Citation Nr: 21015851 Decision Date: 03/18/21 Archive Date: 03/18/21 DOCKET NO. 17-42 491 DATE: March 18, 2021 REMANDED Entitlement to service connection for a neck disorder is remanded. Entitlement to service connection for a left knee disorder is remanded. REASONS FOR REMAND The Veteran served honorably in the United States Air Force from March 1985 to July 1990. These issues come before the Board of Veterans’ Appeals (Board) on appeal from an October 2016 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In January 2021, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. The transcript is of record. 1. Entitlement to service connection for a neck disorder. The Veteran contends that his neck disorder is the result of military service. He testified at his Board hearing that he injured his neck pulling a refueling hose while stationed in Louisiana and has experienced continuous pain complaints since service. He also testified that he had no prior or subsequent injuries to his neck. A review of the service treatment records (STRs) show documented neck pain complaints and treatment. However, clinical examination of the neck was normal on entrance and during service. A review of the post-service treatment records show complaints and treatment for neck pain; however, none of the Veteran’s treating physicians have given a positive opinion that the neck disorder is due to military service. A VA neck examination was conducted in February 2016. The Veteran was diagnosed with degenerative disc disease of the cervical spine. The examiner found that the claimed condition was less likely than not incurred in or caused by the claimed in-service injury event, or illness. The examiner noted that the Veteran’s STR were not consistent for chronic or recurrent neck pain with no documented post service pain complaints until 2009/2010. An addendum VA medical opinion was issued in September 2016. The examiner gave a negative opinion that the neck disorder was the result of military service. The examiner noted that while the STRs noted neck pain, there were no records between 1989 and 2006 which indicated complaints of ongoing symptoms. No other opinions or rationale were provided. The VA has a duty to assist veterans in developing their claims for benefits. 38 C.F.R. § 3.159. The duty to assist including providing a medical examination when necessary to decide a claim. 38 C.F.R. § 3.159 (c)(4). When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board finds the VA opinions are inadequate because they rely on a lack of medical evidence. Lack of evidence cannot be treated as substantive negative evidence. In other words, reliance on the lack of medical evidence, especially without consideration of lay statements, is an inadequate rationale. The United States Court of Appeals for Veterans’ Claims (the Court) has held that the mere absence of evidence does not equate to unfavorable evidence. See Forshey v. Principi, 284 F.3d 1335, 1358 (Fed. Cir. 2002) (en banc) (cautioning that negative evidence, meaning actual evidence weighing against a party, must not be equated with the absence of substantive evidence); see also Dalton v. Nicholson, 21 Vet. App. 23, 39-40 (2007) (holding that an examination must consider lay evidence of in-service incurrence or continuity of symptomatology since service). The examiner failed to address or consider the Veteran’s lay statements regarding the in-service injury and subsequent symptoms. He is competent to report on neck problems during service through the present date. Thus, the Board finds that a remand is necessary for an addendum VA medical opinion that addresses all the evidence of record, including the Veteran’s lay statements. 2. Entitlement to service connection for a left knee disorder. The Veteran contends that his left knee disorder is the result of military service. He testified at his Board hearing that he injured his left knee when he struck the pintle hook on the rear of a vehicle while conducting an on-base exercise. He also testified that he has experienced continuous pain complaints since service, but had no prior or subsequent injuries to his left knee. A review of the STRs show documented left knee pain complaints and treatment. However, clinical examination for his left knee was normal on entrance and during service. A review of the post-service treatment records note complaints and treatment for knee pain; however, none of the Veteran’s treating physicians have given a positive opinion that his left knee disorder was due to military service. The Veteran underwent a VA knee examination in February 2016. He was diagnosed with left knee degenerative arthritis. The examiner found that the claimed condition was less likely than not incurred in or caused by the claimed in-service injury event, or illness. The examiner noted that the STRs were not consistent for chronic, recurrent knee pain with no documented post-service pain complaints to support an ongoing condition that began in the military. An addendum VA medical opinion was issued in September 2016. The examiner gave a negative opinion that the left knee disorder was the result of military service. The examiner noted that there were no medical records indicating in-service chronic knee complaints. She then noted that while there were complaints of in-service knee pain, there was no documented chronic knee condition until 2016. No other opinions or rationale were provided. The Board finds the opinions are inadequate for adjudicative purposes because they rely on a lack of medical evidence. Lack of evidence cannot be treated as substantive negative evidence. See Forshey v. Principi, 284 F.3d 1335, 1358 (Fed. Cir. 2002). The examiner failed to address or consider the Veteran’s lay statements regarding the in-service injury and subsequent symptoms. He is competent to report on knee problems during service through the present date. Thus, the Board finds that a remand is necessary for an addendum opinion to address all of the pertinent evidence of record, including the Veteran’s lay statements. The matters are REMANDED for the following action: 1. In remanding this case, the Board makes no credibility determination, expressed or implied, at this juncture. 2. Obtain an addendum medical opinion by a suitably qualified health care professional to determine the nature and etiology of the claimed neck condition. An examination (or a telehealth interview if an in-person examination is not feasible) of the Veteran should only be scheduled if the examiner determines one is necessary to obtain the requested opinions. After review of the claims file, and a new examination if necessary, the examiner should respond to the following question: Whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran’s neck disorder manifested in or is otherwise related to service? The term “at least as likely as not” does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a certain conclusion is so evenly divided that it is as medically sound to find in favor of such a conclusion as it is to find against it. In rendering this opinion, the examiner is advised that the Veteran is competent to report his symptoms and history. Such reports must be acknowledged and considered in formulating any opinion. If the medical professional rejects the Veteran’s reports of medical history, he or she must provide an explanation for such rejection. The examiner must address and reconcile, to the extent possible, the medical opinion with the February 2016 and October 2016 VA examination reports. A complete rationale must be provided for all opinions presented. If the medical professional cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation for why an opinion cannot be rendered. In so doing, the medical professional shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). 3. Obtain an addendum opinion by a suitably qualified health care professional to determine the nature and etiology of the Veteran’s left knee condition. An examination (or a telehealth interview if an in-person examination is not feasible) of the Veteran should only be scheduled if the examiner determines one is necessary to obtain the requested opinions. After review of the claims file, and a new examination if necessary, the examiner should respond to the following question: Whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran’s left knee disorder manifested in or is otherwise related to service? The term “at least as likely as not” does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a certain conclusion is so evenly divided that it is as medically sound to find in favor of such a conclusion as it is to find against it. In rendering this opinion, the examiner is advised that the Veteran is competent to report his symptoms and history. Such reports must be acknowledged and considered in formulating any opinion. If the medical professional rejects the Veteran’s reports, he or she must provide an explanation for such rejection. The examiner is not to improperly discount the Veteran’s lay statements or rely solely on an absence of medical evidence in the record to support his or her conclusion. The examiner must address and reconcile, to the extent possible, the medical opinion with the February 2016 and October 2016 VA examination reports. (Continued on the next page)   A complete rationale must be provided for all opinions presented. If the medical professional cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation for why an opinion cannot be rendered. In so doing, the medical professional shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). G. A. WASIK Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J.T. Massey, 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.