Citation Nr: A21019552 Decision Date: 12/07/21 Archive Date: 12/07/21 DOCKET NO. 201217-127694 DATE: December 7, 2021 REMANDED Entitlement to service connection for left knee scarring is remanded. Entitlement to service connection for a left knee disability is remanded. Entitlement to service connection for a right shoulder disability is remanded. REASONS FOR REMAND The Veteran served on active duty from January 1975 to January 1977. The rating decision on appeal was issued in December 2020 and constitutes an initial decision; therefore, the modernized review system, also known as the Appeals Modernization Act (AMA), applies. In the December 2020 VA Form 10182, Decision Review Request: Board Appeal, the Veteran elected the Direct Review docket. Therefore, the Board may only consider the evidence of record at the time of the agency of original jurisdiction (AOJ) decision on appeal. 38 C.F.R. § 20.301. 1. Entitlement to service connection for left knee scarring is remanded 2. Entitlement to service connection for a left knee disability is remanded. The issues of entitlement to service connection for a left knee disability and left knee scar are remanded to correct a duty to assist error that occurred prior to the December 2020 rating decision on appeal. The Agency of Original Jurisdiction (AOJ) obtained a December 2020 VA examination and medical opinion prior to the December 2020 rating decision on appeal. However, this medical opinion does not provide an adequate rationale regarding whether the Veteran's left knee disability and scar had their onset in service or are otherwise related to service. The examiner opined that the Veteran's knee conditions were neither caused nor aggravated by service. As to the Veteran's left knee scar, it was reasoned that an enlistment exam noted the presence of a scar and a reference to a note from a family physician that there was a prior motorcycle accident which required 17 stitches due to laceration, but did not produce a break or tear. The examiner concluded that a skin laceration at a young age without anything broken or torn would not be expected to give issues later in life and thus the Veteran's current diagnosis is consistent with a direct injury, not an aggravation. The examiner specifically referenced the Veteran's history of a slip and fall in 1975. The examiner then proceeded with the conclusory opinion that the Veteran's diagnosed condition clearly and unmistakably existed prior to service and was not aggravated by an in-service injury. The Board finds this opinion inadequate for adjudication purposes and internally inconsistent. First, the examiner does not separate his opinions on direct service connection and aggravation for the left knee and left knee scar. Second, the examiner on the one hand states that the Veteran's injury pre-existed service, yet on the other hand states that the induction examination indicates only a laceration without further injury. Furthermore, the examiner seems to reference a 1975 fall as a possible etiology of his current left knee disability. However, this opinion is not clearly or properly expressed, and for the Board to make such a medical interpretation would result in a violation of Colvin v. Derwinski, 1 Vet. App. 171 (1991) (holding that the Board could consider only independent medical evidence to support its findings and could not reach its own unsubstantiated medical conclusions). As such, and with regret for the delay, an addendum clarifying opinion must be obtained to correct this pre-decisional duty to assist error. 3. Entitlement to service connection for a right shoulder disability is remanded. The issue of entitlement to service connection for a right shoulder disability is remanded to correct a duty to assist error that occurred prior to the December 2020 rating decision on appeal. In McLendon v. Nicholson, 20 Vet. App. 70 (2006), the court indicated that there was a four-part test to determine whether an examination was necessary under 38 C.F.R. § 3.159 (c)(4). Id at 81. Under this test, VA will provide a medical examination or obtain a medical opinion where there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) evidence establishing that an event, injury, or disease occurred in service; (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran's service or with another service-connected disability; and (4) there is insufficient competent medical evidence to make a decision on the claim. Id. The Veteran was not afforded a VA examination to assess the nature and etiology of his right shoulder disability. However, the Board finds that all the McLendon elements have been met. Specifically, submitted a statement in April 2020 indicating he fell down a ladder while on a refueling mission during service, and injured his right shoulder as a result; and after separation from service, he underwent rotator cuff surgery on the same shoulder as a result of his in-service injuries. The Board recognizes that the Veteran's service treatment records are unavailable through no fault of the Veteran, and that current VA medical records do not reflect a right shoulder injury. However, the Veteran indicated his right shoulder surgery took place with a private medical provider, and VA made a formal finding that the Veteran's service records are unavailable. In cases where the service records are unavailable, a heightened duty exists to assist in the development of the case. See O'Hare v. Derwinski, 1 Vet. App. 365 (1991). Furthermore, the Board emphasizes that the threshold for finding a link between current disability and service is low. Locklear v. Nicholson, 20 Vet. pp. 410 (2006); McLendon, 20 Vet. App. at 83. The Veteran's reports of a continuity of symptomatology can satisfy the requirement for evidence that the claimed disability may be related to service. McLendon, 20 Vet. App. at 83. As such, the Board finds that the Veteran should be afforded a VA examination to assess the nature and etiology of his right shoulder disability. The Board also notes that a medical authorization was requested from the Veteran to release his health information from the private provider, and the Veteran did in fact submit a release but this was a release of his VA medical records. Two days after VA's request for this additional authorization form, the Veteran, through his representative, petitioned the Board to advance another pending appeal on its docket due to a worsening health condition. The matters are REMANDED for the following action: 1. Obtain an addendum opinion from an appropriate clinician regarding the etiology of the Veteran's left knee disability. The Veteran's electronic claims folder, including a copy of this remand, must be provided to the examiner. The examiner is requested to address the following: (a) Opine as to whether it is clear and unmistakable (obvious, manifest, and undebatable) that the Veteran's left knee disability pre-existed active service. The Board notes that although the Veteran's service treatment records are incomplete, the Veteran's entrance examination is of record. The examination does not list any left knee disability. Therefore, the Veteran is presumed sound for purposes of entry. Accordingly, it must be determined whether the presumption of soundness is rebutted by clear and unmistakable evidence (b) If so, the examiner must state whether it is clear and unmistakable (obvious, manifest, and undebatable) that the pre-existing left knee disability WAS NOT aggravated (i.e., permanently worsened) during service or whether it is clear and unmistakable (obvious, manifest, and undebatable) that any increase in service was due to the natural progress. (c) If not, opine whether is at least as likely as not (50 percent probability or greater) that the Veteran's left knee disability and/or left knee scar were incurred in or otherwise related to service. The examiner is requested to specifically address the in-service knee injury, to include a fall in 1975. The examiner must address the Veteran's lay statements concerning any symptomatology during and after service. The entire claims file must be made available to the examiner for his or her review in providing these opinions. A complete rationale for all opinions must be provided. If the examiner cannot provide a requested opinion without resorting to speculation, it must be so stated, and the examiner must provide the reasons why an opinion would require speculation. The examiner must indicate whether there was any further need for information or testing necessary to make a determination. Additionally, the examiner must indicate whether any opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular examiner. 2. Schedule the Veteran for a VA examination for his claimed right shoulder disability. The examiner must review the claims file. If a diagnosis cannot be provided but the Veteran's condition manifests in symptoms that cause functional impairment, then the examiner should consider them a "disability" for the purpose of providing the requested opinion(s) below. The examiner is asked to provide a response to the following: Whether it is at least as likely as not (50 percent probability or greater) that the Veteran's right shoulder disability is related to service, including a fall from a ladder in service. A complete rationale, with citation to appropriate medical principles, is requested. In providing the requested opinion, consider the Veteran's description of his in-service injury and symptoms as well as his post-service symptoms. If there is any medical reason to accept or reject the proposition that the Veteran's reported injury and symptoms in service and thereafter represented the onset of his current disability, this should be noted. Stated another way, do the Veteran's reports about his symptoms align with how the currently diagnosed disability is known to develop or are the Veteran's reports generally inconsistent with medical knowledge or implausible? Please note that VA has a heightened duty to assist this Veteran given the unavailability of service treatment records. L. Baskerville Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Comninos, Georgio 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.