Citation Nr: 21041395 Decision Date: 07/09/21 Archive Date: 07/09/21 DOCKET NO. 17-12 399 DATE: July 9, 2021 REMANDED The following issues are remanded for further development: (1) entitlement to service connection for a neck condition; (2) entitlement to service connection for a low back condition; and (3) entitlement to service connection for a left knee condition. REASONS FOR REMAND The Veteran served on active duty from August 1978 to February 1981 in the United States Navy. These matters come before the Board of Veterans' Appeals (Board) on appeal from a January 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) New Orleans, Louisiana. In July 2019, the Veteran testified at a Board hearing before the undersigned. A transcript of the hearing is of record. Thereafter, in December 2019, the Board found that new and material evidence had been received to reopen the previously denied claims of entitlement to service connection for the low back and left knee. The Board then remanded the merits of these issuesas well as the issues of service connection for an acquired psychiatric condition, a neck condition, and residuals of chemical burnsfor further development. Following the December 2019 Board decision and remand, a VA RO issued a rating decision in May 2020 granting service connection for dyshidrotic eczema (claimed as chemical burns) and adjustment disorder with anxiety. The Board finds that this grant of service connection by the RO constituted a full award of the benefits sought on appeal with respect to those issues. See Grantham v. Brown, 114 F.3d 1156, 1158-59 (Fed. Cir. 1997) (holding that where an appealed claim for service connection is granted during the pendency of the appeal, a second notice of disagreement must thereafter be timely filed to initiate appellate review of the claim concerning "downstream" issues, such as the compensation level assigned for the disability and the effective date). Accordingly, the issues of service connection for an acquired psychiatric disorder and residuals of chemical burns are no longer appellate status. 1. Service Connection for a Neck Condition In December 2019, the Board remanded the issue of service connection for a neck condition for the provision of a VA examination and medical opinion. The requested examination occurred in March 2020. After reviewing the Veteran's claims file, conducting a physical examination, and providing current diagnoses of degenerative disc disease of the cervical spine and spinal fusion, a VA examiner opined that it was less likely than not that any current neck condition was caused by, had its onset in, or was otherwise related to service. In providing this opinion, the VA examiner was asked to address the Veteran's contention that he developed symptoms of a neck disability in service that continued to the present. In response to this prompt, the examiner stated that he did not locate any service treatment records (STRs) where the Veteran had complaints of or sought treatment for neck pain in service and that the Veteran underwent a cervical fusion in 2006, more than 20 years following discharge. The Board finds this rationale to be inadequate for adjudicative purposes as it conflicts with the holding of the Court of Appeals for Veterans Claims (Court) in Dalton v. Nicholson. 21 Vet. App. 23, 39-40 (2007) (stating that that a medical examiner "cannot rely on the absence of medical records corroborating [an] injury to conclude that there is no relationship between the appellant's current disability and his military service." (citing Smith v. Derwinski, 2 Vet. App. 137, 140 (1992)). Additionally, the examiner's rationale did not directly address the Veteran's lay contention of continuity of symptoms from service to the present, as requested in the Board's December 2019 remand. For these reasons, remand is warranted for the provision of an additional VA medical opinion. In ordering remand in the instant case, the Board is not making a preliminary formal finding as to the credibility of the Veteran's lay reports regarding in-service onset of his current neck condition. Rather, the Board is merely requesting that the clinician on remand consider the lay descriptions of the history of the Veteran's neck condition. See Smith v. Wilkie, 32 Vet. App. 332, 338 (2020). 2. Service Connection for Low Back and Left Knee Conditions Similar to the issue of service connection for a neck condition, the Board also finds that remand is warranted for the issues of service connection for low back and left knee conditions. Specifically, in December 2019, the Board requested that VA examinations and medical opinions be provided in connection with the issues of service connection for the low back and left knee. In the Board's remand directives, the examiners selected to provide the opinions on remand were to explicitly address the Veteran's contentions that he developed low back and left knee symptoms while still in service that have continued to the present. The requested VA examinations and medical opinions were provided in March 2020. However, the etiological opinions provided did not explicitly address the remand directives pertaining to the Veteran's lay testimony. Accordingly, the Board may not conclude that there was substantial compliance with the December 2019 remand directives, warranting an additional remand for new VA medical opinions. See Stegall v. West, 11 Vet. App. 268 (1998). The matters are REMANDED for the following action: 1. Send the Veteran's claims file to an appropriate VA clinician for the issuance of a medical opinion regarding the nature and etiology of the Veteran's current left knee condition. The clinician should review the Veteran's entire claims file. If the clinician determines that an examination is necessary in order to provide the requested opinion, one should be scheduled. The clinician should then address whether it is at least as likely as not (50 percent probability or more) that the Veteran's current left knee condition had its onset in, was caused by, or is otherwise related to service. In answering this question, the clinician should directly address (a.) whether a September 1978 in-service injury rendered the Veteran more susceptible to later injuries, or increased the severity of his current condition; (b.) whether a September 1978 in-service injury to the left knee was associated with the performance of a left knee meniscectomy in 1983; and (c.) the Veteran's contention that he developed left knee symptoms in service and that these symptoms have persisted to the present. In offering all opinions, the clinician should consider medical and lay evidence dated both prior to and since the filing of the claim. A complete rationale for any opinion rendered must be provided. If the clinician cannot provide the requested opinions without resorting to speculation, he or she should expressly indicate this and provide a supporting rationale as to why that is so. 2. Send the Veteran's claims file to an appropriate VA clinician for the issuance of a medical opinion regarding the nature and etiology of the Veteran's current low back condition. The clinician should review the Veteran's entire claims file. If the clinician determines that an examination is necessary in order to provide the requested opinion, one should be scheduled. The clinician should then address whether it is at least as likely as not (50 percent probability or more) that the Veteran's current low back condition had its onset in, was caused by, or is otherwise related to service. In answering this question, the clinician should directly address (a.) the Veteran's contention that he developed low back symptoms in service and that these symptoms have persisted to the present; and (b.) December 2019 Board hearing testimony and materials received by VA in March 2021 pertaining to injuries incurred during the performance of "motivational tours" or "short tours" in the Navy. In offering all opinions, the clinician should consider medical and lay evidence dated both prior to and since the filing of the claim. A complete rationale for any opinion rendered must be provided. If the clinician cannot provide the requested opinions without resorting to speculation, he or she please expressly indicate this and provide a supporting rationale as to why that is so. 3. Send the Veteran's claims file to an appropriate VA clinician for the issuance of a medical opinion regarding the nature and etiology of the Veteran's current neck condition. The clinician should review the Veteran's entire claims file. If the clinician determines that an examination is necessary in order to provide the requested opinion, one should be scheduled. The clinician should then address whether it is at least as likely as not (50 percent probability or more) that the Veteran's current neck condition had its onset in, was caused by, or is otherwise related to service. In answering this question, the clinician should directly address (a.) the Veteran's contention that he developed neck symptoms in service and that these symptoms have persisted to the present; and (b.) December 2019 Board hearing testimony and materials received by VA in March 2021 pertaining to injuries incurred during the performance of "motivational tours" or "short tours" in the Navy. In offering all opinions, the clinician should consider medical and lay evidence dated both prior to and since the filing of the claim. A complete rationale for any opinion rendered must be provided. If the clinician cannot provide the requested opinions without resorting to speculation, he or she please expressly indicate this and provide a supporting rationale as to why that is so. (Signature on Next Page) S.C. KREMBS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board N.S. Pettine, 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.