Citation Nr: 21021340 Decision Date: 04/12/21 Archive Date: 04/12/21 DOCKET NO. 17-29 324 DATE: April 12, 2021 ORDER Entitlement to service connection for degenerative arthritis of the cervical spine is granted. Entitlement to service connection for posttraumatic stress disorder (PTSD) is dismissed. REMANDED Entitlement to service connection for a right knee disability is remanded. Entitlement to service connection for a left knee disability is remanded. FINDINGS OF FACT 1. The Veteran’s degenerative arthritis of the cervical spine is related to the Veteran’s in-service motor vehicle crashes that occurred in March 1989 and April 1990. 2. In January 2021, prior to the promulgation of a decision in the appeal, the Board received notification from the Veteran, through his authorized representative, that a withdrawal of his appeal pertaining to his claim for service connection for PTSD is requested. CONCLUSIONS OF LAW 1. The criteria for service connection for degenerative arthritis of the cervical spine are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for dismissal of entitlement to service connection for PTSD have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Navy from November 1984 until June 1992. In August 2019, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript of that hearing is of record. This appeal was previously before the Board November 2019 when it was remanded for further development. Following the Board’s remand, the agency of original jurisdiction (AOJ) granted service connection for a back disability and related lower extremity radiculopathy. This represents a full grant of the benefit sought for the Veteran’s claim of service connection for a back disability, and that issue is no longer before the Board. There has been substantial compliance with the remand in connection with claims decided here and the Board will proceed with adjudication. Stegall v. West, 11 Vet. App. 268 (1998). 1. Entitlement to service connection for a neck disability The Veteran asserts that he has a neck disability that is etiologically related to service. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110. Generally, the evidence must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004).  The Board concludes the Veteran has a current diagnosis of degenerative arthritis of the cervical spine that is causally related to service. The medical examination conducted at the time the Veteran entered service is silent for a neck defect. His service treatment records contain numerous documented reports of neck injuries and pain during service as a result of a motor vehicle crash. The Veteran testified before the Board that was involved in two motor vehicle crashes while in service, and that he experienced neck injuries as a result. It was also the Veteran’s sworn testimony that he has experienced continued neck symptomatology since service. The Board remanded the claim in November 2019 because a prior VA examination was inadequate. A March 2020 VA neck examination conducted pursuant to the remand directives included a diagnosed of degenerative arthritis of the spine and a negative nexus opinion. The Board affords that opinion little probative value because the examiner did not include an adequate rationale. The examiner impermissibly relied on an absence of continuity of care as affirmative negative evidence. In January 2021, the Veteran’s representative submitted an October 2020 opinion prepared by Dr. D.A., M.D., J.D. Dr. D.A. said the opinion was based on his review of the Veteran’s entire claims file and the opinion provider’s own expertise. Dr. D.A. provided a positive nexus opinion and supported it by citing to multiple medical and scientific articles regarding arthritis and stating, “the current medical literature supports such a nexus, as it has established that traumatic injuries often set off immunological reactions resulting in the onset of osteoarthritis. The Veteran reports no intervening injuries to the neck or back from the time he left active duty to present that would otherwise explain his current condition.” Because the private medical opinion is based upon a review of the record and the opinion provider’s own expertise and reaches clear conclusions supported by scientific and clinical data, the Board finds it to be substantially probative. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The October 2020 private medical opinion is the most probative evidence of record. The March 2020 medical opinion is inadequate and nonprobative. The Veteran’s degenerative arthritis of the cervical spine is related to his active service. Service connection for degenerative arthritis of the cervical spine is granted. 2. Entitlement to service connection for PTSD An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 19.55. Withdrawal may be made by the appellant or by his or her authorized representative. Id. In January 2021, the Veteran’s authorized representative filed a written brief and specifically stated “…the issue of PTSD is being withdrawn from appeal.” The Board concludes the Veteran has withdrawn his appeal with respect to the issue of entitlement to service connection for PTSD, and there are no remaining issues of fact or law related to this issue for appellate consideration. Accordingly, the Board does not have jurisdiction to review the appeal, and it is dismissed. REASONS FOR REMAND 1. Entitlement to service connection for a right knee disability is remanded. 2. Entitlement to service connection for a left knee disability is remanded. The Veteran asserts that he has a right and left knee disability and that both disabilities are etiologically related to his active service. The claims must be remanded again because the medical opinions obtained pursuant to the prior remand are inadequate. Stegall, 11 Vet. App. at 271. In providing negative nexus opinions, the provider impermissibly relied upon an absence of chronicity of care as affirmative negative evidence. Additionally, the opinion provider failed to consider the Veteran’s sworn testimony that he experienced issues with his knees at separation and that he has experienced continued symptoms since separation. Since the prior remand, service connection was granted for a back disability. In their brief, the Veteran’s representative raised the theory of secondary service connection for the knee disabilities. The opinion on remand must address that. After the prior remand, the AOJ attempted to solicit information from the Veteran as to private treatment providers. It is unclear whether the Veteran’s response was sufficient to enable the AOJ to obtain records. Since the claim is being remanded again, the Veteran should be afforded an opportunity to submit that information. The matters are REMANDED for the following action: 1. Obtain the Veteran’s VA treatment records for the period from February 2020 to the present. 2. Ask the Veteran to complete a VA Form 21-4142 for any private treatment provider who has treated his right or left knee condition since service. Make two requests for the authorized records from identified providers unless it is clear after the first request that a second request would be futile. 3. After completion of the foregoing, schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any right and left knee disability. The examiner should be provided with all pertinent documents, including a copy of this remand. Following a review of the record and examination of the Veteran, the examiner is asked to answer the following: (a.) Identify all diagnoses related to the Veteran’s claimed right knee and left knee. (b.) For each diagnosis, is it at least as likely as not (50 percent or greater probability) that the diagnosed condition had its onset in or is otherwise etiologically related to the Veteran’s active service, to include the reported motor vehicle accidents in March 1989 and April 1990 or the reported wear and tear experienced as a submarine tender? (c.) For each diagnosis, is it at least as likely as not (50 percent or greater probability) that the diagnosed condition is (i) proximately due to or (ii) aggravated by (defined here as any increase in disability) the Veteran’s service-connected back or neck disabilities? The examiner is notified that the Veteran is competent to report the date of onset of symptoms and to describe the symptoms he experiences and has experienced. All proffered opinions must be supported by complete rationale. If the examiner cannot provide a requested opinion without resort to speculation, they should say why. 4. Confirm that the VA medical opinion provided comports with this remand, specifically that the standard for the secondary aggravation opinion is any increase in disability, not the standard of beyond the natural progression as noted on the examination form itself. If not, get an addendum. M.E. Larkin Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M.D. Collins, 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.