Citation Nr: 21025032 Decision Date: 04/27/21 Archive Date: 04/27/21 DOCKET NO. 18-42 677A DATE: April 27, 2021 REMANDED Service connection for a back disability is remanded. Service connection for right knee strain (right knee disability) is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from June 1975 to January 1978, from January 1978 to January 1981, from July 2008 to February 2009, and from March 1, 2009 to March 14, 2009. The Veteran’s claim was originally denied in a December 2009 rating decision issued by a Department of Veterans Affairs Regional Office (RO). The claim was readjudicated in January 2010, at which point, the RO continued the previous denial. In April 2019, the Board of Veterans’ Appeals (Board) reopened the Veteran’s right knee disability claim, remanding it for further adjudication. The Board also remanded the Veteran’s claim for entitlement to service connection for lumbosacral spine degenerative disc disease (back disability). 1. Entitlement to service connection for a back disability is remanded. Although the Board regrets the additional delay, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran’s claim. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. The Veteran contends that his back disability is related to his military service. While stationed in Germany, he was involved in a motor vehicle accident. Another accident is claimed to have taken place in 1978 or 1979. He has referenced medical treatment for his back pain from 1976 to 1981. VA treatment records from that time were requested but have not been included. The Board also notes that the record indicates that the Veteran’s service treatment records (STRs) were ordered in January 2020. A full copy of those records has yet to be obtained. 38 C.F.R. § 3.159(c)(2). A VA examiner issued a December 2019 opinion addressing the issues of onset, etiology, and aggravation. Unfortunately, the basis of her opinion was “a lack of adequate medical evidence to support the Veteran’s claim.” A remand of this matter is required. There has been a duty-to-assist error on behalf of VA. Because the agency of original jurisdiction (AOJ) has not fulfilled its obligation to obtain outstanding STRs, the conclusions of the December 2019 VA examiner lack probative value. Outstanding treatment records from the Veteran’s many tours of duty must be sought. An addendum medical opinion must be issued. Furthermore, the record reflects that VA-generated evidence has been added to the claims file since the claim was last adjudicated in a July 2020 Supplemental Statement of the Case (SSOC). In this regard, numerous VA treatment records, dated through December 2020, were added to the claims file after the SSOC. An updated SSOC was not issued. While 38 U.S.C. § 7105(e) provides an automatic waiver of initial review by the agency of original jurisdiction (AOJ) if a Veteran submits evidence to the AOJ or the Board, this provision does not apply to evidence added to the file by VA, such as VA treatment records. 38 U.S.C. § 7105(e). A remand is required because the AOJ must consider the new evidence. 2. Entitlement to service connection for right knee disability is remanded. The Veteran contends that his right knee disability was incurred during active military service. Alternatively, he asserts that his right knee disability is proximately due to, or aggravated by, his service-connected left knee and hip disabilities. The Veteran is currently service connected, in pertinent part, for limited flexion of the left knee, left hip strain with limitation of extension, left hip strain with impairment of the thigh, and left hip strain with limitation of flexion. In April 2019, the Board remanded the issue of service connection for a right knee disability. The Board reopened the claim based upon examinations that were added to the record; at the same time, it found that the examinations were inadequate in considering the entirety of the Veteran’s contentions. The Veteran had alleged that his right knee disability was directly related to a motor vehicle accident that took place during his active duty service. Therefore, the Board remanded the Veteran’s claim for an adequate medical opinion addressing direct service connection or service connection on a secondary basis (i.e., aggravated through his service-connected left hip, left knee, and left thigh disabilities). The Veteran underwent a VA knee and lower leg examination in August 2019. The VA examiner opined that there had been a worsening of the Veteran’s service-connected symptoms; however, she declined to offer any additional diagnosis about his right knee disability symptoms. At the same time, she indicated that there was objective evidence of pain when the right knee was used in non-weight bearing. There was evidence of pain, weakness, fatigability, or incoordination that significantly limited functional ability with flare-ups; the right knee also demonstrated significant functional impairment—during initial range of motion testing and during flare-ups. The VA examiner also indicated a reduction in muscle strength, which she determined to be unrelated to the Veteran’s left knee disability. She indicated that the Veteran’s right knee disability limited his ability to kneel, put on his socks and shoes, or pick up items. The Board finds the VA examiner failed to explain what was wrong with the Veteran’s right knee. She offered no new diagnosis, and she failed to review the Veteran’s medical treatment records. Without question, such examination and opinion are inadequate. The examiner also omitted any discussion of the Veteran’s knee during her August 2019 examination of his left hip. In December 2019, the Veteran underwent another VA examination. While the examiner discussed questions of onset and etiology, she did so without a proper review of the Veteran’s service treatment records. At the time of the examination, those files had not been received. The Board also reiterates that a full copy of the Veteran’s STRs has yet to be obtained. Therefore, the matter must be remanded for a duty-to-assist error. 38 C.F.R. § 3.159(c)(2). Furthermore, as indicated above, VA-generated evidence has been added to the claims file since the claim was last adjudicated in a July 2020 SSOC. In this regard, numerous VA treatment records, dated through December 2020, were added to the claims file after the SSOC. A new SSOC has not been issued. A remand is required for consideration of the new evidence. The matters are REMANDED for the following action: 1. Obtain the Veteran’s complete service treatment records. All efforts to obtain these records should be documented in the claims folder. If no additional records are available, and/or it is determined further efforts would be futile, a formal finding to this effect should be added to the claims folder. 2. Obtain copies of records pertaining to any relevant VA treatment the Veteran has received since the time that such records were last procured, following the procedures set forth in 38 C.F.R. § 3.159. The evidence obtained, if any, should be associated with the record. 3. After the foregoing development has been completed, arrange to have the Veteran scheduled for an examination of his thoracolumbar spine. The examiner who previously offered opinions in December 2019 (if available) should review the expanded record and provide a supplemental report addressing the following questions: (a.) Does the Veteran have any lumbosacral back disability? If so, is it at least as likely as not (i.e., is it 50 percent or more probable) that such disability is related to service? (b.) Does the Veteran have a disability of the right knee? If so, is it at least as likely as not (i.e., is it 50 percent or more probable) that such disability is related to service? (c.) If it is the examiner’s opinion that it is unlikely that a disability has been directly caused by military service, the examiner should offer a further opinion as to whether it is at least as likely as not that any diagnosed disability has been caused or aggravated by any of the Veteran’s other service-connected disabilities. A complete medical rationale for all opinions expressed must be provided. In this regard, the examiner should be careful to address both causation and aggravation, specifically and separately. (Continued on the next page)   4. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the issues remaining on appeal should be readjudicated based on the entirety of the evidence. If any benefit sought remains denied, the Veteran and his representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. John Kitlas Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board F. Lanton, 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.