Citation Nr: 21028317 Decision Date: 05/11/21 Archive Date: 05/11/21 DOCKET NO. 16-36 584 DATE: May 11, 2021 REMANDED Entitlement to service connection for a back disability is remanded. Entitlement to service connection for a right knee disability is remanded. REASONS FOR REMAND The Veteran had active service from August 1985 to May 1994. In October 2018, the Board remanded the issues currently on appeal to the agency of original jurisdiction (AOJ) for additional development. After taking further action, the AOJ confirmed and continued the prior denials and returned the case to the Board. See December 2020 supplemental statement of the case. After the October 2018 Board remand, the AOJ granted service connection for the Veteran's left knee disability in December 2020. As such, the left knee disability claim is no longer on appeal. The Board has recharacterized the issue to reflect this change. 1. Entitlement to service connection for a back disability is remanded. 2. Entitlement to service connection for a right knee disability is remanded. For reasons set forth below, the Board finds that this case must again be remanded for further development. The Board regrets the delay associated with this remand but finds that such remand is necessary to ensure that there is a complete record upon which to decide the Veteran's claims and to afford him every possible consideration. Pursuant to the October 2018 Board remand, the Veteran underwent VA examinations of his back and right knee in August 2019 and October 2020. In providing negative nexus opinions with respect to the back and right knee disabilities, the August 2019 and October 2020 VA examiners reasoned that records were silent of back and right knee problems for a long period of time between the Veteran's in-service back and knee pain and his present back and right knee conditions. The examiners concluded that the present back and right knee diagnoses cannot be considered a continuation or progression of the in-service complaints without resorting to mere speculation. The Board finds that the August 2019 and October 2020 VA opinions are inadequate for adjudication purposes. The rationales for the negative opinions primarily rely on the absence of evidence of back and right knee problems for a long period of time between the Veteran's in-service back and knee pain and, his present back and right knee conditions. See Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006). Moreover, the examiners did not explain why the opinions could not be provided without resorting to mere speculation. See 38 C.F.R. § 3.102 (statements that involve "pure speculation or remote possibility" are not within the range of probability); Jones v. Shinseki, 23 Vet. App. 382 (2010) (a purported opinion that does not state the basis for inability to render a nexus opinion is inadequate except in limited circumstances). The examiners did not otherwise discuss the Veteran's contentions that his disabilities began in service and worsened over time. Given the inadequacies of the August 2019 and October 2020 VA opinions, the Board finds that a remand is required in order to obtain addendum opinions as to the etiologies of the back and right knee disabilities. These matters are REMANDED for the following action: 1. Ask the Veteran to identify, and provide appropriate releases for, any care providers who may possess new or additional evidence pertinent to the issues on appeal. If he provides the necessary release(s), assist him in obtaining the records identified, following the procedures set forth in 38 C.F.R. § 3.159. Any new or additional (i.e., non-duplicative) evidence received should be associated with the record. If any of the records sought are not available, the record should be annotated to reflect that fact and the Veteran, and his representative should be notified. 2. Obtain copies of records pertaining to any 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 to the extent possible, arrange for the claims file to be reviewed by an appropriate clinician for the purpose of preparing addendum opinions pertaining to the back and right knee service connection claims. If the examiner finds that another examination of the Veteran is required, one should be undertaken. After reviewing the record, the examiner is requested to provide the following opinions: (a) Is it at least as likely as not (i.e., whether it is 50 percent or more probable) that the current back disability had its onset in, or is otherwise related to, the Veteran's active service? In providing this opinion, the examiner is requested to address the significance of the Veteran's in-service treatment for back problems, as well as the Veteran's competent lay statements that his back disability began in service and worsened over time. (b) Is it at least as likely as not (i.e., whether it is 50 percent or more probable) that the current right knee disability had its onset in, or is otherwise related to, the Veteran's active service? In providing this opinion, the examiner is requested to address the significance of the Veteran's in-service treatment for right knee problems, as well as the Veteran's competent lay statements that his right knee disability began in service and worsened over time. The examiner is advised that the Veteran is competent to report his symptoms and history and that such reports must be acknowledged and considered in formulating any opinion. The examiner is also advised that the absence of evidence of treatment for the back disability or the right knee disability, by itself, is an insufficient for a negative opinion. A complete medical rationale for all opinions expressed must be provided. If an opinion cannot be provided without resorting to speculation, the examiner should provide complete explanations of why this is so. In so doing, the examiner is requested to explain whether any inability to provide a more definitive opinion is the result of a need for additional information, or the limits of current medical knowledge have been exhausted in providing an answer to that particular question. 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 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. J. Ragheb Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. R. Bobb, 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.