Citation Nr: 21012735 Decision Date: 03/05/21 Archive Date: 03/05/21 DOCKET NO. 17-49 587 DATE: March 5, 2021 REMANDED Entitlement to service connection for a lumbar spine disability is remanded. Entitlement to service connection for arthritis in the knees or ankles is remanded. Entitlement to service connection for gum disease is remanded. REASONS FOR REMAND The Veteran served on active duty from July 1970 to July 1974. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a March 2015 rating decision by the Department of Veterans Affairs (VA). In February 2021, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. Although the Veteran filed a claim for “arthritis,” see October 2014 VA Form 21-526EZ, he later clarified that he intends his claim to cover arthritis in his knees and ankles. See February 2021 Board hearing. The Board has recharacterized the issue accordingly. On his September 2017 substantive appeal (VA Form 9), the Veteran requested eligibility for VA dental services. A claim of service connection for a dental condition is also a claim for VA outpatient dental treatment under 38 C.F.R. § 3.381. Mays v. Brown, 5 Vet. App. 302 (1993). In dental claims, a Regional Office (RO) adjudicates the service connection claim for compensation purposes and a Veterans Health Administration (VHA) facility adjudicates the claim for outpatient treatment. As this matter stems from an adverse determination by an RO, the appeal is limited to the issue of service connection for a dental condition for the purpose of compensation. The Veteran may resubmit the claim of service connection for a dental condition for the purpose of obtaining VA outpatient dental treatment to the appropriate VHA facility. 1. Entitlement to service connection for a lumbar spine disability. Service treatment records (STRs) reflect a report of chronic low back pain. See August 1972 STRs. The Veteran testified that his back continued to hurt during service, but he did not report it at his separation examination because he wanted to go home. He testified that he continued to have back pain within the first year after service. Although he had numerous jobs after service that included heavy labor, he did not injure himself during the first year after service. See February 2021 Board hearing. The record reflects that the Veteran injured his back several times after separation from service, including a motorcycle accident in 1975, one year after separation from service, and an accident in October 2002. See, e.g., July 2003 VA examination. He filed for non-service-connected pension for his back after his accident in 2002. See May 2003 VA Form 21-526. A January 2015 VA examiner diagnosed lumbosacral strain and opined it was less likely than not related to the Veteran’s service. However, the examiner merely based his opinion on the fact that the Veteran’s discharge examination reflected a normal spine. This opinion is inadequate because the examiner did not have the opportunity to consider the Veteran’s testimony about symptoms immediately after service. Additionally, while the VA examination stated diagnostic imaging had not been completed, January 2015 VA treatment records reflect an x-ray showing questionable mild lumbar spondylosis. Because the diagnosis is unclear and there is an inadequate opinion, remand for a new examination is necessary. 2. Entitlement to service connection for arthritis in the knees or ankles. During his February 2021 Board hearing, the Veteran asserted that his arthritis in his knees and ankles was due to his back disability. Prior to his hearing, he also asserted that his arthritis was due to strenuous activities during service. See April 2015 notice of disagreement. Medical records reflect a diagnosis of arthritis in the knees. See December 2015 VA treatment records. There are many records discussing a post-service fracture in the Veteran’s right ankle, but there is no diagnosis of arthritis for the ankles. See, e.g., April 2011 VA treatment records. However, treatment records reflect there may be arthritis. See August 2013 VA treatment records (reflecting a past medical history of right ankle arthritis). Considering the low standards of McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006), the Board finds that remand is warranted for knee and ankle examinations. 3. Entitlement to service connection for gum disease. The Veteran reported receiving VA treatment after records were last obtained and possibly private treatment as well. See February 2021 Board hearing. Thus, this issue must be remanded to obtain outstanding records. The matters are REMANDED for the following action: 1. The AOJ should obtain copies of VA treatment records from July 2017 to the present. 2. The AOJ should obtain, if possible, records of relevant private evaluations and treatment the Veteran has received. The Veteran must assist in the matter by identifying his private healthcare providers and by submitting releases for VA to obtain any private records identified. 3. After the development in the first two directives is completed, the AOJ should arrange for a VA examination of the Veteran to determine the nature and likely cause of any lumbar spine disability. The examiner should review the claim file (including this remand) and note such review was conducted. Based on review of the record and examination of the Veteran, the examiner should provide an opinion with detailed rationale that responds to the following: (a.) Please identify, by diagnosis, all lumbar spine disabilities present during the appeal period (from October 2014). The examiner should consider whether the Veteran has spondylosis, as noted in January 2015 VA treatment records. (b.) For each lumbar spine disability diagnosed, is it at least as likely as not (50% or greater probability) that such disability was either incurred in or otherwise related to the Veteran’s military service? Please explain why. The examiner must discuss the Veteran’s reports of symptoms within a year after service despite having no injury. The examiner may not rely solely on the absence of medical evidence immediately after service. 4. After the above development is completed, the AOJ should arrange for VA examinations of the Veteran to determine the nature and likely cause of any knee or ankle arthritis. The examiner should review the claim file (including this remand) and note such review was conducted. Based on review of the record and examination of the Veteran, the examiner should provide an opinion with detailed rationale that responds to the following: (a.) Please identify whether the Veteran has ankle arthritis. (b.) For the Veteran’s knee arthritis and if ankle arthritis is diagnosed, is it at least as likely as not (50% or greater probability) that such disability was either incurred in or otherwise related to the Veteran’s military service? Please explain why. The examiner may not rely solely on the absence of evidence in STRs or records immediately after service. 5. If upon completion of the above action the issues remain denied, the case should be returned to the Board after compliance with appellate procedures. E. I. VELEZ Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Sandler, 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.