Citation Nr: 21042406 Decision Date: 07/13/21 Archive Date: 07/13/21 DOCKET NO. 17-01 153 DATE: July 13, 2021 REMANDED Entitlement to service connection for a neck condition is remanded. Entitlement to service connection for a left knee condition is remanded. Entitlement to service connection for a right knee condition is remanded. REASONS FOR REMAND The Veteran served on active duty from May 1970 to June 1978. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a May 2014 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In September 2019, the Board issued a decision denying, in relevant part, entitlement to service connection for a neck condition and entitlement to service connection for a bilateral knee condition. The Veteran subsequently appealed that part of the decision to the United States Court of Appeals for Veterans Claims (Court) in July 2020. In a November 2020 Memorandum Decision, the Court remanded the case to the Board for action consistent with the Memorandum Decision. The September 2019 Board decision also remanded the issues of entitlement to service connection for bilateral hearing loss and entitlement to a an initial rating in excess of 30 percent prior to March 17, 2015, and in excess of 50 percent from March 17, 2015 for posttraumatic stress disorder (PTSD) for additional development. A review of the record reflects that the development directed by the September 2019 Board remand have not been accomplished. As such, the issues of entitlement to service connection for bilateral hearing loss and entitlement to higher initial staged ratings for PTSD remain in appellate status and are not currently before the Board. 1. Entitlement to service connection for a neck condition is remanded. 2. Entitlement to service connection for a left knee condition is remanded. 3. Entitlement to service connection for a right knee condition is remanded. The Veteran avers that his neck condition and bilateral knee condition are due to constantly banging into hatch ways while serving on naval ships during active duty service. He asserts that his symptoms have continued since service. The Board notes that in a September 2019 Board decision, the Veteran's claims for entitlement to service connection for a neck condition and entitlement to service connection for a bilateral knee condition were denied. The Veteran appealed that decision. In the July 2020 appellant brief, attorneys for the Veteran argued the Board provided an inadequate rationale in support of its conclusions that the Veteran did not have a bilateral knee disability or a neck disability because it completely ignored material evidence favorable to the claim. The attorneys further argued VA never gave the Veteran a medical nexus evaluation for his bilateral knee or cervical neck disability even though it recognized that both claims were "medically complex as it involves the inner workings of the orthopedic system." In the August 2020 appellee brief, VA argued the Court should affirm the decision because the Board had a plausible basis in the record for finding appellant did not have current bilateral knee or neck disabilities. Specifically, VA argued the March 2015 private psychological evaluation does not establish a current disability and therefore is insufficient to trigger the duty to assist. The November 2020 Memorandum Decision found that the September 2019 Board decision denied the claim for a neck condition and bilateral knee condition on a finding that there was there was no current disability. However, the Court found the Board erred in failing to address favorable evidence suggesting neck and knee pain that might satisfy the current disability element of service connection. Specifically, the Board failed to discuss a March 2015 private psychologic examination report, which noted aspects of the Veteran's health. With regard to his bilateral knee condition, the Veteran reported tenderness along his shins and knee pain. With regard to his neck condition, he reported to the psychologist that he suspected he sustained a neck injury during service. Following examination, the psychologist listed tenderness along shins, knee pain, and suspected neck injuries as Axis III conditions. The Court found the Veteran's reporting of knee pain directly counters the Board's finding that he reported no knee pain and the psychologists inclusion of both knee pain and suspected neck pain suggests that both issues were current conditions affecting the Veteran's overall psychologic functioning. The Court found the Board's failure to adequately account for favorable evidence of record renders inadequate its reasons or bases for determining that service connection for neck and bilateral knee disabilities were not warranted. In light of the Veteran's statements, the favorable evidence suggesting neck and knee pain that may satisfy the current disability element of service connection, and in accordance with the November 2020 Memorandum Decision, the Board concludes that the Veteran should be afforded VA examinations to determine the nature and etiology of any current neck condition and/or bilateral knee condition. McLendon v. Nicholson, 20 Vet. App. 79 (2006). 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. 2. Thereafter, schedule the Veteran for a VA examination to determine the nature and likely etiology of the Veteran's neck condition. The Veteran's claims file must be made available to the examiner. The examiner should indicate whether it is at least as likely as not (50 percent probability or greater) that the Veteran's neck condition had causal origins in service or is otherwise related to the Veteran's active duty service. In rendering an opinion, the examiner is asked to comment on the March 2015 private psychologic examination report, to include the suspected neck injury. In rendering an opinion, the examiner should consider the lay statements of record, to include the Veteran's report of banging into hatchways while serving on board naval ships during active duty. 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. Schedule the Veteran for a VA examination to determine the nature and likely etiology of the Veteran's bilateral knee condition. The Veteran's claims file must be made available to the examiner. The examiner should indicate whether it is at least as likely as not (50 percent probability or greater) that the Veteran's bilateral knee condition had causal origins in service or is otherwise related to the Veteran's active duty service. In rendering an opinion, the examiner is asked to comment on the March 2015 private psychologic examination report, to include the noted knee pain. In rendering an opinion, the examiner should consider the lay statements of record, to include the Veteran's report of banging into hatchways while serving on board naval ships during active duty. 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. 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. B. G. LeMoine Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Aston, 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.