Citation Nr: 21032412 Decision Date: 05/27/21 Archive Date: 05/27/21 DOCKET NO. 14-09 980 DATE: May 27, 2021 REMANDED Entitlement to service connection for a right shoulder disability is remanded. Entitlement to service connection for a right knee disability is remanded. Entitlement to service connection for a right elbow disability is remanded. REASONS FOR REMAND The Veteran served on active duty from October 1975 to October 1978. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a May 2012 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In August 2014, the Veteran testified before a Decision Review Officer. A transcript of the hearing has been added to the Veteran's claims file. In January 2018, the Board denied the Veteran's service connection claim for a right elbow disability. He appealed to the Court of Appeals for Veterans Claims (the Court). On May 29, 2019, the Court set aside the Board's decision and remanded the case. The Court faulted the Board for relying on an inadequate examination and rejecting the credibility of lay evidence based solely on the lengthy period without medical complaint. The Board has remanded the Veteran's claim for additional development three times, most recently in November 2020. The case is once again before the Board. In the last remand, the Board asked the examiner to opine on whether the Veteran's musculoskeletal disabilities (1) onset in service, (2) are otherwise related to service, (3) manifested within one year of discharge, and (4) were noted during service with continuity of symptoms since service. In response, the examiner rendered a negative nexus opinion for the Veteran's right shoulder, elbow, and knee. His reasoning was twofold and essentially the same for all three disabilities. First, he relied on the "absence of records during and in the immediate years" after service. And second, he thought the more likely explanation for the Veteran's disabilities was his seventeen plus years working in a paper mill. For the Veteran's right knee disability, he also noted that imaging studies from March 2012 showed no evidence of arthritis. Because the opinion is inadequate, another remand is necessary to ensure that the Veteran is afforded full compliance with the statutory duty to assist. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Fatal to the examiner's opinion is his heavy reliance on the lack of contemporaneous medical evidence. See Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006). Examiners are free to rely on affirmative evidence such as the Veteran's medical history report or the clinical findings from his quadrennial examination. But they cannot discount lay evidence simply because it is unaccompanied by contemporaneous medical evidence. See id. What's more, there are service treatment records for the Veteran's right elbow. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993). In October 1975, a military doctor noted that the Veteran's right arm was "crooked" and asked for a consult. The consulting doctor determined it was a "developmental deformity," "probably" radioulnar synostosis. There is also potentially a service treatment record for the Veteran's right knee. In August 1977, the Veteran presented complaining of "lumps on knee" for several weeks. It does not specify which knee is being treated, but the examiner does not address this potentially favorable evidence in his opinion. Remand is further warranted because the examiner's reasoning is internally inconsistent. He discounts the Veteran's claim because there is no complaint in his service treatment records. Instead, he attributes the cause to the Veteran's physical strain from his paper mill job. Yet, there's no complaint in the medical records from this time either. No explanation is offered for favoring the latter over the former. For these reasons, remand is required for an addendum medical opinion. Finally, as the case is being remanded for additional development, any outstanding VA treatment records should be associated with the claims file. See Bell v. Derwinski, 2 Vet. App. 611, 613 (1992) (per curiam). The matters are REMANDED for the following action: 1. Obtain all outstanding VA treatment records and associate them with the claims file. 2. Then, arrange for an appropriate healthcare provider to review the Veteran's claims file and provide an opinion on the following: (a.) whether it is at least as likely as not (50 percent probability or greater) that his right shoulder disability had its clinical onset during service or is due to an event or incident of the Veteran's period of active service. (b.) whether it is at least as likely as not (50 percent probability or greater) that the Veteran's right shoulder disability onset within one year of discharge from active duty. The examiner is advised that the Veteran is competent to report symptoms, treatment, and injuries, and that his reports must be considered in formulating the requested opinion. However, if there is a medical reason to doubt its veracity, the examiner should explain why the Veteran's statements or recollection are inconsistent with the evidence in this case, medical principles relating to the onset and progress of the disease, the specific findings in the record, and/or your professional judgment. If the reviewing health care provider finds that physical examination or telehealth interview of the Veteran and/or diagnostic testing is necessary, such should be accomplished. A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. 3. Arrange for an appropriate healthcare provider to review the Veteran's claims file and provide an opinion on the following: (a.) whether it is at least as likely as not (50 percent probability or greater) that his right knee disability had its clinical onset during service or is due to an event or incident of the Veteran's period of active service. (b.) whether it is at least as likely as not (50 percent probability or greater) that the Veteran's right knee disability onset within one year of discharge from active duty. The examiner is advised that the Veteran is competent to report symptoms, treatment, and injuries, and that his reports must be considered in formulating the requested opinion. However, if there is a medical reason to doubt its veracity, the examiner should explain why the Veteran's statements or recollection are inconsistent with the evidence in this case, medical principles relating to the onset and progress of the disease, the specific findings in the record, and/or your professional judgment. If the reviewing health care provider finds that physical examination or telehealth interview of the Veteran and/or diagnostic testing is necessary, such should be accomplished. A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. 4. Arrange for an appropriate healthcare provider to review the Veteran's claims file and provide an opinion as to: (a.) Whether the Veteran's right elbow disability clearly and unmistakably existed before his active duty service. (b.) If the examiner finds the Veteran's right elbow disability clearly and unmistakably existed before service, state whether it is clear and unmistakable that the pre-existing disability was NOT aggravated (i.e., permanently worsened beyond the natural course of the disease) during service. (c.) If the Veteran's right elbow disability did not clearly and unmistakably exist before service, the examiner must provide an opinion addressing (1) whether it is at least as likely as not (50 percent probability or greater) that it had its clinical onset during service or is due to an event or incident of the Veteran's period of active service; and (2) whether it is at least as likely as not (50 percent probability or greater) that the Veteran's right elbow disability onset within one year of discharge from active duty. The examiner is advised that the Veteran is competent to report symptoms, treatment, and injuries, and that his reports must be considered in formulating the requested opinion. However, if there is a medical reason to doubt its veracity, the examiner should explain why the Veteran's statements or recollection are inconsistent with the evidence in this case, medical principles relating to the onset and progress of the disease, the specific findings in the record, and/or your professional judgment. If the reviewing health care provider finds that physical examination or telehealth interview of the Veteran and/or diagnostic testing is necessary, such should be accomplished. A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. (Continued on the next page) 5. After undertaking any additional development deemed appropriate and giving the Veteran full opportunity to supplement the record, adjudicate the Veteran's pending claim in light of any additional evidence added to the record. If any benefit sought on appeal remains denied, the Veteran and his representative should be furnished with a Supplemental Statement of the Case and be afforded the applicable opportunity to respond before the record is returned to the Board for further review. Jenna Brant Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Canedy, 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.