Citation Nr: 21006212 Decision Date: 02/03/21 Archive Date: 02/03/21 DOCKET NO. 13-30 331 DATE: February 3, 2021 REMANDED Service connection for a low back disorder is remanded. Service connection for a neck disorder is remanded. Service connection for a bilateral knee disorder is remanded. Service connection for a right elbow disorder is remanded. Service connection for a left shoulder disorder is remanded. INTRODUCTION The Veteran served on active duty from August 1999 to August 2004 in the U.S. Air Force. Subsequently, it appears the Veteran served in the Air Force Reserve from August 2004 to June 2007. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a June 2010 rating decision issued by an Agency of Original Jurisdiction (AOJ) of the Department of Veterans Affairs (VA). In September 2017 and August 2018, the Board remanded the appeal for further development. This case has since been returned to the Board for appellate review. In January 2018, the Veteran presented testimony at a Board videoconference hearing before the undersigned Veterans Law Judge (VLJ). A transcript of that hearing is associated with the Veteran’s claims file. In a September 2019 Board decision, the Board denied service connection for all five issues on appeal. However, the Veteran appealed the Board’s September 2019 decision to the United States Court of Appeals for Veterans Claims (Court). In an August 2020 Order, the Court partially vacated and remanded the Board’s decision to deny service connection for the five issues on appeal, pursuant to an August 2020 Joint Motion for Partial Remand (Joint Motion) by the parties. The reasons for the Court’s Order and the specific instructions of the Joint Motion will be discussed in further detail below. Upon return from the Court, in September 2020, the Board sent the Veteran a 90-day notice letter for a Court remand informing him that the case had been received by the Board from the Court. The Veteran was advised he had 90 days to submit additional argument or evidence with an indication as to whether he desired a remand for the AOJ to consider the evidence or whether he waived this right. See generally 38 C.F.R. § 20.1305 (2019). Ninety days has since passed, but the Veteran has not submitted any additional evidence. In any event, this case has now returned to the Board to implement the instructions of the August 2020 Joint Motion. REASONS FOR REMAND 1. Service connection for a low back disorder is REMANDED. 2. Service connection for a neck disorder is REMANDED. 3. Service connection for a bilateral knee disorder is REMANDED. 4. Service connection for a right elbow disorder is REMANDED. 5. Service connection for a left shoulder disorder is REMANDED. Pursuant to the August 2020 Court Order and Joint Motion, the parties agreed that in the previous September 2019 Board decision, the Board erred by failing to provide an adequate statement of reasons or bases for its decision to deny service connection for all five issues on appeal. See 38 U.S.C. § 7104(d)(1); Thompson v. Gober, 14 Vet. App. 187, 188 (2000). That is, the Board did not properly weigh the Veteran’s lay assertions of chronicity and continuity of symptoms since service for the various disabilities on appeal. See Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006); Washington v. Nicholson, 19 Vet. App. 362, 367–68 (2005) (stating that the Board has the duty to determine the credibility and probative weight of the evidence). As a result, the Joint Motion concluded a remand is warranted for the Board to properly consider the evidence of record (to include lay evidence of chronicity), and to provide an adequate statement of reasons and bases in support of its determination, to include whether the provisions of 38 C.F.R. § 3.303(b) (addressing chronicity and continuity of symptoms) are applicable in this case. See 38 U.S.C. § 7104(a), (d)(1). After making such a determination, the Board must also address whether the VA medical examiners adequately considered the foregoing lay evidence in formulating their VA medical opinions on etiology, and if not, ensure new VA medical opinions are obtained to consider this lay evidence. See id.; 38 U.S.C.§ 5103A(a)(1); Miller v. Wilkie, 32 Vet. App. 249 (2020). In addition, for the neck and knee issues on appeal, the parties agreed that the Board erred when it did not provide an adequate statement of reasons or bases because it did not adequately address the Federal Circuit’s decision in Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018), which held that pain alone may constitute a disability, even without an identifiable underlying pathology. As a result, upon remand, the Board shall discuss the applicability of Saunders based on the facts of the case and provide an adequate statement of reasons or bases for its determination. See 886 F.3d at 1369. After closely reviewing the evidence of record, the Board has also added several other reasons for remand. In this regard, the Court may look to the terms of the Joint Motion to determine the scope of the Board’s duty to search the record for other issues; the terms of the Joint Motion “will serve as a factor for consideration as to whether or to what extent other issues raised by the record need to be addressed.” Carter v. Shinseki, 26 Vet. App. 534, 543 (2014), rev’d on other grounds by Carter v. McDonald, 794 F.3d 1342 (Fed. Cir. 2015). Additionally, the Court has held in Atencio v. O’Rourke, 30 Vet. App. 74, 88 (2018) that unless a Joint Motion clearly limits a portion of the decision being vacated or the Board’s duties, the Board should address all raised theories and contentions on remand. The Board will do so in the present case. First, the AOJ should attempt to secure any medical and personnel records for the Veteran’s service in the Air Force Reserve from August 2004 to June 2007. In this regard, a December 2019 VA website printout pertaining to the Veteran’s service history noted that the Veteran served in the Air Force Reserve from August 2004 to June 2007. No other information is of record. VA is required to obtain the Veteran’s STRs or other relevant service records held or maintained by a government entity. 38 U.S.C. § 5103A(c). When VA attempts to obtain records from a federal department or agency, the efforts to obtain those records must continue until the records are obtained unless it is reasonably certain that such records do not exist or that further efforts to obtain those records would be futile. 38 U.S.C. § 5103A(b); 38 C.F.R. § 3.159(c)(2), (c)(3). Therefore, the AOJ should contact the National Personnel Records Center (NPRC), Records Management Center (RMC), the Commander of the Veteran’s Air Force Reserve Unit (if the Veteran provides information to identify his Unit), the Air Force Reserve Personnel Center, the Defense Finance and Accounting Service (DFAS), or any other appropriate Federal or State custodian, to secure any additional medical or personnel records dated from 2004 to 2007 for his Air Force Reserve service. Any additional Air Force Reserve medical or personnel records dated from 2004 to 2007, if available, may provide earlier evidence on the existence of the five issues on appeal. If these Air Force records are unavailable or do not exist, a negative reply to this effect is required from the appropriate custodian. Second, the August 2020 Joint Motion instructed the Board to secure outstanding private treatment records that are not currently present in the claims file. That is, the AOJ should ask the Veteran to complete a VA Form 21-4142 for any private treatment records dated from 2004 to the present for post-service treatment of his knee, elbow, shoulder, low back, and neck disorders. These private treatment records include those from Dr. Mario A. Ochoa, who ordered an August 2019 radiology report from Adventist that is present in the claims file, as well as Dr. Stanley Y. Louie, the Veteran’s primary care physician. The AOJ should make two requests for the authorized records from either private facility, unless it is clear after the first request that a second request would be futile. See 38 C.F.R. § 3.159(c)(1). Third, as the appeal is already being remanded for further development (as explained above and below), the Board sees the Veteran’s VA treatment records on file for the Fresno, California VA healthcare system date to June 2019. Any additional VA treatment records are within VA’s constructive possession and are considered potentially relevant to all five issues on appeal. Therefore, a remand is required to allow VA to obtain all the Veteran’s VA treatment records from the VA healthcare system in Fresno, California, dated from June 2019 to the present. Fourth, the August 2020 Joint Motion instructed the Board to secure adequate VA addendum opinions and / or VA examinations for the knee, elbow, shoulder, low back, and neck disorders on appeal. The Board acknowledges that the AOJ secured earlier February 2020 VA examinations and opinions for the knee, elbow, shoulder, low back, and neck disorders. However, these VA medical opinions addressing the etiology of these disorders, although probative, are not fully adequate. On this point, when VA provides a VA examination or obtains a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Specifically, several of the February 2020 VA opinions failed to adequately address the Veteran’s relevant lay assertions of continuity of symptoms for the various disorders on appeal. Miller v Wilkie, 32 Vet. App. 249, 258 (2020). A VA examiner must at least address a veteran’s lay assertion that he has had symptoms of the disability for which he is claiming service connection for during and since service. Id. The Court added that a VA examiner needs to explain whether the claimant’s lay assertions are generally “consistent or inconsistent” with medical knowledge. Id. at 259-60. However, at this stage, the Board is not making a preliminary formal finding as to the credibility of the Veteran’s lay reports of continuous symptoms during and since service for his various disorders on appeal. Rather, the Board is merely requesting that the VA clinician on remand consider and address the Veteran’s own lay descriptions of the history of his knee, elbow, shoulder, low back, and neck disorders and treatment therefor. Smith v. Wilkie, 32 Vet. App. 332, 338-39 (2020). Moreover, for the neck, right elbow, and left knee conditions, if a diagnosis cannot be provided (e.g., there is no identifiable underlying pathology), the VA examiner should specifically state whether the condition nevertheless manifests in symptoms that cause functional impairment of earning capacity associated with the Veteran’s complaints of pain or other symptoms. See Saunders v. Wilkie, 886 F.3d 1356, 1368 (Fed. Cir. 2018) (holding that pain alone may constitute a disability, even without an identifiable underlying pathology, provided that such pain is productive of functional impairment). In short, for the knee, elbow, shoulder, low back, and neck disorders on appeal, the AOJ must obtain VA addendum opinions on the etiology of these disorders, after a review of the record. These VA addendum opinions should be secured from the same VA examiner who performed the February 2020 VA examinations. If the same February 2020 VA examiner is not available, another qualified VA clinician will provide the VA addendum opinions. Another VA examination for each of the disorders on appeal is not necessary unless the VA clinician specifically requests one. This matter is REMANDED for the following action: 1. The AOJ should contact the NPRC, the RMC, the Commander of the Veteran’s Air Force Reserve Unit (if the Veteran provides information to identify his Unit), the Air Force Reserve Personnel Center, the Defense Finance and Accounting Service (DFAS), or any other appropriate Federal or State custodian, in order to secure any additional medical and personnel records from the Veteran’s time in the Air Force Reserve from August 2004 to June 2007. (In this regard, a December 2019 VA website printout pertaining to the Veteran’s service history noted that the Veteran served in the Air Force Reserve during this timeframe). Such records would include line of duty determinations, point statements, hospital records, examinations, etc. If these Air Force Reserve records dated from 2004 to 2007 are unavailable or do not exist, a negative reply to this effect is required from the appropriate custodian. 2. The AOJ should ask the Veteran to complete a VA Form 21-4142 to secure any private treatment records dated from 2004 to the present for post-service treatment of his knee, elbow, shoulder, low back, and neck disorders. These private treatment records include those from Dr. Mario A. Ochoa, who ordered an August 2019 radiology report from Adventist that is present in the claims file, as well as Dr. Stanley Y. Louie, the Veteran’s primary care physician. The AOJ should make two requests for the authorized records from this private facility, unless it is clear after the first request that a second request would be futile. The Veteran is also asked to provide any of the above private treatment records himself, if he has them in his possession. 3. The AOJ should obtain the Veteran’s VA treatment records from the VA healthcare system in Fresno, California, dated from June 2019 to the present and associate them with the claims file. 4. After completion of steps 1-3, for the low back disorder, obtain a VA addendum opinion from the February 2020 VA examiner. If this VA examiner is no longer available, another qualified VA clinician must provide the VA addendum opinion. Only if deemed necessary by the VA examiner is another VA low back examination necessary. The VA examiner must review the claims file. The VA examiner must provide a rationale to support the opinions. The VA examiner is asked to provide a response to the following: (a.) Is any current low back disability “at least as likely as not” (i.e., 50 percent or more probable) causally or etiologically related to the Veteran’s service in the Air Force from 1999 to 2004 – specifically, due to heavy lifting from the Veteran’s military occupational specialty (MOS) as a clerk? In answering this particular question, the VA examiner should explain whether the Veteran’s credible report that he had to carry 60 pound bags on his back for a mile or two while in Kuwait in 2001 caused a low back disorder to develop over time. (b.) Is any current low back disability “at least as likely as not” (i.e., 50 percent or more probable) causally or etiologically related to the Veteran’s service in the Air Force from 1999 to 2004 – specifically, to an alleged accident in June 2004 in which he fell off a truck and struck his low back on the ground while helping his wife move? The Veteran admits he did not seek any in-service treatment during service for his low back on that occasion or on any other occasion. (c.) Is it “at least as likely as not” (i.e., 50 percent or more probable) that any current arthritis of the low back manifested within one year after discharge from service (that is – did any current arthritis of the low back first manifest post-service between August 2004 and August 2005)? (d.) In providing the requested opinions above, the VA examiner should consider the Veteran’s lay description of his in-service low back injuries and symptoms as well as his lay description of his post-service low back symptoms. It should be noted if there is any medical reason to accept or reject the proposition that the Veteran’s reported injuries and symptoms in service and thereafter represented the onset of his current low back disability. Stated another way, do the Veteran’s lay reports about his in-service and continuing post-service low back symptoms align with how the currently diagnosed low back disability is known to develop, or are the Veteran’s lay reports generally inconsistent with medical knowledge or are they implausible? (e.) In rendering the above opinions, the VA examiner is advised of the following: Service treatment records (STRs) dated from 1999 to 2004 are negative for any complaint, treatment, or diagnosis of a low back disorder. In an August 2001 STR post-deployment health assessment, the Veteran reported no health concerns and no events during deployment in Kuwait that would affect his health. No neurologic or orthopedic assessments were necessary per the military examiner at the time. In January 2003, February 2003, March 2004 STR health records, the option of reporting any “low back pain” was not selected. At a March 2004 STR report of medical assessment at separation, a separate physical examination did not assess any orthopedic disabilities. Post-service, at an October 2004 VA examination, the examination of the spine was normal. No low back condition was reported or diagnosed at that time. Post-service, the first evidence of a low back problem was a June 25, 2008 Concentra report on a date of workplace injury – while riding in the back of truck, the Veteran fell off and injured his lumbar and thoracic spine. At that time, the provider noted decreased sensation at L5-S1. Thereafter, various private and workers’ compensation treatment records and physiotherapy and acupuncture recommendations dated in 2008 and 2009 revealed “persistent” pain to the Veteran’s low back related to his post-service workplace injury that occurred on June 25, 2008. The diagnosis was lumbar spine strain with herniated nucleus pulposus (HNP) at L5/S1. In an August 2008 treatment record, it was noted that his low back injury was “2 months old.” A May 2009 Cal Care Medical Institute internal medicine consultation report noted no past medical history before this injury and no history of any other prior or subsequent work-related or motor vehicle related injuries. Post-service, January 2019 VA X-rays of the lumbar spine assessed “moderate degenerative disc disease L5-S1.” A February 2019 VA thoracolumbar spine examiner opined there was no nexus between this condition and the Veteran’s service in the Air Force from 1999 to 2004. 5. After completion of steps 1-3, for the LEFT shoulder disorder, obtain a VA addendum opinion from the February 2020 VA examiner. If this VA examiner is no longer available, another qualified VA clinician must provide the VA addendum opinion. Only if deemed necessary by the VA examiner is another VA shoulder examination necessary. The VA examiner must review the claims file. The VA examiner must provide a rationale to support the opinions. The VA examiner is asked to provide a response to the following: (a.) Is any current LEFT shoulder disability “at least as likely as not” (i.e., 50 percent or more probable) causally or etiologically related to the Veteran’s service in the Air Force from 1999 to 2004 – specifically, due to heavy lifting from the Veteran’s military occupational specialty (MOS) as a clerk? In answering this particular question, the VA examiner should explain whether the Veteran’s credible report that he had to carry 60 pound bags on his back for a mile or two while in Kuwait in 2001 caused a LEFT shoulder disorder to develop over time. (b.) Is any current LEFT shoulder disability “at least as likely as not” (i.e., 50 percent or more probable) causally or etiologically related to the Veteran’s service in the Air Force from 1999 to 2004 – specifically, to an alleged accident in June 2004 in which he fell off a truck and struck his left shoulder on the ground while helping his wife move? The Veteran admits he did not seek any in-service treatment during service for his LEFT shoulder on that occasion or on any other occasion. (c.) Is it “at least as likely as not” (i.e., 50 percent or more probable) that any current arthritis of the LEFT shoulder manifested within one year after discharge from service (that is – did any current arthritis of the LEFT shoulder first manifest post-service between August 2004 and August 2005)? (d.) In providing the requested opinions above, the VA examiner should consider the Veteran’s lay description of his in-service LEFT shoulder injuries and symptoms as well as his lay description of his post-service LEFT shoulder symptoms. It should be noted if there is any medical reason to accept or reject the proposition that the Veteran’s reported injuries and symptoms in service and thereafter represented the onset of his current LEFT shoulder disability. Stated another way, do the Veteran’s lay reports about his in-service and continuing post-service LEFT shoulder symptoms align with how the currently diagnosed LEFT shoulder disability is known to develop, or are the Veteran’s lay reports generally inconsistent with medical knowledge or are they implausible? (e.) In rendering the above opinions, the VA examiner is advised of the following: Service treatment records (STRs) dated from 1999 to 2004 are negative for any complaint, treatment, or diagnosis of a LEFT shoulder disorder. In an August 2001 STR post-deployment health assessment, the Veteran reported no health concerns and no events during deployment in Kuwait that would affect his health. No neurologic or orthopedic assessments were necessary per the military examiner at the time. At a February 2003 STR report of medical assessment at separation, the Veteran denied any abnormalities in the right or left upper extremities. At a March 2004 STR report of medical assessment at separation, a separate physical examination did not assess any orthopedic disabilities. Post-service, at an October 2004 VA examination, the examination of both upper extremities was normal. Specifically, the October 2004 VA examiner observed full range of motion in both shoulders. No LEFT shoulder condition was reported or diagnosed at that time. Post-service, the first evidence of a LEFT shoulder problem was a June 2008 Doctor’s First Report of Occupational Injury or Illness for workers compensation – while riding in the back of truck, the Veteran fell off and injured his LEFT shoulder. He reported LEFT shoulder pain after this fall. Thereafter, various private and workers’ compensation treatment records and physiotherapy and acupuncture recommendations dated in 2008 and 2009 revealed “persistent” pain to the Veteran’s LEFT shoulder, related to the post-service workplace injury that occurred on June 25, 2008. On private Concentra Occupational Medical Centers examinations in 2008, the Veteran’s LEFT shoulder was “tender” to the touch. In an August 2008 treatment record, it was noted that his LEFT shoulder injury was “2 months old.” A February 2009 diagnosis codes form assessed pain in the left shoulder / upper arm. A May 2009 Cal Care Medical Institute internal medicine consultation report noted no past medical history before this injury and no history of any other prior or subsequent work-related or motor vehicle related injuries. Post-service, a February 2019 VA shoulder examiner diagnosed a LEFT shoulder strain. This VA examiner opined there was no nexus between the current LEFT shoulder strain and the Veteran’s service in the Air Force from 1999 to 2004. 6. After completion of steps 1-3, for the neck disorder, obtain a VA addendum opinion from the February 2020 VA examiner. If this VA examiner is no longer available, another qualified VA clinician must provide the VA addendum opinion. Only if deemed necessary by the VA examiner is another VA neck examination necessary. The VA examiner must review the claims file. The VA examiner must provide a rationale to support the opinions. The VA examiner is asked to provide a response to the following: (a.) Does the Veteran have a current neck disability? If a diagnosis cannot be provided for the neck (e.g., no identifiable underlying pathology), the VA examiner should still specifically state whether any neck condition manifests in symptoms that causes functional impairment of earning capacity, associated with the Veteran’s complaints of neck pain. If there is functional impairment, then the VA examiner should consider the neck condition a “disability” for the purpose of providing the requested nexus opinion(s) below. (b.) Is any current neck disability “at least as likely as not” (i.e., 50 percent or more probable) causally or etiologically related to the Veteran’s service in the Air Force from 1999 to 2004 – specifically, due to heavy lifting from the Veteran’s military occupational specialty (MOS) as a clerk? In answering this particular question, the VA examiner should explain whether the Veteran’s credible report that he had to carry 60 pound bags on his back for a mile or two while in Kuwait in 2001 caused a neck disorder to develop over time. (c.) Is any current neck disability “at least as likely as not” (i.e., 50 percent or more probable) causally or etiologically related to the Veteran’s service in the Air Force from 1999 to 2004 – specifically, to an alleged accident in June 2004 in which he fell off a truck and struck his neck on the ground while helping his wife move? The Veteran admits he did not seek any in-service treatment during service for his neck on that occasion or on any other occasion. (d.) Is it “at least as likely as not” (i.e., 50 percent or more probable) that any current arthritis of the neck manifested within one year after discharge from service (that is – did any current arthritis of the neck first manifest post-service between August 2004 and August 2005)? (e.) In providing the requested opinions above, the VA examiner should consider the Veteran’s lay description of his in-service neck injuries and symptoms as well as his lay description of his post-service neck symptoms. It should be noted if there is any medical reason to accept or reject the proposition that the Veteran’s reported injuries and symptoms in service and thereafter represented the onset of any current neck disability. Stated another way, do the Veteran’s lay reports about his in-service and continuing post-service neck symptoms align with how any currently diagnosed neck disability is known to develop, or are the Veteran’s lay reports generally inconsistent with medical knowledge or are they implausible? (f.) In rendering the above opinions, the VA examiner is advised of the following: Service treatment records (STRs) dated from 1999 to 2004 are negative for any complaint, treatment, or diagnosis of a neck condition. In an August 2001 STR post-deployment health assessment, the Veteran reported no health concerns and no events during deployment in Kuwait that would affect his health. No neurologic or orthopedic assessments were necessary per the military examiner at the time. At a March 2004 STR report of medical assessment at separation, a separate physical examination did not assess any orthopedic disabilities. Post-service, at an October 2004 VA examination, the examination of the neck was “grossly regular.” Specifically, the October 2004 VA examiner observed full range of motion for the neck. No neck condition was reported or diagnosed at that time. Post-service, the first evidence of a neck problem was shortly after a June 25, 2008 work-related injury in which he fell off the back of a truck. Thereafter, various private and workers’ compensation treatment records and physiotherapy and acupuncture recommendations dated in 2008 and 2009 revealed “persistent” pain to the Veteran’s neck / cervical spine, related to his post-service workplace injury that occurred on June 25, 2008. On private Concentra Occupational Medical Centers examinations in 2008, the Veteran exhibited pain in his neck / cervical spine on extreme ranges of motion. In an August 2008 treatment record, it was noted that his neck injury was “2 months old.” A February 2009 diagnosis codes form assessed cervical spine strain / sprain and cervicalgia (neck pain). A May 2009 Cal Care Medical Institute internal medicine consultation report noted no past medical history before this injury and no history of any other prior or subsequent work-related or motor vehicle related injuries. Post-service, January 2019 VA X-rays of the cervical spine were “unremarkable.” A February 2019 VA neck examiner opined there was no current neck disability and therefore no nexus between any alleged neck condition and the Veteran’s service in the Air Force from 1999 to 2004. 7. After completion of steps 1-3, for the RIGHT elbow disorder, obtain a VA addendum opinion from the February 2020 VA examiner. If this VA examiner is no longer available, another qualified VA clinician must provide the VA addendum opinion. Only if deemed necessary by the VA examiner is another VA elbow examination necessary. The VA examiner must review the claims file. The VA examiner must provide a rationale to support the opinions. The VA examiner is asked to provide a response to the following: (a.) Does the Veteran have a current RIGHT elbow disability? If a diagnosis cannot be provided for the RIGHT elbow (e.g., no identifiable underlying pathology), the VA examiner should still specifically state whether any RIGHT elbow condition manifests in symptoms that causes functional impairment of earning capacity, associated with the Veteran’s complaints of RIGHT elbow pain. If there is functional impairment, then the VA examiner should consider the RIGHT elbow condition a “disability” for the purpose of providing the requested nexus opinion(s) below. (b.) Is any current RIGHT elbow disability “at least as likely as not” (i.e., 50 percent or more probable) causally or etiologically related to the Veteran’s service in the Air Force from 1999 to 2004 – specifically, due to heavy lifting from the Veteran’s military occupational specialty (MOS) as a clerk? In answering this particular question, the VA examiner should explain whether the Veteran’s credible report that he had to carry 60 pound bags on his back for a mile or two while in Kuwait in 2001 caused a RIGHT elbow disorder to develop over time. (c.) Is any current RIGHT elbow disability “at least as likely as not” (i.e., 50 percent or more probable) causally or etiologically related to the Veteran’s service in the Air Force from 1999 to 2004 – specifically, to an alleged accident in June 2004 in which he fell off a truck and struck his RIGHT elbow on the ground while helping his wife move? The Veteran admits he did not seek any in-service treatment during service for his RIGHT elbow on that occasion or on any other occasion. (d.) Is it “at least as likely as not” (i.e., 50 percent or more probable) that any current arthritis of the RIGHT elbow manifested within one year after discharge from service (that is – did any current arthritis of the RIGHT elbow first manifest post-service between August 2004 and August 2005)? (e.) In providing the requested opinions above, the VA examiner should consider the Veteran’s lay description of his in-service RIGHT elbow injuries and symptoms as well as his lay description of his post-service RIGHT elbow symptoms. It should be noted if there is any medical reason to accept or reject the proposition that the Veteran’s reported injuries and symptoms in service and thereafter represented the onset of any current RIGHT elbow disability. Stated another way, do the Veteran’s lay reports about his in-service and continuing post-service RIGHT elbow symptoms align with how any currently diagnosed RIGHT elbow disability is known to develop, or are the Veteran’s lay reports generally inconsistent with medical knowledge or are they implausible? (f.) In rendering the above opinions, the VA examiner is advised of the following: Service treatment records (STRs) dated from 1999 to 2004 are negative for any complaint, treatment, or diagnosis of a RIGHT elbow disorder. In an August 2001 STR post-deployment health assessment, the Veteran reported no health concerns and no events during deployment in Kuwait that would affect his health. No neurologic or orthopedic assessments were necessary per the military examiner at the time. At a February 2003 STR report of medical assessment at separation, the Veteran denied any abnormalities in the right or left upper extremities. At a March 2004 STR report of medical assessment at separation, a separate physical examination did not assess any orthopedic disabilities. Post-service, at an October 2004 VA examination, the examination of both upper extremities was normal. Specifically, the October 2004 VA examiner observed full range of motion for the elbows. No RIGHT elbow condition was reported or diagnosed at that time. Post-service, the first evidence of a RIGHT elbow problem was a June 25, 2008 Concentra report on a date of workplace injury report – while riding in the back of truck, the Veteran fell off and landed on and injured his RIGHT elbow. On examination, his RIGHT elbow displayed moderate swelling, tenderness, and decreased range of motion. The diagnosis was a RIGHT elbow contusion. A June 25, 2008 Concentra X-ray of the right elbow was negative for any abnormality. Thereafter, various private and workers’ compensation treatment records and physiotherapy and acupuncture recommendations dated in 2008 and 2009 revealed “persistent” pain to the Veteran’s RIGHT elbow, related to his post-service workplace injury that occurred on June 25, 2008. In an August 2008 treatment record, it was noted that his RIGHT elbow was “2 months old.” A February 2009 diagnosis codes form assessed a contusion of the right elbow and pain in the right forearm. A May 2009 Cal Care Medical Institute internal medicine consultation report noted no past medical history before this injury and no history of any other prior or subsequent work-related or motor vehicle related injuries. Post-service, January 2019 VA X-rays of the RIGHT elbow showed a “normal” right elbow. A February 2019 VA elbow examiner opined there was no current RIGHT elbow disability and therefore no nexus between any alleged RIGHT elbow condition and the Veteran’s service in the Air Force from 1999 to 2004. The lack of a current diagnosis was confirmed by an August 5, 2019 Adventist Health X-ray that showed a “normal right elbow.” 8. After completion of steps 1-3, for the bilateral knee disorder, obtain a VA addendum opinion from the February 2020 VA examiner. If this VA examiner is no longer available, another qualified VA clinician must provide the VA addendum opinion. Only if deemed necessary by the VA examiner is another VA knee examination necessary. The VA examiner must review the claims file. The VA examiner must provide a rationale to support the opinions. The VA examiner is asked to provide a response to the following: (a.) Does the Veteran have a current LEFT knee disability? If a diagnosis cannot be provided for the LEFT knee (e.g., no identifiable underlying pathology), the VA examiner should still specifically state whether any LEFT knee condition manifests in symptoms that causes functional impairment of earning capacity, associated with the Veteran’s complaints of LEFT knee pain. If there is functional impairment, then the VA examiner should consider the LEFT knee condition a “disability” for the purpose of providing the requested nexus opinion(s) below. (Also, the VA examiner should determine if any additional Air Force Reserve, private, or VA treatment records secured on remand reveal a current diagnosis for the LEFT knee). (Please note that for the other knee – the RIGHT knee, a current diagnosis already exists – “minimal chronic changes” to the RIGHT knee per August 2019 Adventist Health X-rays). (b.) Is any current RIGHT or LEFT knee disability “at least as likely as not” (i.e., 50 percent or more probable) causally or etiologically related to the Veteran’s service in the Air Force from 1999 to 2004 – specifically, due to the rigors of basic training in 1999 that involved running and marching? (c.) Is it “at least as likely as not” (i.e., 50 percent or more probable) that any current RIGHT or LEFT knee arthritis manifested within one year after discharge from service (that is – did any current arthritis of the RIGHT or LEFT knee first manifest post-service between August 2004 and August 2005)? (d.) In providing the requested opinions above, the VA examiner should consider the Veteran’s lay description of his in-service bilateral knee injury and symptoms as well as his lay description of his post-service bilateral knee symptoms. It should be noted 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 any current bilateral knee disability. Stated another way, do the Veteran’s lay reports about his in-service and continuing post-service bilateral knee symptoms align with how any currently diagnosed bilateral knee disability is known to develop, or are the Veteran’s lay reports generally inconsistent with medical knowledge or are they implausible? (e.) In rendering the above opinions, the VA examiner is advised of the following: Service treatment records (STRs) dated from 1999 to 2004 are negative for any complaint, treatment, or diagnosis of a bilateral knee disorder. In an August 2001 STR post-deployment health assessment, the Veteran reported no health concerns and no events during deployment in Kuwait that would affect his health. No neurologic or orthopedic assessments were necessary per the military examiner at the time. At a February 2003 STR report of medical assessment at separation, the Veteran denied any abnormalities in the right or left lower extremities. At a March 2004 STR report of medical assessment at separation, a separate physical examination did not assess any orthopedic disabilities. Post-service, at an October 2004 VA examination, the examination of both lower extremities was normal. Specifically, the October 2004 VA examiner observed full range of motion for both knees with a normal gait. No bilateral knee condition was reported or diagnosed at that time. There was no mention of any knee problems as the result of the Veteran’s post-service June 25, 2008 work injury when he fell of the back of a truck. His lower extremities were examined and were “normal” in June 2008. All post-service medical evidence of record dated from 2004 to 2018 failed to reveal any knee treatment or any knee diagnosis. Post-service, the first clinical evidence of a knee problem was an August 2019 Adventist Health X-ray of the right knee that revealed “minimal chronic changes” to the right knee. However, X-rays of the left knee in August 2019 were normal. Post-service, January 2019 VA X-rays of both knees demonstrated “unremarkable osseous structures bilateral knees.” A February 2019 VA knee examiner opined there was no current RIGHT or LEFT knee disability and therefore no nexus between any alleged RIGHT or LEFT knee condition and the Veteran’s service in the Air Force from 1999 to 2004. However, the February 2019 VA knee examiner documented the Veteran’s lay report of flare-ups of both knees as “kneeling mostly” and the Veteran’s lay report that the functional loss or functional impairment resulted in “slower movement” of both knees during flare-ups. The Veteran also reported to the February 2019 VA knee examiner that his knee condition has “stayed the same” since he hurt his knees during his 1999 basic training. (On remand the Board is requesting private treatment records that may show post-service treatment for the knees). DAVID L. WIGHT Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board P.S. Rubin, 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.