Citation Nr: 21006106 Decision Date: 02/03/21 Archive Date: 02/03/21 DOCKET NO. 16-19 524 DATE: February 3, 2021 REMANDED Entitlement to service connection for right knee pain secondary to back, leg and left knee is remanded. Entitlement to service connection for left knee pain secondary to back and leg is remanded. Entitlement to service connection for neck pain secondary to back pain, leg pain, and both knees is remanded. REASONS FOR REMAND The Veteran served on active duty from February 1989 to May 1991. The Veteran testified before the undersigned Veterans Law Judge during the December 2018 Board of Veterans Appeals (Board) hearing. A transcript of the hearing is associated with the claims file. This matter was previously remanded in January 2019 for additional development. It now returns for further appellate review. While this appeal was on remand, the Regional Office (RO) granted service connection for a right leg disability to include right lower extremity radiculopathy of the femoral and sciatic nerves in the June 2020 Rating Decision. Thus, the service connection claim for a right leg disability is no longer before the Board because a grant of service connection constitutes a full grant of benefits on appeal. Grantham v. Brown, 111 F.3d 1156 (Fed. Cir. 1997). In the January 2019 Board remand, the Board noted that the Veteran filed a Notice of Disagreement for his low back disability claim and that a Statement of the Case (SOC) had not been issued. In May 2019, the RO issued the SOC for his back disability claim, and the Veteran perfected his appeal by filing a VA Form 9 in July 2019. In his substantive appeal the Veteran requested an in-person Board hearing, and as it appears that such has not been held, the Board does not have jurisdiction over the claim. 1. – 3. Neck Pain, and Right and Left knee pain. Although further delay is regrettable, the Board finds a remand is warranted for addendum medical opinions for the Veteran’s neck and bilateral knee disabilities as the October 2019, November 2019 and July 2020 VA medical opinions provide insufficient information to decide the claim. Specifically, the Board finds that the VA medical opinions do not appropriately address the Veteran’s competent and credible lay statements. Notably, the Veteran has provided several lay statements, testimony, and buddy lay statements which all attest that the Veteran sustained an injury when he fell from a tall stool and landed on his back while working in the guard tower during active service. See June 2013 VA Form 21-4138 (Veteran’s Lay Statement). See Buddy/Lay Statement from Ms. R.W. (asserting that she served with the Veteran as military police, and that she witnessed the Veteran after he “had fallen out of the stool that had broken when he sat in it); Buddy/Lay Statement from Captain (RET) T.W.H (stating “I witnessed [Veteran] fall backward from a tall stool to the floor onto his back.”). The Veteran’s service treatment records (STRs) also confirm that he complained of right leg and back pain. For the purpose of this remand, the Board finds that these statements are competent and credible for establishing the Veteran’s in-service injury. However, the VA examiners from October 2019, November 2019, and July 2020 did not address the Veteran’s lay statements. See Miller v. Wilkie, 32 Vet. App. 249 (2020)(stating that a VA medical opinion lacks probative value when the examiner fails to address a veteran’s lay reports of his medical history and symptoms). Regarding the Veteran’s neck disability, VA obtained a medical opinion in October 2019. The October 2019 VA examiner opined that the Veteran’s neck disability was not incurred during his active service. Specifically, the October 2019 VA examiner reasoned that the claims file “is silent for any neck condition that occurred during active duty. Injuries sustained to the Veteran’s low back and right leg would not cause a condition.” See October 2019 Medical Opinion Disability Benefits Questionnaire (DBQ). Similarly, a November 2019 VA examiner provided a negative nexus opinion for the Veteran’s right knee disability. See November 2019 VA Medical Opinion DBQ. The examiner reasoned that the Veteran’s in-service right leg pain complaints were related to right lower leg radiculopathy instead of an arthritis condition. However, the examiner did not address the Veteran’s lay statements regarding his in-service injury when he fell from a stool, and whether his current right knee disability is related or caused by such injury. Additionally, a July 2020 VA examiner also provided a negative nexus opinion as to the Veteran’s left knee disability. See July 2020 VA Medical Opinion DBQ. The examiner noted that the Veteran’s enlistment and separation examinations were silent for any knee complaints. In concluding that the Veteran’s left knee disability was less likely than not related to service the examiner further stated that “[m]edical records are silent for documentation reflective of left knee pain and [or] conditions both while in service or within one year post separation.” Id. The Board finds the November 2019, and July 2020 VA medical opinions are inadequate for adjudication because the examiners improperly relied on the absence of evidence, specifically a lack of treatment records in providing negative opinions. See Fountain v. McDonald, 27 Vet. App. 258, 272-75 (2015)(indicating that a VA examiner may not generally rely on the absence of evidence as negative evidence). Additionally, the Board observes that service connection can be established for a disability that did not initially manifest in service if it develops due to an injury or disease that was incurred during service. Therefore, a medical opinion based solely on the absence of in-service treatment or findings is deemed to be inadequate. See Jones v. Shinseki, 23 Vet. App. 382, 390 (2010). In sum, because the VA examiners failed to address the Veteran’s competent reports of relevant symptoms and in-service injuries, a remand is required. See Miller v. Wilkie, 32 Vet. App. at 260 (stating that the examiner must address the veteran’s lay statements to provide the Board with an adequate medical opinion and, among other things, an examiner may explain that the veteran’s reports about symptoms or an in-service injury align with how the disease or disability is known to develop.”). Accordingly, in light of the above, the Board finds that the claims for service connection for a bilateral knee and neck disabilities must be remanded for addendum VA medical opinions that comply with the Court’s holding in Miller. The Board notes the claims file reflects that the Veteran has been receiving treatment from the Doris Miller VA Medical Center (VAMC), to include the Brownwood Community Based Outpatient Clinic (CBOC), Olin Teague VAMC, and that records dated through are associated with the file; however, more recent records may exist. The Board emphasizes that records generated by VA facilities that may have an impact on the adjudication of a claim are considered constructively in the possession of VA adjudicators during the consideration of a claim, regardless of whether those records are physically on file. See Sullivan v. McDonald, 815 F.3d 786, 793 (Fed. Cir. 2016). Thus, on remand the RO should obtain any outstanding VA treatment records to include records from Doris Miller VAMC, Olin Teague, VAMC, and Brownwood CBOC. The matters are REMANDED for the following action: 1. Obtain the Veteran’s comprehensive VA treatment records for the period from January 2020 to the present, to include from VA medical centers, clinics, counseling centers, hospitals, and outpatient treatment centers. See 38 C.F.R. § 3.159(c)(3) (2020). The Board observes that the Veteran has been treated at various VA facilities, to include Doris Miller VAMC, Olin Teague, VAMC, and Brownwood CBOC. 2. The Board recognizes the potential practical difficulties in scheduling an examination in light of the COVID-19 epidemic and requests flexibility and understanding in affording the Veteran any warranted examination Bilateral Knee Disabilities 3. Obtain an addendum opinion from the VA examiner(s) who conducted the October 2019 VA examination and provided the medical opinions in November 2019 and July 2020 if available. If the prior VA examiner(s) is/are unavailable, obtain an addendum opinion from a medical professional with appropriate experience to render an etiology opinion for the Veteran’s bilateral knee disabilities. • If the examiner determines that an opinion may not be offered without first examining the Veteran, then schedule the Veteran for an appropriate examination(s). Any clinically indicated testing and/or consultations should be performed. 4. The examiner must review the claims folder including this remand and acknowledge such review in the report.  Based on review of the October 2019 VA examination report and medical opinion as well as the July 2020 VA medical opinion, the examiner is requested to address the following: (a.) Assuming that the standard is at least as likely as not, is it possible that the Veteran’s current bilateral knee disabilities could be related to the in-service injury when the Veteran fell from a tall stool while working in the guard tower during active service and complained of right leg and back pain thereafter. See June 2013 VA Form 21-4138 (Veteran’s Lay Statement). (b.) Are the Veteran’s assertions that his current bilateral knee disabilities were caused by his in-service injury from falling off stool consistent with medical knowledge or implausible? (c.) Do the Veteran’s reports about his symptoms or his in-service injury from falling off a stool align with how the Veteran’s bilateral knee disabilities are known to develop. (d.) Whether it is medically feasible that his current bilateral knee disabilities were caused by his in-service injury from falling off a stool. i. If not, state why not and on what basis this conclusion was made. ii. If so, state why and on what basis this conclusion was made. (e.) Whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran’s bilateral knee condition is caused by his service connected radiculopathy of the lower extremities. (f.) Whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran’s bilateral knee condition underwent an incremental increase (aggravated), regardless of permanence, by his service-connected radiculopathy of the lower extremities. • The term incremental increase in disability means additional impairment of earning capacity. Objective measurement, or numerical quantification, is not required to ascertain an increase in disability. Moreover, any incremental increase in disability need not be permanent. Neck Disability 5. Return the claims file to the October 2019 VA examiner for an addendum medical opinion if available, or to an appropriate clinician to determine the nature and etiology for the Veteran’s neck disability. If the examiner determines a new examination is necessary to provide an adequate opinion, s/he should conduct such examination. 6. The examiner must review the claims folder including this remand and acknowledge such review in the report.  Based on review of the October 2019 VA examination and medical opinion, the examiner is requested to address the following: (a.) Assuming that the standard is at least as likely as not, is it possible that the Veteran’s current neck disability could be related to the in-service injury when the Veteran fell from a tall stool while working in the guard tower during active service and complained of right leg and back pain thereafter. See June 2013 VA Form 21-4138 (Veteran’s Lay Statement). (b.) Are the Veteran’s assertions that his current neck disability was caused by his in-service injury from falling off a stool consistent with medical knowledge or implausible? (c.) Does the Veteran’s reports about his symptoms or his in-service injury from falling off a stool align with how the Veteran’s neck disabilities are known to develop? (d.) Whether it is medically feasible that his current neck disability was caused by his in-service injury from falling off a stool and complained of right leg and back pain thereafter. i. If not, state why not and on what basis this conclusion was made. ii. If so, state why and on what basis this conclusion was made. THE EXAMINER MUST DISCUSS THE VETERAN’S LAY STATEMENTS REGARDING THE HISTORY, CHRONICITY, AND CONTINUITY OF SYMPTOMATOLOGY, TO INCLUDE THE VETERAN’S REPORT OF HIS IN-SERVICE INJURY. S/HE SHOULD OUTLINE THAT HISTORY IN THE REPORT. Any opinion expressed by the VA examiner should be accompanied by a complete rationale. If medical literature is relied upon in rendering this determination, the VA examiner should identify and specifically cite each reference material utilized. If the VA examiner is unable to offer an opinion without resorting to speculation, a thorough explanation as to why an opinion cannot be rendered should be provided. 7. THE AOJ MUST REVIEW THE CLAIMS FILE AND ENSURE THAT THE FOREGOING DEVELOPMENT ACTION HAS BEEN COMPLETED IN FULL. IF ANY DEVELOPMENT IS INCOMPLETE, APPROPRIATE CORRECTIVE ACTION MUST BE IMPLEMENTED. IF ANY REPORT DOES NOT INCLUDE ADEQUATE RESPONSES TO THE SPECIFIC OPINIONS REQUESTED, IT MUST BE RETURNED TO THE PROVIDING EXAMINER FOR CORRECTIVE ACTION. YVETTE R. WHITE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board G. Lilly, 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.