Citation Nr: 21025778 Decision Date: 04/29/21 Archive Date: 04/29/21 DOCKET NO. 15-01 729 DATE: April 29, 2021 REMANDED The claim of entitlement to service connection for a back disability is remanded. The claim of entitlement to service connection for a neck disability is remanded. The claim of entitlement to service connection for a right knee disability is remanded. The claim of entitlement to service connection for a left knee disability is remanded. REASONS FOR REMAND The Veteran had honorable active duty service with the United States Navy from May 1966 to January 1970. The instant matter is on appeal from an April 2014 rating decision. In January 2018, the Veteran testified before the undersigned in a videoconference hearing. Due to a technical error, the initial portion of the proceedings was omitted from the transcript. In February 2021, the Veteran was advised of his right to a second hearing, but he did not respond within 30 days of the notification letter. As such, the Board finds that he waived his right to a second hearing, and adjudication may proceed on the merits. While initially characterized as claims to reopen previously denied disabilities, new and material evidence is not required to reopen a claim when, at any time after VA issues a decision on a claim, VA receives or associates with the claims file relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim. 38 C.F.R. § 3.156 (c) (1). New service department records not previously associated with the claims file prior to the July 2003 denial have been received. Thus, the claims will be reconsidered without requiring new and material evidence. 1. The claim of entitlement to service connection for a back disability is remanded. The Board sincerely regrets the additional delay, but remand is necessary in order to obtain a VA examination for the disabilities on appeal. Initially, the Veteran reported being in receipt of a total and permanent disability evaluation during his hearing before the undersigned. It is unclear whether this evaluation came from the Social Security Administration (SSA) but attempts to identify such records should be conducted on remand. The Veteran’s service treatment records reflect a right knee contusion in September 1968, which he attributed to an in-service motor vehicle accident. He received a limited profile for 30 days. His January 1970 separation examination only documents moderate impingement related to an old injury, but the text is not entirely legible. The physical examination did not note disabilities of the back, knees, or neck. In the hearing before the undersigned, the Veteran reported that he flew with pilots two or three days per week, sometimes daily. He reported experiencing “hard landings” in the aircraft. Personnel records do reflect flight training during service. He also reported receiving treatment for his disabilities promptly after discharge from service. The Veteran submitted a private opinion from his chiropractor, however, endorsing an etiological relationship between these disabilities on appeal and his active duty service. The chiropractor reported treating the Veteran shortly after military service, and intermittently over the years. The opinion related the Veteran’s claimed disabilities to his career of “hard landings” in aircraft. The opinion, however, then states that his disabilities were at least as likely as not aggravated by military service, but confirms that there were no preexisting conditions prior to enlistment. Unfortunately, the opinion is not sufficient to support a grant a service connection for these disabilities. The lay testimony, however, taken in conjunction with personnel records regarding flight training do provide at least an indication that these disabilities may be related to service such that a VA examination is warranted. The Board notes that the Veteran previously failed to report to a scheduled VA examination. The Veteran reported that he did not receive notice of the examination, and he is only in the country at the beginning of the month due to his primary residence being in Mexico. The Board finds that good cause has been shown for his failure to report. Accordingly, examinations addressing the etiology of the Veteran’s claimed disabilities on appeal should be obtained on remand. 2. The claim of entitlement to service connection for a neck disability is remanded. See argument in Remand Section 1. 3. The claim of entitlement to service connection for a right knee disability is remanded. See argument in Remand Section 1. 4. The claim of entitlement to service connection for a left knee disability is remanded. See argument in Remand Section 1. The matters are REMANDED for the following action: 1. Attempt to obtain the Veteran’s federal records from Social Security Administration. Document all requests for information as well as all responses in the claims file. 2. Obtain any relevant, outstanding VA treatment records that are not already associated with the claims file. If no records are available, the claims folder must indicate this fact and the Veteran should be notified in accordance with 38 C.F.R. § 3.159 (e). All attempts to contact the Veteran should be documented in the record. 3. Contact the Veteran and the representative of record in order to identify any outstanding non-VA treatment records regarding the issues on appeal, to include referenced chiropractic records. If non-VA providers are identified, obtain releases for those records. Make all reasonable attempts to obtain the non-VA treatment records and associate them with the claims file. If such records cannot be obtained, inform the Veteran and the representative of record, and afford an opportunity to provide these outstanding records. 4. Once the aforementioned evidentiary development is complete, schedule the Veteran for a VA examination to assess the nature and etiology of his claimed bilateral knee disability. The examiner must review the entire claims file, including a copy of this remand. The examiner must consider the Veteran’s lay reports of observable symptomatology. After a thorough review of the record is complete, the examiner must respond to the following: (a.) List any and all disabilities of the knees with which the Veteran is presently diagnosed. (b.) For each identified disability, opine as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s identified disability had its onset during active duty service, is related to an incident of service, or began within one year after discharge from active service. Please specifically address the Veteran’s reports of “hard landings” during service, as well as the motor vehicle accident. The examination report should specifically state that a review of the record was conducted. The examiner should provide a complete rationale for all opinions provided. If an opinion cannot be provided without to resorting to mere speculation, the examiner should identify all medical and lay evidence considered in this conclusion, fully explain why this is the case and identify what additional evidence (if any) would allow for a more definitive opinion. 5. Once the aforementioned evidentiary development is complete, schedule the Veteran for a VA examination to assess the nature and etiology of his claimed back and neck disabilities. The examiner must review the entire claims file, including a copy of this remand. The examiner must consider the Veteran’s lay reports of observable symptomatology. After a thorough review of the record is complete, the examiner must respond to the following: (a.) List any and all disabilities of the back and neck with which the Veteran is presently diagnosed. (b.) For each identified disability, opine as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s identified disability had its onset during active duty service, is related to an incident of service, or began within one year after discharge from active service. Please specifically address the Veteran’s reports of “hard landings” during service, as well as the motor vehicle accident. (c.) If not, is it at least as likely as not that the Veteran’s identified disability was caused by a knee disability? (d.) Is it at least as likely as not that the Veteran’s identified disability was aggravated (any incremental increase in disability or any additional impairment of earning capacity regardless of permanence) by a knee disability? The examination report should specifically state that a review of the record was conducted. The examiner should provide a complete rationale for all opinions provided. If an opinion cannot be provided without to resorting to mere speculation, the examiner should identify all medical and lay evidence considered in this conclusion, fully explain why this is the case and identify what additional evidence (if any) would allow for a more definitive opinion. 6. Following completion of the foregoing, the AOJ should review the record and readjudicate the claims on appeal. If any remain denied, the AOJ should issue an appropriate supplemental SOC, afford the Veteran and his representative an opportunity to respond, and return the case to the Board. B. MULLINS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board H. Fisher, 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.