Citation Nr: 21014059 Decision Date: 03/11/21 Archive Date: 03/11/21 DOCKET NO. 16-04 313 DATE: March 11, 2021 REMANDED Entitlement to service connection for a right knee disability is remanded. Entitlement to service connection for a cervical spine disability is remanded. REASONS FOR REMAND The Veteran served on active duty from January 2003 through May 2004 and from May 2006 through August 2007. He also had approximately 32 years of National Guard service. In August 2019, the Board of Veterans’ Appeals (Board), in pertinent part, denied the issue of entitlement to service connection for a right knee disability and remanded the issue of entitlement to service connection for a cervical spine disability. The Veteran appealed the denial of entitlement to service connection for a right knee disability to the United States Court of Appeals for Veterans Claims (Court). In October 2020, an order was issued granting a Joint Motion for Partial Remand (JMPR) that the portion of the Board decision denying the Veteran’s claim for service connection for a right knee disability be vacated and remanded. The issue of entitlement to service connection for a cervical spine disability has also returned to the Board since the 2019 Remand. 1. Entitlement to service connection for a right knee disability is remanded. Although the Board regrets the additional delay, the Veteran’s claim must be remanded again before the Board is able to issue a decision on the merits. The JMPR notes the September 2012 VA examination report indicates that the examiner reviewed an x-ray report of the right knee from September 19, 2012. While what appears to be a summary of the report is included with the examination report, it is unclear if there is additional outstanding information from the x-ray report that has not been associated with the claims file. The JMPR notes that where such records are in the possession of the federal government, reasonable efforts include “as many requests as are necessary” unless it “concludes that the records sought do not exist or that further efforts to obtain those records would be futile.” 38 C.F.R. § 3.159(c)(2). As such, the Board must remand the issue of entitlement to service connection for a right knee disability to ensure that reasonable efforts are made to obtain the September 19, 2012, x-ray report relied on by the September 2012 VA examiner. 2. Entitlement to service connection for a cervical spine disability is remanded. Additionally, the Board notes that a new medical opinion was obtained in December 2019 regarding whether the Veteran’s cervical spine disability was caused by, or aggravated by, the Veteran’s service. Unfortunately, the Board finds that this opinion is inadequate as to whether the Veteran’s condition was aggravated by the Veteran’s ACDUTRA or INACDUTRA service. The examiner does not address the Veteran’s reports of muscle spasm of the right trapezius and headaches after training and wearing his gear and helmet in September 2011. See September 2012 VA examination. The examiner notes that the initial neck condition did not begin during active duty and that there is no line of duty to support a neck condition occurred during inactive duty training and that there is no medical evidence of a worsened condition until October 2011, six years after the initial cervical incident. The examiner then indicates other factors that could be involved in the Veteran’s condition (smoking, aging) and opines that is less likely than not the cervical spine condition was aggravated his active duty, or while performing ACDUTRA or INACDTURA to include wearing Kevlar equipment. The Board finds that a new medical opinion should be obtained regarding whether the September 2011 event during training aggravated his prior cervical spine disability. The matters are REMANDED for the following action: 1. Undertake appropriate efforts to associate the full September 19, 2012 right knee x-ray report relied upon by the September 2012 VA examiner with the claims file. If the report is unavailable, the Veteran should be properly notified and given an opportunity to provide it in accordance with 38 C.F.R. § 3.159 (e). 2. Undertake reasonable efforts to obtain and associate with the claims file any outstanding obtain any private treatment records related to the Veteran’s physical therapy and chiropractic treatment received in 2011 and 2012. The Veteran, and his representative, should be asked to provide any needed assistance in identifying and obtaining these records. 3. After the above development has been completed, undertake appropriate efforts to schedule the Veteran for a VA examination to determine the etiology the Veteran’s current neck disability. The claims file must be made available to the examiner. The examiner is specifically asked to provide the following opinion: a) Whether any current neck disability at least as likely as not (a 50 percent or greater probability) was aggravated by any injury incurred during the Veteran’s ACDUTRA or INACDUTRA. The examiner is asked to specifically discuss the Veteran’s report of a muscle spasm of the right trapezius and headaches after training and wearing his gear and helmet in September 2011. A complete rationale for all opinions must be provided. In providing the requested opinions, the examiner must address the Veteran’s lay assertions. Lay statements of record cannot be disregarded solely due to lack of contemporaneous medical evidence. If the examiner cannot provide the requested opinion without resorting to speculation, it must be so stated, and the examiner must provide a rationale for this determination. K. Parakkal Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board P.M. Johnson, 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.