Citation Nr: 21015507 Decision Date: 03/17/21 Archive Date: 03/17/21 DOCKET NO. 17-27 486 DATE: March 17, 2021 REMANDED Entitlement to service connection for a lumbar spine disability, is remanded. Entitlement to service connection for right knee patellofemoral pain syndrome with degenerative arthritis, is remanded. Entitlement to service connection for left knee patellofemoral pain syndrome with degenerative arthritis, is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from February 1966 to February 1968. This case originally came before the Board on appeal of an April 2013 and April 2018 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO). The matter was previously before the Board in July 2019. However, the Veteran appealed the July 2019 Board determination denying entitlement to service connections for a bilateral knee injury and entitlement to service connection for a lumbar spine disability to the United States Court of Appeals for Veterans Claims (Court). In June 2020, the Court issued an order granting the parties' Joint Motion for Partial Remand (JMPR), vacating the part of the Board's decision that denied service connection for the bilateral knee issues, as well as service connection for his back condition, and remanding the issue back to the Board for compliance with the JMPR. The Court's remand confers on the appellant a right to compliance with the terms of the remand order and imposes on the Secretary a concomitant duty to ensure compliance with those terms. See Stegall v. West, 11 Vet. App. 268, 271 (1998); Forcier v. Nicholson, 19 Vet. App. 414, 425 (2006). The matter is properly before the Board and being remanded in order to comply with terms of the JMPR. The Veteran was previously represented in this appeal by a private attorney who attempted to withdraw from representation in January 2019. At the time, the Board found the withdrawal to be improper as it occurred after certification to the Board. However, the Veteran filed a properly executed VA 21-22 post-remand from the Court, appointing a new attorney before the matter returned to the Board. 1. Entitlement to service connection for a lumbar spine disability, is remanded. The Veteran contends that his lumbar spine degenerative arthritis was incurred during active duty service. The Board previously found that the Veteran has a current diagnosis of lumbar spine osteoarthritis. See September 2012 VA examination. Thus, the first element of service connection was met. Additionally, second element which requires an in-service incurrence was also met. In the Veteran’s service treatment records (STRs), he reported back pain when he steps on his right foot. There was no radiation and no neurological symptoms. On examination, the Veteran had mild spasm of right paravertebral muscle and he was diagnosed with a strain. However, during separation in January 1968, the clinical evaluation showed the Veteran’s spine was normal. Conversely, on the self-assessment, the Veteran indicated that he had “recurrent back pain,” and the examiner remarked that the Veteran had back and knee trouble. Thus, as there was positive and negative evidence, the Board gave the benefit of the doubt to the Veteran, and does so once again. As for the last element of nexus, which is required to grant service connection, the JMPR noted that the September 2012 VA medical examination and March 2013 addendum are inadequate and improperly found that there was no nexus because the examiner noted that the Veteran did not report low back pain during the time of his injury and during separation. However, as the Board has noted, the Veteran reported recurrent back pain on a January 1968 self-assessment, as noted above. Furthermore, although the examiner acknowledged the Veteran’s contention regarding a parachuting accident, as well as a buddy statement from his friend L.M., the examiner based the negative rationale on which the Board had previously relied on the lack of documentation when the injury is claimed to have occurred. On remand, a new VA examination is needed. Where VA provides the Veteran with an examination in a service connection claim, the examination must be adequate. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). 2. Entitlement to service connection for right knee patellofemoral pain syndrome with degenerative arthritis, is remanded. 3. Entitlement to service connection for left knee patellofemoral pain syndrome with degenerative arthritis, is remanded. The Veteran contends that his bilateral knee patellofemoral pain syndrome (PFPS) and degenerative arthritis of the left knee was incurred during service. The Board previously found that the Veteran has a current diagnosis for right knee patellofemoral pain syndrome and left knee patellofemoral pain syndrome with degenerative arthritis. See March 2018 VA examination, meeting the first element of service connection. Additionally, second element which requires an in-service incurrence was also found to be present. Considering the Veteran’s separation document in January 1968, clinical evaluation showed his lower extremities were normal. However, on the self-assessment the Veteran indicated that he had “trick or locked knee,” and the examiner remarked that the Veteran had back and knee trouble. Thus, as there was positive and negative evidence, the Board gave the benefit of the doubt to the Veteran, and does so once again. As for the last element of nexus, which is required to grant service connection, the JMPR noted that the Board erred in relying on the March 2018 examiner’s opinion in denying the issue because the March 2018 examiner’s rationale stated that there is no documented evidence of bilateral knee condition noted in the service treatment records (STR), and that there is no chronicity of care. The examiner issued a negative opinion that the Veteran’s bilateral knee diagnosis was less likely than not incurred in, or caused by the parachute jumps during service. The parties agreed in the JMPR that the examiner’s rationale was inadequate because, although the examiner noted that Veteran reported a tricked or locked knee on discharge, her rationale did not explain whether these symptoms are related to Veteran’s current bilateral knee disability. The examiner also based her rationale on a lack of documentation of a bilateral knee condition during service and the lack of chronicity of care, and failed to explain whether current symptoms were not due to in-service parachuting jumps. Where VA provides the Veteran with an examination in a service connection claim, the examination must be adequate. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Accordingly, the matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination for his bilateral knee and back conditions. The examiner must review the claims file, including a copy of this Remand, as well as the JMPR. If a diagnosis cannot be provided but the Veteran’s condition manifests in symptoms that cause functional impairment, then the examiner should consider them a “disability” for the purpose of providing the requested opinion(s) below. The examiner is asked to provide a response to the following: a. Is the Veteran’s right knee condition at least as likely as not related to service, including the Veteran’s contention that his injury occurred during parachuting jumps? b. Is the Veteran’s left knee condition at least as likely as not related to service, including the Veteran’s contention that his injury occurred during parachuting jumps? c. Is it at least as likely as not that the Veteran’s degenerative arthritis of the knee(s) (1) began during active service, (2) manifested within one year after discharge from service, or (3) was noted during service with continuity of the same symptomatology since service, to include due to possible injury caused during parachuting jumps? 2. The examiner is asked to provide a response to the following in regard to the Veteran’s back condition: a. Is the Veteran’s back condition at least as likely as not related to service, including claimed injury during parachuting jumps? b. Is it at least as likely as not that the back osteoarthritis (1) began during active service, (2) manifested within one year after discharge from service, or (3) was noted during service with continuity of the same symptomatology since service, to include due to possible injury caused during parachuting jumps? Provide a rationale to support the opinion(s) In providing the requested opinion, consider the Veteran’s description of his in-service injury and symptoms as well as his post-service symptoms. 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 his current disability, this should be noted. Stated another way, do the Veteran’s reports about his symptoms align with how the currently diagnosed disability is known to develop or are the Veteran’s reports generally inconsistent with medical knowledge or implausible? 3. After accomplishing any additional development deemed appropriate, readjudicate the claims on appeal. If the benefit sought in connection with the claims remain denied, the Veteran and his attorney should be provided with a supplemental statement of the case (SSOC) and given the opportunity to respond and appropriate period should be allowed before the record is returned to the Board. KRISTI L. GUNN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Khan, Associate 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.