Citation Nr: 21026352 Decision Date: 04/30/21 Archive Date: 04/30/21 DOCKET NO. 17-18 522 DATE: April 30, 2021 REMANDED Entitlement to service connection for a left knee disability is remanded. Entitlement to service connection for a right knee disability is remanded. Entitlement to service connection for a respiratory disability is remanded. Entitlement to an initial compensable rating for residual scars status-post lancing of the right thigh is remanded. Entitlement to an initial compensable rating for residual scar status-post lancing of the left posterior trunk is remanded. Entitlement to service connection for scars status-post lancing of the arms, legs, back, neck, left hand, and buttocks is remanded. Entitlement to service connection for right arm burn and scarring is remanded. Entitlement to an effective date prior to July 23, 2014 for the award of service connection for residual scars status post lancing right thigh scar is remanded. Entitlement to an effective date prior to July 23, 2014 for the award of service connection for residual scar status post lancing left posterior trunk is remanded. REASONS FOR REMAND The Veteran served on active duty from September 1968 to July 1970. Service in the Republic of Vietnam is indicated by the record. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from rating decisions dated February 2014 and February 2015 of the Department of Veterans Affairs (VA) Regional Office (RO). The February 2014 rating decision denied entitlement to service connection for a respiratory disability and disabilities of the right and left knees. The Veteran filed a notice of disagreement (NOD) in July 2014 and a statement of the case (SOC) was issued in March 2017. He perfected a timely appeal in April 2017. The February 2015 rating decision granted service connection for residuals scars status-post lancing of the right thigh and a residual scar status-post lancing of the left posterior trunk; noncompensable ratings were assigned to each from July 23, 2014. The rating decision also denied service connection for scars status-post lancing of the arms, legs, back, neck, left hand, and buttocks, as well as right arm burn and scarring. In March 2015, the Veteran, through his attorney, filed a statement in which he expressed disagreement as to the assigned ratings and effective dates; he also expressed disagreement with the denial of service connection for scars status-post lancing of the arms, legs, back, neck, left hand, and buttocks, as well as right arm burn and scarring. The Board notes that, as of the date the statement was filed (March 2, 2015), a Notice of Disagreement (NOD) consisted of a written communication expressing disagreement with a decision. 38 C.F.R. § 20.201 (in effect prior to March 24, 2015). As such, the March 2015 statement is a timely NOD as to the identified claims; however, the AOJ has not issued an SOC as to this claim. These matters will therefore be additionally addressed in the Remand portion below. In July 2020, the Veteran presented sworn testimony during a virtual hearing, which was chaired by the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the Veteran’s VA claims file. The Veteran's case was certified to the Board in May 2018. In October 2019, the Veteran's attorney submitted a letter purporting to withdraw as the Veteran's representative. Pursuant to 38 C.F.R. § 20.608(b)(2), after an appeal has been certified to the Board, an attorney may not withdraw services as a representative in the appeal unless good cause is shown on motion, and motion must be in writing and must comply with the criteria set forth in 38 C.F.R. § 20.608(b)(2). The October 2019 submission does not comply with the stated provisions for a post-certification withdrawal. However, in a June 2020 statement as well as at the July 2020 Board hearing, the Veteran explained that his attorney was unable to represent him due to illness. The Veteran elected to proceed pro se in this matter. At the July 2020 Board hearing, the Veteran indicated he believed the matter of entitlement to back pay should be on appeal. The Board notes that the Veteran filed a November 2018 NOD as to the matter of “back pay;” however, in a September 2019 letter, the RO informed the Veteran that the NOD was improper and instructed that he file a formal claim, if he intended to pursue the matter. As such, that matter is not currently before the Board. 1. Entitlement to service connection for a left knee disability is remanded. 2. Entitlement to service connection for a right knee disability is remanded. The Veteran asserts entitlement to service connection for disabilities of the right and left knees, which he contends were incurred during his active duty service. Specifically, he testified that he injured his knees when he fell off of a truck while serving in the Republic of Vietnam. See the July 2020 Board hearing transcript, pgs. 3, 7. The Veteran’s service treatment records (STRs) document a fall from a truck in January 1970; however, no complaints concerning the knees were noted at that time. To this end, the Veteran has indicated that he did not report the particular fall from a truck in which he injured his knees. See the Veteran’s NOD dated July 2014. The Veteran testified that the knee pain, which began during his military service, has progressively worsened since that time. Id.; see also the July 2020 Board hearing transcript. The Board notes that the Veteran is competent to testify to observable symptoms such as knee pain. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). Post-service treatment records show that the Veteran was diagnosed with a torn medial meniscus of the right knee in April 1992. The treatment provider noted that the Veteran “sustained a knee injury some time ago and has had medial pain subsequently with intermittent symptoms.” See the private treatment records dated April 1992. Arthritis of the bilateral knees was documented in private treatment records dated December 2013. In January 2014, the Veteran underwent a right total knee replacement for a diagnosis of severe primary osteoarthritis. In support of his claims, the Veteran submitted a medical opinion from Dr. J.B. in which he noted the Veteran’s chronic right knee pain, status-post right knee replacement, history of right knee effusion, status-post bilateral knee arthroscopy (remote), bilateral knee varus deformities, bilateral knee osteoarthrosis, and right knee degenerative arthritis. Dr. J.B. opined it is more likely than not that there exists a nexus between the Veteran’s military service and his development of significant right knee pathology. Dr. J.B. did not provide an opinion as to the etiology of the Veteran’s left knee disability. The opinion provided by Dr. J.B. relied exclusively on the Veteran’s statements of causality and recitation of his medical history. He did not provide any additional rationale to support the conclusion rendered. See LeShore v. Brown, 8 Vet. App. 406, 409 (1995) (a bare transcription of a lay history is not transformed into competent medical evidence merely because the transcriber happens to be a medical professional). The Veteran has not been afforded a VA examination to address the diagnosis and etiology of his claimed right and left knee disabilities. Therefore, said claims must be remanded in order to afford the Veteran an appropriate VA examination with medical opinion to address these outstanding questions. Prior to arranging for the Veteran to undergo further VA examination, to ensure that all due process requirements are met, and that the record is complete, the AOJ should undertake appropriate action to obtain all pertinent, outstanding records. 3. Entitlement to service connection for a respiratory disability is remanded. The Veteran contends that he has a respiratory disability, which was incurred in his active military service. See July 2020 Board hearing transcript. Specifically, he has described exposure to dust and burn pits, as well as noxious fumes from military vehicles during his service in the Republic of Vietnam. Id.; see also the Veteran’s statement dated June 2020. The Board notes that in the April 1968 Report of Medical History at pre-induction, the Veteran reported sinusitis and ‘chronic or frequent colds.’ However, the April 1968 VA examiner did not diagnose any respiratory at enlistment. The Veteran’s STRs document complaints of productive cough in January 1970. STRs dated in February 1970 noted the Veteran’s report of cough with substernal tightness; he was diagnosed with possible early upper respiratory infection at that time. With respect to the Veteran’s contentions of exposure to burn pits, dust, and noxious fumes from military vehicles, his military occupational specialty (MOS) was automobile mechanic. Exposure to fumes from military vehicles is conceded as such exposure is consistent with the Veteran’s MOS. The Board additionally observes that the Veteran is competent to observe the burning of feces in open pits as such is observable with a layperson’s senses. See Layno v. Brown, 6 Vet. App. 465, 469-70 (1994) (holding that a lay witness is competent to testify to that which the witness has actually observed and is within the realm of his personal knowledge). Post-service treatment records dated in December 1999 noted the Veteran’s report of cough with difficulty breathing. A diagnosis of acute asthmatic bronchitis was indicated in February 2003. A diagnosis of chronic obstructive pulmonary disease (COPD) was noted in March 2013, January 2014, and July 2014. The Veteran submitted a December 2015 report from Dr. J.B. in which he noted diagnoses of chronic bronchitis, COPD, asthmatic bronchitis, history of status asthmaticus. Dr. J.B. opined it is more likely than not that there exists a nexus between the Veteran’s military service and his development of significant pulmonary pathology. Critically, the rationale provided by Dr. J.B. did not include analysis of the Veteran’s medical history, but merely conclusory statements concerning the general causality of COPD. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008) (the probative value of a medical opinion comes from when it is the factually accurate, fully articulated, and sound reasoning for the conclusion). The Veteran has not been afforded a VA examination to address the etiology of his claimed respiratory disability. Therefore, this claim must be remanded in order to afford the Veteran an appropriate VA examination with medical opinion to address this outstanding question. 4. Entitlement to an initial compensable rating for residuals scars status-post lancing of the right thigh is remanded. 4. Entitlement to an initial compensable rating for residual scar status-post lancing of the left posterior trunk is remanded. 5. Entitlement to service connection for scars status-post lancing of the arms, legs, back, neck, left hand, and buttocks is remanded. 6. Entitlement to service connection for right arm burn and scarring is remanded. 7. Entitlement to an effective date prior to July 23, 2014 for the award of service connection for residual scars status-post lancing of the right thigh scar is remanded. 8. Entitlement to an effective date prior to July 23, 2014 for the award of service connection for residual scar status-post lancing of the left posterior trunk is remanded. As described above, a February 2015 rating decision granted service connection for residuals scars status-post lancing of the right thigh and a residual scar status-post lancing of the left posterior trunk; noncompensable ratings were assigned to each from July 23, 2014. The rating decision also denied service connection for scars status-post lancing of the arms, legs, back, neck, left hand, and buttocks, as well as right arm burn and scarring. In March 2015, the Veteran, through his then-attorney, filed a statement in which he indicated that he was filing a NOD as to the assigned ratings and effective dates; he also expressed disagreement with the denial of service connection for scars status-post lancing of the arms, legs, back, neck, left hand, and buttocks, as well as right arm burn and scarring. The Board notes that, as of the date the statement was filed (March 2, 2015), an NOD consisted of a written communication expressing disagreement with a decision. 38 C.F.R. § 20.201 (in effect prior to March 24, 2015). As, the AOJ has not issued an SOC as to these claims, remand is therefore warranted for issuance of an SOC as to the issues of entitlement to compensable initial ratings for service-connected residuals scars status-post lancing of the right thigh and residual scar status-post lancing of the left posterior trunk, entitlement to an effective date prior to July 23, 2014 for the award of service connection for residual scars status-post lancing of the right thigh and residual scar status-post lancing of the left posterior trunk, as well as entitlement to service connection for scars status-post landing of the arms, legs, back, neck, left hand, and buttocks and service connection for right arm burn and scarring. See 38 C.F.R. § 19.9(c), codifying Manlincon v. West, 12 Vet. App. 238, 240-41 (1999). The matters are REMANDED for the following action: 1. Obtain all outstanding records of VA evaluation and/or treatment. Follow the procedures set forth in 38 C.F.R. § 3.159(c) with respect to requesting records from Federal facilities. All records/responses received should be associated with the claims file. 2. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any current right and left knee disability. The examiner is requested to review the claims file in its entirety including all service treatment records, VA, and private treatment records. (a). The examiner should identify any current right and left knee disability. (b). The examiner should then provide an opinion as to whether it is at least as likely as not that any diagnosed right and left disability, to include any pain causing impairment, began during active service or is related to an in-service injury, event, or disease. In addressing the above, the examiner must consider all pertinent in- and post-service evidence, including the Veteran’s lay assertions that he suffered from said disabilities during his active duty service that has continued to the present day. In this regard, the examiner should note that the absence of evidence of treatment for claimed disabilities in the Veteran’s service treatment records should not serve as the sole basis for a negative opinion. In providing the requested opinion, the examiner should consider the Veteran’s description of his in-service knee injury and symptoms as well as his post-service symptoms. If there is any medical reason to accept or reject the proposition that the Veteran’s reported injury and symptoms in service and thereafter represented the onset of his current disability, this should be noted. Stated another way, do the Veteran’s reports about his symptoms align with how the currently diagnosed disability is known to develop or are the Veteran’s reports generally inconsistent with medical knowledge or implausible? 3. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any current respiratory disability. The examiner is requested to review the claims file in its entirety including all service treatment records, VA, and private treatment records. (a). The examiner should identify any current respiratory disability. (b). The examiner should then provide an opinion as to whether it is at least as likely as not that any diagnosed respiratory disability, began during active service or is related to an in-service injury, event, or disease, to include the claimed exposure to burn pits, dust, and noxious fumes from military vehicles. In addressing the above, the examiner must consider all pertinent in- and post-service evidence, including the Veteran’s lay assertions that he suffered from said disabilities during his active duty service that has continued to the present day. In this regard, the examiner should note that the absence of evidence of treatment for claimed disabilities in the Veteran’s service treatment records should not serve as the sole basis for a negative opinion. In providing the requested opinion, the examiner should consider the Veteran’s description of his in-service symptoms as well as his post-service symptoms. If there is any medical reason to accept or reject the proposition that the Veteran’s reported symptoms in service and thereafter represented the onset of his current disability, this should be noted. Stated another way, do the Veteran’s reports about his symptoms align with how the currently diagnosed disability is known to develop or are the Veteran’s reports generally inconsistent with medical knowledge or implausible? 4. Separately, issue an SOC addressing the Veteran’s entitlement to compensable initial ratings for service-connected residuals scars status-post lancing of the right thigh and residual scar status-post lancing of the left posterior trunk, entitlement to an effective date prior to July 23, 2014 for the award of service connection for residual scars status-post lancing of the right thigh and residual scar status-post lancing of the left posterior trunk, as well as entitlement to service connection for scars status-post landing of the arms, legs, back, neck, left hand, and buttocks and service connection for right arm burn and scarring. In connection therewith, the Veteran should be provided with appropriate notice of his appellate rights. If, and only if, the Veteran perfects an appeal should that matter be returned to the Board. K. Conner Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. K. Buckley, 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.