Citation Nr: 21030914 Decision Date: 05/20/21 Archive Date: 05/20/21 DOCKET NO. 16-40 669 DATE: May 20, 2021 REMANDED Entitlement to service connection for a lumbar spine disorder is remanded. Entitlement to service connection for a left knee disorder is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from January 1977 to December 1979. These matters come before the Board of Veterans' Appeals (Board) on appeal from a September 2014 rating decision issued by a Department of Veterans Affairs Regional Office (RO). These matters previously came before the Board in March 2019, whereupon it was remanded to allow for additional development, to include obtaining outstanding records, including documentation of the Veteran's claimed in-service injury in a truck accident and to provide the Veteran with a VA examination for his back and knee disabilities. 1. Entitlement to service connection for a lumbar spine disorder is remanded. 2. Entitlement to service connection for a left knee disorder is remanded. The Veteran contends that his lumbar spine and left knee disorders are the result of his service. Specifically, the Veteran asserts that his lumbar spine and left knee disorders result from an accident while driving a truck in-service in late 1979. An August 2020 statement from W.W., the Veteran's former wife, indicated that the Veteran was involved in a truck accident in November 1979 and that he had injured his back and knee during that incident. An August 2020 statement from the Veteran's sister indicated that the Veteran has suffered from pain since an in-service truck accident in 1979. In its March 2019 remand, the Board instructed that a complete and through search for the Veteran's separation examination and any document that contains evidence of a traffic accident at Fort Riley in early 1979 was be completed. The Board instructed that all requests for such information as well as responses be documented in the claims file and that a Memorandum of Formal Finding of Unavailability of Service Treatment Records be documented in the record and a copy sent to the Veteran and his representative. Following the Board's remand, the agency of original jurisdiction (AOJ) requested the Veteran's service treatment records from the National Personnel Records Center (NPRC) and from the Veteran. However, there is no Memorandum of Formal Finding of Unavailability of Service Treatment Records was issued. On remand, such a Memorandum should be issued. A March 2020 VA examiner diagnosed the Veteran with degenerative arthritis of the spine and intervertebral disc syndrome as well as left knee osteoarthritis. The examiner went on to opine that it is less likely than not (less than 50 percent probability) that the Veteran's such disorders were incurred in or caused by his service as his service treatment records were entirely silent relating to his condition and there was no corroboration in the record of his truck accident. Thus, given the lack of an in-service event and no documentation to support a truck accident in service, the examiner opined it unlikely that the Veteran's present disabilities were related to his service. However, the March 2020 examiner did not consider the Veteran's reports that his lumbar spine and left knee symptoms began during service and instead relied upon the absence of in-service documentation at the sole basis for the opinion. See, e.g., Dalton v. Nicholson, 21 Vet. App. 23 (2007) (an examination was inadequate where the examiner did not comment on a Veteran's reports of in-service injury and instead relied on the absence of evidence in a Veteran's service treatment records to provide a negative opinion). The Board is also mindful that, in a case such as this where service treatment are unavailable, there is a heightened obligation to explain our findings and conclusions and to consider carefully the benefit-of-the-doubt rule. O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991); Pruitt v. Derwinski, 2 Vet. App. 83, 85 (1992). In light of the foregoing, the Board finds that there has not been substantial compliance with its March 2019 remand. See also Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (noting that Stegall requires substantial compliance with remand orders, rather than absolute compliance). Accordingly, a remand is warranted. The matters are REMANDED for the following action: 1. The Veteran should be given the opportunity to identify any outstanding private or VA treatment records relevant to the claims on appeal. After obtaining any necessary authorization from the Veteran, all outstanding records should be obtained, to include updated VA treatment records. For private treatment records, make at least two (2) attempts to obtain records from any identified sources. If any such records are unavailable, inform the Veteran and his representative and afford him an opportunity to submit any copies in their possession. For federal records, all reasonable attempts should be made to obtain such records. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 2. Obtain the Veteran's complete service personnel records/service treatment records and associate them with the claims file. A thorough search for the Veteran's separation exam and any document that contains evidence of a traffic accident at Ft. Riley in early December 1979 must be completed. Document all requests for information as well as all responses in the claims file. If any of the records are unavailable, the reasons for their unavailability should be noted in a Memorandum of Formal Finding of Unavailability of Service Treatment Records, documented in the claims file, and a copy sent to the Veteran and his representative. 3. Following the receipt of outstanding records, forward the claims file to an appropriate examiner to determine the nature and etiology of the Veteran's claimed lumbar spine and left knee disorders. The record, to include a copy of this Remand, must be made available to and be reviewed by the examiner. Any indicated evaluations, studies and tests should be conducted. The need for further examination is left to the discretion of the examiner. Thereafter, the examiner is asked to furnish an opinion with respect to the following questions: (A) Is it at least as likely as not (50 probability or greater) that the Veteran's current lumbar spine disorder had its onset during service or is otherwise related to service? The examiner should specifically address the Veteran's contention that an accident during service and his daily duties in his MOS as Bridge Specialist caused his back pain. (B) Is it at least as likely as not (50 probability or greater) that the Veteran's current left knee disorder had its onset during service or is otherwise related to service? The examiner should specifically address the Veteran's contention that an accident during service and his daily duties in his MOS as Bridge Specialist caused his left knee pain. The examiner is requested to consider and discuss the Veteran's statements as well as the statements of the Veteran's former wife and his sister. Lay statements are of heightened importance in this case, particularly if the service treatment records are not located and associated with the claims file. A rationale should be provided for all opinions offered. If it is not possible to provide a specific opinion regarding the above questions, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). The medical opinion must support the conclusions reached with an analysis that is adequate for the Board to consider and weigh against other evidence of record; medical opinions must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. If an opinion cannot be expressed without resort to speculation, ensure that the clinician so indicates and discusses why an opinion is not possible, to include whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. KRISTY L. ZADORA Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Kashif I. Ali, 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.