, the Veteran was diagnosed with heel pain due to overuse from Special Forces Assessment (SFA) training with minor back pain. He was also found to have kinetic/sciatic calf pain. He was prescribed a muscle relaxant, placed on light duty for 24 hours and advised to engage in physical training at his own pace for 2 weeks. The Veteran's VA treatment records contain a primary care note dated in April 2014 indicating the Veteran was new to VA and was there for "claiming purposes." He reported he injured his right shoulder in approximately January to February 1999 while doing special forces training but did not seek medical treatment. He reported that the pain had been intermittent over the past 15 years since the initial in-service injury. Additionally, he indicated he injured both knee while parachute jumping in 1996 and, while he was initially treated for knee pain and prescribed Motrin, he did not seek medical attention thereafter. The Veteran reported knee pain during the last 10 years that was progressively worse over the past 2 years. The Veteran presented for a VA knee examination in March 2014 and was diagnosed with patellofemoral knee syndrome and chondromalacia patella of the left knee. The examination report does not reflect a diagnosis of the right knee nor did the accompanying medical opinion address any right knee condition. The examiner opined that the Veteran's left knee condition was less likely than not incurred in or caused by service because there are no in-service reports of a knee condition, including at separation, and there are no post-service notes of any knee condition. Reports of VA examinations conducted in March 2015 reflect diagnoses for cervical strain, lumbar degenerative joint disease, right shoulder impingement syndrome, and bilateral knee strain with patellofemoral pain syndrome. By history, the Veteran's conditions had their onset during service as a result of a bad parachute landing in December 1998. However, he reported that his right shoulder symptoms began while he was performing log maneuvers during special forces assessment training. The accompanying medical opinion (MO) concluded that the claimed disabilities are less likely than not incurred in or caused by the claimed in-service injury, event or illness. The MO's rationale was that the Veteran was only seen for a left knee sprain following a jump in December 1996 and STRs are silent for any reference to the shoulders, back and right knee; and that the March 1999 separation examination was normal and did not document any upper or lower back, shoulder, or knee pathology upon leaving service. A February 2020 VA shoulder and arm conditions examination reflects a diagnosis of shoulder impingement syndrome of the left shoulder and acromioclavicular joint osteoarthritis and degenerative arthritis of the right shoulder. By history, the Veteran had a traumatic parachute landing in service and suffered injuries to his feet and left shoulder; the Veteran also related his current left shoulder condition to carrying heavy equipment during service which caused further injury to his left shoulder. The Board finds the opinions above inadequate for adjudicative purposes. First, the medical opinions reflect that the clinicians primarily relied on the absence of complaints and treatment for the claimed conditions during service. It is noted that an in-service diagnosis or documented complaint, findings, or treatment is not required to establish service connection. Cosman v. Principi, 3 Vet. App. 503 (1992); see also 38C.F.R. §3.303(d) (service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service). Here, examination reports reflect the Veteran reported his back, right shoulder, and bilateral knee symptoms had their onset in service and continued thereafter. See also Correspondence (October 2021). Moreover, the rationales provided suggest that the clinicians relied on a lack of "objective" medical evidence, while discounting the Veteran's lay statements. Dalton v. Nicholson, 21 Vet. App. 23, 39-40 (2007). It is noted that the clinician is not required to accept the Veteran's theory that a bad parachute landing injury, or; the rigors of his duties and training as a paratrooper, or; Special Forces Assessment Training, caused his current cervical spine, lumbar spine, right shoulder, and bilateral knee disabilities or that he had symptoms associated with the disabilities during or following military service if this is incongruous with the record; however, the clinician is required to fully explain why he or she disagrees with the Veteran's theory of causation, and provide a discussion of the relevant or significant medical history, clinical findings, medical knowledge or literature, etc., that support the negative medical opinion or conclusion(s). If another etiology is the more likely cause, the clinician must provide a complete explanation of his or her reasoning. Next, the opinions are inadequate because they do not reflect a meaningful discussion of the Veteran's lay statements. In this case, the Veteran has provided a consistent account of his in-service duties, training and medical treatment while he was a paratrooper with the 82nd Airborne Division and during Special Forces Assessment Training. See e.g., Form 9 (May 2018) & Correspondence (October 2021). However, the rationales are largely predicated on the lack of medical evidence to establish the Veteran's in-service injuries related to his duties as a paratrooper. The clinicians appear to wholly ignore the Veteran's reported history regarding symptom onset and continuity in formulating the negative nexus opinions. See Dalton, 21 Vet. App. 23 (2007). See also, McKinney v. McDonald, 28 Vet. App. 15, 30-31 (2016) ("the VA examiner's failure to consider [a veteran's] testimony when formulating her opinion renders that opinion inadequate."). It is noted that while the Veteran, as a lay person, is not competent to opine on the etiology of his disabilities, he is competent to report signs and symptoms of his neck, low back, right shoulder, and bilateral knee disabilities. Thus, the opinions do not reflect consideration of seemingly relevant facts and are therefore inadequate. Additionally, the opinions are inadequate because they are not based on a comprehensive review of the claims file. Here, the Veteran's STRs note a finding of deltoid tenderness and complaints of back pain which were not acknowledged and considered by the clinicians in formulating the opinions. An adequate medical opinion must be "accurate and fully descriptive," 38 C.F.R. § 4.1, and based on an accurate factual premise and consideration of a veteran's prior medical history, Ardison v. Brown, 6 Vet. App. 405, 407 (1994). Further, an adequate medical examination report or opinion must "sufficiently inform the Board of a medical expert's judgment on a medical question and the essential rationale for that opinion." Monzingo v. Shinseki, 26 Vet. App. 97, 106 (2012). Although an examiner need not discuss all potentially favorable or unfavorable evidence in order to render an adequate opinion, see Monzingo, 26 Vet. App. at 105, it must be clear that the examiner was "informed of sufficient facts upon which to base an opinion relevant to the problem at hand." Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Lastly, the record suggests that there are outstanding pertinent private medical records in this matter as complete medical records have not been submitted or requested from Dr. Jason DeFrancis and Back In Action Physical Therapy. To ensure that VA has met its duty to assist, remand is necessary to obtain these records. 38 C.F.R. § 3.159(c). As explained above, the Board finds that the VA medical opinions are inadequate for decision making purposes and remand is warranted to obtain addendum opinions addressing whether the Veteran's claimed disabilities were incurred in or are otherwise related to his service. Where VA provides an examination or obtains an opinion, it must be adequate. Barr v. Nicholson, 21 Vet. App. 303 (2007). In remanding these matters, the Board makes no finding, implicit or otherwise, as to the credibility of the Veteran's assertions. Neither the Veteran's credibility nor any lack thereof should be presumed in this remand. The matters are REMANDED for the following action: 1. Ask the Veteran to complete a VA Form 21-4142 for all non-VA medical providers seen for signs, symptoms, and/or treatment involving the cervical spine, lumbar spine, right shoulder and knees, to include from Dr. Jason DeFrancis and Back In Action Physical Therapy Lomas del Sur. Make two requests for the authorized records from all identified sources, unless it is clear after the first request that a second request would be futile. 2. Obtain all VA treatment records for the period from January 2020 to the Present. 3. Obtain an addendum opinion from an appropriate clinician regarding the Veteran's cervical spine, lumbar spine, right shoulder and bilateral knee disabilities. The entire claims file, to include a copy of this REMAND, should be made available to and reviewed by the clinician. Based on review of the record, detail the Veteran's reported symptoms, including the nature, onset, progression and severity of any symptoms consistent with any cervical, lumbar, right shoulder and bilateral knee disabilities. The opinion should also identify and explain the relevance or significance, as appropriate, of any history, clinical findings, medical knowledge or literature, etc., relied upon in reaching the conclusion(s). An adequate medical opinion may not be predicated solely on the absence of an in-service diagnosis or documented complaints. The clinician must opine on: (a) Whether the Veteran has a cervical spine, lumbar spine, right shoulder, right knee and/or left knee disability that at least as likely as not (1) began during service; or (2) is related to an in-service injury, event, or disease. Consider expressly the lay evidence, statements and testimony from the Veteran, of hard landings from numerous parachute jumps, running 20 miles weekly, engaging in lengthy ruck marches carrying excessive weight. See e.g. VA 21-4138 Statement in Support of Claim (April 2014) & Correspondence (October 2021). (b) For any arthritis of the cervical spine, lumbar spine, right shoulder, right and/or left knee, whether it at least as likely as not (1) began during service; or (2) manifested within one year after discharge from active service, (3) was noted during service with continuity of the same symptomatology since service; or (4) is related to an in-service injury, event, or disease, including hard landings from numerous parachute jumps, running 20 miles weekly, engaging in lengthy ruck marches carrying excessive weight. See e.g. VA 21-4138 Statement in Support of Claim (April 2014) & Correspondence (October 2021). Consider, at a minimum, the Veteran's : (1) contention that his disabilities of the knees, shoulders and back stem from a bad landing from a parachute jump in December 1998, running, and normal weightbearing activities and continue to this day (2) service personnel records reflecting the Veteran participated in 18 jumps from May 1996 to March 1998 and participated in and completed the Special Forces Assessment and Selection course from January 1999 to February 1999 (3) the December 1998 STR noting a left knee injury from a bad parachute landing fall (PLF) the night before and a notation of tenderness in the deltoid (4) the February 1999 STR noting heel pain due to overuse and minor back pain that began 2 weeks prior during Special Forces Assessment (SFA) training (5) the February 2020 VA left shoulder examiner's opinion concluding that the Veteran's left shoulder impingement syndrome is likely related to incidents while working as a parachutist during service. The rationale was that although there was no treatment during service for left shoulder complaints, "repeated hard landings and impacts with the ground can cause injury. Literature supports that parachutists are subjected to a number of forces which result in a higher probability and rate of a constellation of injuries associated with a fall from height including injuries to the shoulder." If any history of injury, onset of symptoms, progression of symptoms, etc., is rejected by the examiner, then the examiner must provide a full explanation for such (e.g. symptoms do not align with how the currently diagnosed disability is known to develop, explaining why; or the reported in-service injury and/or symptoms is generally inconsistent with medical knowledge or implausible, explaining why.). 4. Ensure that the VA medical opinions obtained include a complete rationale for the conclusions reached. The medical opinions must support the conclusions reached with an analysis that is adequate for the Board to consider and weigh against other evidence of record; medical opinions must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. If an opinion cannot be expressed without resort to speculation, ensure that the clinician so indicates and discusses why an opinion is not possible, to include whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. C.A. SKOW Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Krunic, 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.