Citation Nr: 21030428 Decision Date: 05/18/21 Archive Date: 05/18/21 DOCKET NO. 16-47 484 DATE: May 18, 2021 REMANDED Entitlement to service connection for low back disability is remanded. Entitlement to service connection for left knee disability is remanded. REASONS FOR REMAND The Veteran served on active duty from April 1966 to April 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In July 2019, the Veteran testified at a Board videoconference hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. In a December 2019 decision the Board denied the claims for service connection for low back disability and left knee disability and remanded a claim for service connection for an acquired psychiatric disorder for further development. The Veteran appealed the denials of service connection for low back disability and left knee disability. In a November 2020 Order, the Court of Appeals for Veterans Claims (Court) granted a joint motion for remand by the parties and remanded these claims back to the Board for action consistent with the joint motion. The Board notes that the claim for service connection for an acquired psychiatric disorder has not been returned the Board and is not a subject of this current decision. Entitlement to service connection for low back disability is remanded. Entitlement to service connection for left knee disability is remanded. In the November 2020 joint motion, the parties noted that under McLendon v. Nicholson, 20 Vet. App. 79, 85-86 (2006), a VA medical examination or opinion is necessary if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim and (1) the record contains competent evidence of a current diagnosed disability or persistent or recurrent symptoms of disease; (2) the evidence establishes that the veteran suffered an in-service event, injury or disease; (3) and the evidence indicates that the claimed disability or symptoms may be associated with the established in-service event, injury or disease or with another service-connected disability. The parties indicated that the Board found that the first prong of this McLendon standard had been met for both claims on appeal when it noted the Veteran had been diagnosed with degeneration of a low back intervertebral disc and arthritic deformity of the left knee. The parties also indicated that the Board gave the Veteran the benefit of the doubt and found that he injured his back and left knee during service when he was 'shoved down some stairs, tripped' and suffered back pain and left knee pain during service. Thus, the Board found that the second prong of the McLendon standard was met. Additionally, the parties indicated that the December 2019 Board decision found the Veteran credible in his statements that he experienced continuity of low back and left knee symptoms, but that these statements were outweighed by the other evidence of record. The parties noted that in making this determination, the Board found there was evidence indicating that current low back and left knee disabilities may be associated with military service (i.e. the Veteran's report of continuity of symptomatology since service). Thus, the Board decision acknowledged that the third and final prong of McLendon had also been met. In reviewing the prior Board decision, the Board disputes that the Board found that there was competent and credible evidence of continuity of symptomatology since service. Rather, the Board noted that, after affording the Veteran the benefit of the doubt, he experienced back pain after being shoved and falling down the stairs during service. However, the Board did not conclude that the continued to experience back pain since service. On the contrary, the more probative evidence reflected that he first began to experience regular back pain following a post-service 1975 car accident. Similarly, the Board did not find credible his complaints of left knee pain since service. Nevertheless, given that the joint motion concluded that all three of the McLendon factors were met and given that the record does not include a medical nexus opinion concerning either the low back or knee disability, the Board finds a remand is necessary to afford the Veteran a VA examination to assess the likely etiology of his current low back and left knee disabilities. 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79, 85-86 (2006). The matters are REMANDED for the following action: 1. Obtain VA treatment records dated from January 2021 to the present. 2. Schedule the Veteran for a VA examination to assess the likely etiology of his current low back disability. The examiner must review the claims file in conjunction with the examination. This review should include the service treatment records, including the March 1968 separation examination and March 1968 report of medical history at separation, the post-service medical records, including from August 1975 and February 1977. The examiner should then provide an opinion in answer to the following question: Is the Veteran's current low back disability at least as likely as not related to service, including a fall downstairs that the Veteran suffered therein? In providing the opinion, the examiner should assume that the Veteran fell down stairs during basic training despite a record documenting such. The examiner should explain the rationale for the opinion provided. The examiner should consider that post-service in August 1975 the Veteran was involved in an automobile accident. An x-ray was normal except for thoracic scoliosis. The Veteran was afforded a VA examination in March 1977. Consistent with August 1975 treatment records, the examiner noted that the Veteran complained of back pain on examination but there were no areas of localized tenderness or rigidity. On x-ray examination there was some evidence of dorsal scoliosis and thoracic spine, with no other abnormality. Notably, subsequent June 1977 medical treatment records note that the Veteran was involved in another car accident in November 1976. The Veteran was diagnosed with lumbosacral strain, cervical strain and lumbar scoliosis. May 1983 imaging of the lumbosacral spine and pelvis note that the vertebral bodies, appendages, disc spaces, sacroiliac joint, sacrum and coccyx are normal with no evidence of an acute injury, localized bone destruction, erosion, malalignment, or narrowing of the disc spaces. 3. Schedule the Veteran for a VA examination to assess the likely etiology of his current left knee disability. The examiner must review the claims file in conjunction with the examination. This review should include the service treatment records, including the March 1968 separation examination and March 1968 report of medical history at separation, the post-service medical records, including from August 1975 and February 1977. The examiner should then provide an opinion in answer to the following question: Is the Veteran's current left knee disability at least as likely as not related to service, including a fall downstairs that the Veteran suffered therein? (Continued on the next page) In providing the opinion, the examiner should assume that the Veteran fell down stairs during basic training despite a record documenting such. The examiner should explain the rationale for the opinion provided. The examiner should consider that post-service, the Veteran was afforded a VA examination in April 1977 for complaints of back pain and leg numbness. Upon examination, the Veteran had no swollen or tender joints, no loss of muscle or muscle power, no ankylosis and normal feet. There were no findings pertaining to the left knee. The record contains no complaints or treatment for knee pain until 2015. During a July 2015 primary care visit the Veteran was noted to have arthritic deformity of the left knee with some discomfort on movement and walking. The Veteran used a cane and demonstrated minimal effusion, no erythema and no heat to the left knee. The Veteran also reported knee pain in August 2015. S. HENEKS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Dan Brook, 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.