Citation Nr: 21006838 Decision Date: 02/05/21 Archive Date: 02/05/21 DOCKET NO. 19-32 471 DATE: February 5, 2021 REMANDED Entitlement to service connection for a left knee disability to include as secondary to the Veteran’s service-connected right knee disability is remanded Entitlement to service connection for lumbar spine condition to include as secondary to the Veteran’s service-connected right knee disability is remanded. Entitlement to service connection for cervical strain to include as secondary to the Veteran’s service-connected right knee disability is remanded. REASONS FOR REMAND The Veteran served on active duty from January 1954 to January 1956. In February 2021, the Veteran testified at a video conference hearing (hearing) before the undersigned Veterans Law Judge. During the hearing, the Veteran raised a motion to advance on docket due to his age. Accordingly, the undersigned grants the Veteran’s motion and advances the appeal on the Board’s docket pursuant to 38 C.F.R. § 20.902(c)(1)(2020). 38 U.S.C. § 7107 (a)(2) (2012). The Board of Veterans Appeals (Board) notes that the Veteran’s service treatment records (STRs) were destroyed or are missing. See May 2014 VA Form 21-31010 Request for Information (reflecting that the veteran’s complete medical/dental record is “fire-related”.) In situations where the service records are incomplete, lost or presumed destroyed through no fault of the veteran, VA has a heightened duty to assist in the development of the case, as well as a heightened obligation to explain findings and conclusions and to consider carefully the benefit-of-the-doubt doctrine. See Marciniak v. Brown, 10 Vet. App. 198, 200 (1997), citing O’Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). The Board also notes that the Regional Office (RO) attempted to obtain sick/morning reports for XVIII Airborne Corps, Headquarters Company, 2nd Battalion, 505th Airborne Infantry Regiment, at Fort Bragg Hospital and dispensary from May 1955 to July 1955. See Deferred Rating Decisions dated July 2017 and May 2018. However, the RO received a negative response to these requests in March 2019. See March 2019 VA 21-3101. Accordingly, in a letter dated September 2019, the VA informed the Veteran the actions it took and its determination that his STRs cannot be located and were unavailable. See September 2019 Final Attempt Letter. Thus, under these circumstances, additional attempts to obtain these records would be futile. 38 C.F.R. § 3.159 (c)(2) and (3). Service connection 1. – 3. Left knee, lumbar spine, and cervical spine disabilities Although further delay is regrettable, the Board finds that a remand is necessary to obtain addendum medical opinions for the Veteran’s claims. Specifically, the Board finds that the December 2016 VA medical opinion for the Veteran’s claims is inadequate for the reasons discussed below. With regard to the Veteran’s left knee disability the December 2016 VA examiner provided a negative nexus opinion and reasoned that there was “no history of a significant injury” and that degenerative joint disease was “unlikely to result from a remote history of parachute jumping.” See October 2016 VA Medical Opinion Disability Benefits Questionnaire (DBQ). The examiner also noted that the Veteran had other risk factors including advanced age and obesity. Id. The October 2016 VA examiner also provided negative nexus opinions for the Veteran’s lumbar and cervical spine disabilities. See October 2016 VA Medical Opinion DBQ. She reasoned that there was no history of in-service injury to the Veteran’s neck or back, and that “[i]n the absence of a significant injury, the act of parachute jumping would not be expected to result in later development of a chronic back [] [and neck conditions.]” Id. The Board finds that the October 2016 VA medical opinion is inadequate for adjudication as it improperly relies on the absence of evidence, specifically a lack of treatment records. 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). This is significant because the RO has determined that the Veteran’s STRs may have been destroyed in the 1973 fire and was unable to obtain his STRs. As such, considering the Board’s heightened duty, the Board is unable to rely on this opinion which is based on lack of in-service treatment for his left knee, lumbar, and cervical spine disabilities. The Board also finds October 2016 VA medical opinion is inadequate because the examiner failed to address the Veteran’s competent and credible lay statements regarding his in-service injury and continuity of symptomology. 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). The Board notes that the Veteran submitted a private medical opinion from Dr. C.M.P. See March 2020 Letter from Dr. C.M.P. In his letter, Dr. C.M.P. stated that the Veteran completed over 64 jumps as a paratrooper during active service. Id. He stated that “[t]he same forces that went through [Veteran’s] right knee while parachuting went through his left knee as well.” Dr. C.M.P. also cited medical literature regarding parachuting injuries and concluded his letter by opining that the Veteran’s left knee, and lumbar and cervical spine disabilities were more likely than not related to parachuting during active service. Id. Unfortunately, the Board finds that the private medical opinion from Dr. C.M.P. is also inadequate because it is not supported by an adequate rationale. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008) (A medical examination and opinion must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two). Accordingly, the claims are remanded for an addendum medical opinion regarding the Veteran’s left knee, cervical, and lumbar spine disabilities that is supported by adequate rationale and which addresses the Veteran’s competent and credible lay statements inservice injury or events. The VA examiner should address the nature and etiology of the Veteran’s disabilities to include whether his left knee, and cervical and lumbar spine disabilities were caused by or aggravated by his service-connected right knee disability. Regarding, the Veteran’s left knee disability, the October 2016 VA examiner noted that his left knee disability may be associated with obesity. As such, the VA examiner should address whether obesity has served as an intermediate step between the service-connected right knee disability and the left knee. The Board notes the claims file reflects that the Veteran has been receiving treatment from the Fort Harrison VA Medical Center (VAMC), to include the Billings Community Based Outpatient Clinic (CBOC), Hillsboro VA Clinic, and Benjamin C. Steele Clinic; Sheridan VAMC, Cheyenne VAMC and that records dated through December 2018 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 Fort Harris 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 December 2018 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 Fort Harrison VAMC, Sheridan VAMC, Cheyenne VAMC, Benjamin C. Steele Clinic, and Billings 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. Left Knee 3. Obtain an addendum opinion from the VA examiner(s) who conducted the October 2016 VA examination if available. If the prior VA examiner is unavailable, obtain an addendum opinion from a medical professional with appropriate experience to render an etiology opinion for the Veteran’s left knee disability. • 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 2016 VA examination report 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 left knee disability could be related to or caused by the in-service parachute jumps including over 60 combat jumps completed by the Veteran. See February 2015 VA Form 21-4138 (Veteran’s Lay Statement). • 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. • The examiner should address the private medical opinion from Dr. C.M.P. and state a basis for agreement or disagreement with this medical opinion. (b.) Are the Veteran’s assertions that his current left knee disability was caused by his in-service injury from completing over 60 parachute jumps consistent with medical knowledge or implausible? (c.) Do the Veteran’s reports about his symptoms or his in-service injury from completing over 60 parachute jumps align with how the Veteran’s left knee disability is known to develop? (d.) Whether it is medically feasible that his current left knee disability was caused by his in-service injury from completing over 60 parachute jumps. 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 left knee condition is caused by his service-connected right knee disability. (f.) Whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran’s left knee condition underwent an incremental increase (aggravated), regardless of permanence, by his service-connected right knee disability. • 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. (g.) The examiner should also address whether it is at least as likely as not that obesity served as an “intermediate step” between the right knee disability and the left t knee disability, by answering these questions: i. Is it at least as likely as not that the Veteran’s right knee disability caused the Veteran to become obese? ii. If so, was the obesity that resulted from the right knee disability a substantial factor in causing the left knee disability? iii. Would the left knee disability not have occurred, but for the obesity caused by the service-connected right knee disability? Cervical and lumbar spine disabilities 5. Return the claims file to the October 2016 VA examiner for an addendum medical opinion if available, or to an appropriate clinician to determine the nature and etiology for the Veteran’s cervical and lumbar spine disabilities. 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 2016 VA examination report and medical opinion, the examiner is requested to address the following: 7. Assuming that the standard is at least as likely as not, is it possible that the Veteran’s current cervical and lumbar spine disabilities could be related to or caused by the in-service parachute jumps including over 60 combat jumps completed by the Veteran. See February 2015 VA Form 21-4138 (Veteran’s Lay Statement). (a.) Are the Veteran’s assertions that his cervical and lumbar spine disability were caused by his in-service injury from completing over 60 parachute jumps consistent with medical knowledge or implausible? (b.) Do the Veteran’s reports about his symptoms or his in-service injury from completing over 60 parachute jumps align with how the Veteran’s cervical and lumbar spine disability is known to develop? (c.) Whether it is medically feasible that his current cervical and lumbar disability was caused by his in-service injury from completing over 60 parachute jumps. 1. If not, state why not and on what basis this conclusion was made. 2. 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. (d.) The examiner should address the private medical opinion from Dr. C.M.P. and state the basis for agreement or disagreement with this medical opinion. 8. Whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran’s cervical and lumbar spine disabilities are caused by his service-connected right knee disability. 9. Whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran’s left knee condition cervical and lumbar spine disabilities underwent an incremental increase (aggravated), regardless of permanence, by his service-connected right knee disability. • 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. 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(s) is/are unable to offer an opinion without resorting to speculation, a thorough explanation as to why an opinion cannot be rendered should be provided. 10. 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 Attorney 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.