Citation Nr: 21023828 Decision Date: 04/21/21 Archive Date: 04/21/21 DOCKET NO. 14-42 788 DATE: April 21, 2021 REMANDED Entitlement to service connection for a thoracolumbar spine disability is remanded. Entitlement to service connection for a left knee disability is remanded. Entitlement to service connection for a left hip disability is remanded. Entitlement to service connection for a cervical spine disability is remanded. REASONS FOR REMAND The Veteran served on active duty from March 1980 to September 1987. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a March 2014 rating decision by the Department of Veterans Affairs (VA). This case was remanded in June 2018 for further development. In April 2018, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge; a transcript of that hearing is of record. Since the Board’s remand, the issue of service connection for an acquired psychiatric disability was granted in a March 2019 rating decision. Because that decision is considered a full grant of the benefit sought, that issue is no longer on appeal. After reviewing the evidence of record, and in light of Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009), the Board has recharacterized the issue of service connection for a low back disability to encompass any thoracolumbar spine disability. All issues. The Veteran reported that he was hospitalized for injuries related to his back and hip at Naval Support Facility Diego Garcia, see August 2013 correspondence, and at Naval Hospital Guam. See April 2018 Board hearing. While the Veteran’s service treatment records (STRs) cannot be located, in-patient hospital records are sometimes separate from STRs. Thus, remand is necessary to attempt to obtain hospital records from Diego Garcia and Guam. In November 2012, the Veteran submitted a private medical release for Sharp Rees-Stealy Medical Group. Although he later submitted medical records from a location at Sharp Rees, see August 2013 correspondence, it does not appear the Agency of Original Jurisdiction (AOJ) ever attempted to obtain records pursuant to the medical release, nor was the Veteran notified that such records were not sought. It is not clear that the records submitted by the Veteran are the complete records available. Thus, on remand, the AOJ must notify the Veteran that records were not obtained and provide him the opportunity to submit a new medical release. The Veteran has consistently reported that he fell from a pole during service and injured his back and hip. See, e.g., August 2013 correspondence. He later reported that he injured his neck at that time. See April 2018 Board hearing. He has variously stated that he injured his knee during the accident, id., but also that his knee hurt before the accident due to heavy lifting, squatting, lunging, and running and that such injuries caused his knee to give out, causing the accident when he fell. See, e.g., April 2018 correspondence. He submitted statements from other soldiers who reported that the Veteran had back and knee pain during service. See April 2018 and May 2018 statements. The Veteran also reported falling off his bike and injuring his back and hip during service, see May 2018 correspondence, and injuring his knees in a plane crash. See, e.g., April 2018 Board hearing. Friends corroborated the bike injury and plane crash. See April 2018 and May 2018 statements. The Veteran underwent VA examinations for his back, neck, knee, and hip disabilities. The examiner diagnosed thoracic and lumbar spine spondylosis with a compression fracture in the thoracic spine and degenerative disc disease in the lumbar spine, left knee joint osteoarthritis, hip osteoarthritis, and cervical spine spondylosis with degenerative disc disease. The examiner opined that all of these disabilities were less likely than not related to service, but each opinion relied on the absence of medical evidence in STRs and records immediately after service. Because the examiner did not consider the Veteran’s report of injuries during service, corroborated by friends, and the report of pain since service, see April 2018 Board hearing, the opinions are inadequate and remand for new opinions is necessary. The Board notes that the Veteran frequently reported that he injured his back, knee, and hip during service, but, despite frequent correspondence, he only first reported that he injured his neck during service during his April 2018 Board hearing. However, the Board previously conceded all of the Veteran’s injuries during service, see June 2018 Board remand, and will thus proceed with the finding that the Veteran injured his neck during service. The matters are REMANDED for the following action: 1. The AOJ should obtain in-patient hospital records from Naval Support Facility Diego Garcia and Naval Hospital Guam during the Veteran’s military service. Because such records are presumably in the custody of a Federal department or agency, the amount of effort needed to be expended in obtaining these records is governed by 38 C.F.R. § 3.159(c)(2). If such records are not received pursuant to the AOJ’s request, the Veteran should be so notified and the AOJ’s efforts should be documented in the claim file. 2. The AOJ should notify the Veteran that private medical records from Sharp Rees-Stealy Medical Group were not sought pursuant to the November 2012 medical release provided. 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. The AOJ should obtain copies of VA treatment records from July 2019 to the present. 4. After the development in the first three directives is completed, the AOJ should arrange for a VA medical opinion, with examination or telehealth interview of the Veteran only if deemed necessary by a medical professional, to determine the nature and likely cause of any thoracolumbar spine disability. The examiner should review the claim file (including this remand) and note such review was conducted. Based on review of the record, the examiner should provide an opinion with detailed rationale that responds to the following: For the Veteran’s thoracolumbar disabilities, is it at least as likely as not (50% or greater probability) that such disabilities were either incurred in or otherwise related to his military service? Please explain why. The examiner may not rely solely on the absence of medical evidence during and immediately after service. The examiner must consider the Veteran’s reported injuries during service, corroborated by friends, and his report of pain since service. 5. After the development in the first three directives is completed, the AOJ should arrange for a VA medical opinion, with examination or telehealth interview of the Veteran only if deemed necessary by a medical professional, to determine the nature and likely cause of any left knee disability. The examiner should review the claim file (including this remand) and note such review was conducted. Based on review of the record, the examiner should provide an opinion with detailed rationale that responds to the following: For the Veteran’s left knee disability, is it at least as likely as not (50% or greater probability) that such disability was either incurred in or otherwise related to his military service? Please explain why. The examiner may not rely solely on the absence of medical evidence during and immediately after service. The examiner must consider the Veteran’s reported injuries during service, corroborated by friends, and his report of pain since service. 6. After the development in the first three directives is completed, the AOJ should arrange for a VA medical opinion, with examination or telehealth interview of the Veteran only if deemed necessary by a medical professional, to determine the nature and likely cause of any left hip disability. The examiner should review the claim file (including this remand) and note such review was conducted. Based on review of the record, the examiner should provide an opinion with detailed rationale that responds to the following: For the Veteran’s left hip disability, is it at least as likely as not (50% or greater probability) that such disability was either incurred in or otherwise related to his military service? Please explain why. The examiner may not rely on the absence of medical evidence during and immediately after service. The examiner must consider the Veteran’s reported injuries during service, corroborated by friends, and his report of pain since service. 7. After the development in the first three directives is completed, the AOJ should arrange for a VA medical opinion, with examination or telehealth interview of the Veteran only if deemed necessary by a medical professional, to determine the nature and likely cause of any cervical spine disability. The examiner should review the claim file (including this remand) and note such review was conducted. Based on review of the record, the examiner should provide an opinion with detailed rationale that responds to the following: For the Veteran’s cervical spine disability, 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 on the absence of medical evidence during and immediately after service. The examiner must consider the Veteran’s reported injuries during service and his report of pain since service. 8. 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.