Citation Nr: 21006121 Decision Date: 02/03/21 Archive Date: 02/03/21 DOCKET NO. 19-14 722 DATE: February 3, 2021 REMANDED Entitlement to service connection for a right knee disability is remanded. Entitlement to service connection for a left knee disability is remanded. Entitlement to service connection for a lumbar spine disability, claimed as a low back disability, is remanded. Entitlement to service connection for a cervical spine disability is remanded. REASONS FOR REMAND The Veteran served active duty in the United States Army from February 1966 to January 1969. Historically, the Board notes that the service connection claims for a cervical spine disability, lumbar spine disability, and right knee disability were previously denied in a July 2013 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). Following, in February 2014, the Veteran submitted relevant new and material evidence and a request of reconsideration of the claims. As new and material evidence was submitted within one year of the July 2013 rating decision, that decision did not become final for the issues of entitlement to service connection for a cervical spine disability, lumbar spine disability, or right knee disability. 38 C.F.R. § 3.156(b). Therefore, the Board will consider the claims on a de novo basis. Following the request to reconsider the claims, in April 2015, the RO denied the service connection claims for a right knee, left knee, cervical spine, and lumbar spine disability. It found the conditions had no link to the Veteran’s military service. Additionally, the RO indicated the Veteran did not have a current diagnosis of a left knee disability. The Board notes that the Veteran originally requested a Board hearing. However, following a pre-trial hearing, the Veteran’s representative withdrew the request because the Veteran was unable to attend the virtual hearing due to a lack of an internet connection. A review of the claims file shows the Veteran has been diagnosed with multilevel osteoarthritis and stenosis of the cervical spine and treated for bilateral knee pain and chronic low back pain. See September 2012, May 2015, May 2016, and October 2016 VA treatment records. The Veteran contends that his claimed disabilities are related to service. Specifically, in his April 2016 notice of disagreement, the Veteran asserted that his claimed disabilities began during training at Fort Belvoir where he jumped out of helicopters, picked up soldiers from the ground, and loaded them into the aircraft. He stated that the training required constant lifting and bending that placed severe strain on his knees and back. Additionally, he stated that during a tour in Germany, he worked seven days per week for an entire month picking up soldiers, sometimes two to five of them at a time, after unrest broke out. Lastly, in a September 2013 lay statement, a fellow servicemember detailed an incident in which he, the Veteran, and others fell down some stairs as they tried to evacuate a 400 to 500-pound person. The fall resulted in bruises and tightness in the back of their knees. The Board acknowledges the record contains Disability Benefits Questionnaires related to the claimed disabilities. However, the physician did not provide a nexus opinion following the evaluation. To date, the Veteran has not been afforded VA examinations related to these claimed conditions. The record contains medical notes that indicate the scheduled VA examinations were canceled because the Veteran could not be contacted. However, during a pre-trial hearing, the Veteran’s representative stated the Veteran did not receive notice of the examinations because they were sent to an old address. Since that time, the Veteran’s address has been updated and he has expressed his willingness to attend the VA examinations. Moreover, the claims file does not contain the correspondence sent to the Veteran notifying him of the scheduled examination. Thus, without a copy of a notice letter, it is not clear if the Veteran received proper notification of the scheduled examination or if it was sent to the correct mailing address. For the reasons stated above, the claims are remanded to afford the Veteran another opportunity to attend VA examinations. The Board notes that the “duty to assist is not always a one-way street,” and that the Veteran has an obligation to actively participate, to include attending scheduled VA examinations. He is expected to cooperate in the efforts to adjudicate the claim, and his failure to do so would subject him to the risk of an adverse adjudication based on an incomplete and underdeveloped record. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991); Kowalski v. Nicholson, 19 Vet. App. 171, 178 (2005). Pursuant to 38 C.F.R. § 3.655, failure to appear for scheduled VA examinations may detrimentally affect the claim. The matters are REMANDED for the following action: 1. On remand, the Veteran should be afforded a VA examination to determine the nature and etiology of any right or left knee disability that may be present. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran’s service treatment records, post-service medical records, and lay assertions. The Veteran has asserted that his claimed disabilities began during training at Fort Belvoir where he jumped out of helicopters, picked up soldiers from the ground and loaded them into the aircraft. He stated that the training required constant lifting and bending that placed severe strain on his knees and back. Additionally, he stated that during a tour in Germany, he worked seven days per week for an entire month picking up soldiers, sometimes two to five of them at a time, after unrest broke out. The record also contains a lay statement from a fellow servicemember which detailed an incident in which he, the Veteran, and others fell downstairs as they tried to evacuate a 400 to 500-pound person. The fall resulted in bruises and tightness in the back of their knees. The examiner should consider and address these contentions. The examiner should note that the Veteran is competent to attest to matters of which he has first-hand knowledge, including observable symptomatology. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. The examiner should identify any current right or left knee disabilities that have been present at any point since the Veteran filed his claim in May 2012 or within close proximity thereto. If the Veteran does not have a current diagnosis, the examiner should state whether there is any functional impairment caused by right or left knee pain (evidence of pain alone that causes functional impairment, even without a specific diagnosis or identifiable disease, may constitute a disability for VA purposes). For each diagnosis identified or any functional impairment caused by right or left knee pain, the examiner should opine as to whether it is at least as likely as not that the disorder is causally or etiologically related to his military service, to include any claimed injury or symptomatology therein. (The term “at least as likely as not” does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of conclusion as it is to find against it.) A clear rationale for all opinions must be provided and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. 2. Following the foregoing development, the Veteran should be afforded separate VA examinations to determine the nature and etiology of any cervical spine or lumbar spine disability that may be present. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran’s service treatment records, post-service medical records, and lay assertions. The Veteran has asserted that his claimed disabilities began during training at Fort Belvoir where he jumped out of helicopters, picked up soldiers from the ground and loaded them into the aircraft. He stated that the training required constant lifting and bending that placed severe strain on his knees and back. Additionally, he stated that during a tour in Germany, he worked seven days per week for an entire month picking up soldiers, sometimes two to five of them at a time, after unrest broke out. The examiner should consider and address these contentions. The examiner should note that the Veteran is competent to attest to matters of which he has first-hand knowledge, including observable symptomatology. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. The examiner should identify any current cervical spine and lumbar spine disabilities that have been present at any point since the Veteran filed his claim in May 2012 or within close proximity thereto. If the Veteran does not have a current diagnosis, the examiner should state whether there is any functional impairment caused by neck or low back pain (evidence of pain alone that causes functional impairment, even without a specific diagnosis or identifiable disease, may constitute a disability for VA purposes). For each diagnosis identified or any functional impairment caused by neck or low back pain, the examiner should opine as to whether it is at least as likely as not that the disorder is causally or etiologically related to his military service, to include any claimed injury or symptomatology therein. (The term “at least as likely as not” does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of conclusion as it is to find against it.) A clear rationale for all opinions must be provided and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. 3. The AOJ should notify the Veteran that it is his responsibility to report for any scheduled examination and to cooperate in the development of the claim and that the consequences for failure to report for a VA examination without good cause may include denial of the claims. 38 C.F.R. §§ 3.158, 3.655. In the event that the Veteran does not report for any scheduled examination, documentation which shows that notice scheduling the examination was sent to the last known address should be associated with the claims file. It should also be indicated whether any notice that was sent was returned as undeliverable. 4. After completing these actions, the AOJ should conduct any other development as may be indicated by a response received as a consequence of the actions taken in the preceding paragraphs. LESLEY A. REIN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K.M. Walker 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.