Citation Nr: 21011765 Decision Date: 03/02/21 Archive Date: 03/02/21 DOCKET NO. 14-29 321 DATE: March 2, 2021 REMANDED Entitlement to service connection for a left knee disability is remanded. Entitlement to service connection for a left tibia disability manifested by pain, including shin splints, is remanded. Entitlement to service connection for an acquired psychiatric disability, to include as secondary to a claimed left knee disability, is remanded. Entitlement to a total rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty from November 1975 to August 1979. He testified at a videoconference hearing before the undersigned in February 2018. A transcript is of record. These issues were previously before the Board in June 2018 and July 2020, at which time they were remanded for further development. Unfortunately, remand is again required. 1. Entitlement to service connection for a left knee disability is remanded. 2. Entitlement to service connection for a left tibia disability manifested by pain, including shin splints. Initially, the Board notes that evidence indicates that there may be outstanding relevant VA and private treatment records. In VA treatment records associated with the claims file since the July 2020 Board decision, there are numerous notations beginning in August 2020 regarding a VA Community Care orthopedics referral. In November 2020, there are additional indications that the Veteran had been seen by Dr. R.C. through the VA Community Care program and that appointment documentation was available in the VISTA portion of the Veteran’s medical file. See November 2020 NonVA Consult. However, these records have not been associated with the Veteran’s claims file and are unavailable to the Board to review in their current form. Remand is warranted so that all records regarding the Veteran’s orthopedic VA Community Care can be obtained and properly associated with the claims file. In its July 2020 remand, the Board directed the agency of original jurisdiction (AOJ) to obtain an opinion from an appropriate clinician regarding whether the Veteran’s left knee and left shin splint disabilities were at least as likely as not incurred in or caused by an in-service injury, event, or illness. The clinician was asked to consider and discuss the September 12, 2013, letter from Dr. R.S. noting that he saw the Veteran for left knee problems in 1987, and at that time, tests were positive for a meniscus tear and a lateral collateral ligament lesion, as a previous VA examiner failed to adequately do so. The Veteran underwent VA examination in December 2020. Upon examination, the examiner opined that the Veteran’s left knee condition was less likely than not incurred in or caused by an in-service injury, event, or illness. In providing his rationale, the examiner indicated that he had thoroughly reviewed the claims file and afforded special attention to the Veteran’s February 2018 hearing testimony, as well as the September 2018 letter from Dr. R.S. The examiner stated that while the September 2018 letter supported left knee treatment in 1987, it did not resolve the issue that there was “no documentation” of a left leg condition in service. The examiner then relied on the lack of in-service documentation in support of a negative nexus opinion. In regard to the Veteran’s asserted shin splint disability, the December 2020 examiner stated that while the Veteran had shin splints in service, he did not have a current diagnosis of shin splints. By way of rationale, he stated that the Veteran’s current lateral shin pain appeared to be the lateral proximal tibia rather than shin splints, which are on the medial aspect of the mid-tibia. He opined that the Veteran’s current pain was likely due to his degenerative arthritis and residuals of his arthroscopy. It remains unclear as to whether the Veteran ever had shin splints during the period under review, or whether such had resolved during the period. If the latter, a nexus opinion is still required. Based on the above, the Board finds that remand is warranted so all VA that a medical opinion can be obtained that adequately addresses the deficiencies noted herein. 3. Entitlement to service connection for an acquired psychiatric disability, to include as secondary to a claimed left knee disability is remanded. 4. Entitlement to a TDIU is remanded. Finally, because a decision on the remanded issues of entitlement to service connection for a left knee disability and a left shin splint disability could significantly impact the outcome of the Veteran’s service-connection claim for an acquired psychiatric disability, to include as secondary to a claimed left knee disability, and entitlement to a TDIU, action on these two claims is deferred. The matters are REMANDED for the following action: 1. Obtain all of the Veteran’s VA Community Care orthopedic treatment records that have not already been associated with the claims file, including treatment records from Dr. R.C. All VA Community Care orthopedic records should then be associated with the claims file, to include those located in the VISTA portion of the Veteran’s VA medical records. If no records are available, this should be made clear. 2. The Veteran should be asked to submit, or authorize VA to obtain on his behalf any records of private care that are not already on file, to include from Southern Oregon Orthopedics. All appropriate steps should b taken to obtain identified records. 3. Obtain an addendum opinion from an appropriate clinician other than December 2020 examiner to determine the nature and etiology of the Veteran’s claimed left knee and left tibia pain disabilities. Upon review of the file, the reviewing clinician is asked to respond to each of the following: (a.) Identify all current left knee and left tibia disabilities, to include shin splints. If the reviewing clinician determines that the Veteran does not have shin splints, the clinician should make clear whether the disability ever existed during the time period between June 2013 to the present, and if so, whether such had resolved since that time. (b.) For each left knee and left tibia disability identified in (a), to include any disability that was present in June 2013 but resolved, is it at least as likely as not (50 percent or greater probability) that such disability had onset in or is otherwise related to service? The clinician’s attention is directed to the following service treatment records and medical evidence of records: • Health Record dated March 18, 1977, reporting pain under kneecap (which knee unspecified) and knot mid-shin (which leg unspecified) and diagnosing shin splints and ligament strain. • Health Record dated March 24, 1977, treating tibia pain (leg unspecified) and reporting no trauma. • Health Record dated March 24, 1977, reporting pain in the medial aspect of the left leg, a small lump on the shin, pain in the knee, a previous diagnosis of shin splints with no relief after seven days of light duty, and referring the Veteran to the medical officer for evaluation In providing a nexus opinion, the clinician should consider these treatment records, as well as the Veteran’s testimony presented at his February 2018 hearing, indicating that he injured his left knee during service, and had problems with squatting since that time, notwithstanding the fact that he did not immediately seek treatment. The clinician should also consider and discuss the September 12, 2013, letter from Dr. R.S. noting that he saw the Veteran for left knee problems in 1987, and at the time tests were positive for a meniscus tear and a lateral collateral ligament lesion. Taking into consideration the nature and severity of the Veteran’s current disabilities, the reviewing clinician should make clear if, from a medical standpoint, there is reason to call into question the Veteran’s report of in-service injuries and report of continuing symptoms since service. If lack of documented care during service is a determinative factor, the clinician should explain why such is clinically significant. Alternatively, if there is no reason to call into question the Veteran’s reported history his should also be made clear. If in the opinion of the reviewing clinician, answers to the questions above cannot be provided without an in-person or virtual examination or interview, such should be scheduled. 4. After completing any other development deemed necessary, readjudicate all issues on appeal. If any benefit sought is denied, issue the Veteran and his attorney a supplemental statement of the case. V. Chiappetta Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board L. Bristow Williams, 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.