Citation Nr: 21042542 Decision Date: 07/13/21 Archive Date: 07/13/21 DOCKET NO. 18-47 794 DATE: July 13, 2021 REMANDED Entitlement to service connection for arthritis of the bilateral knees is remanded. Entitlement to service connection for a low back condition is remanded. Entitlement to service connection for carpal tunnel syndrome, left hand (also claimed as neurologic signs or symptoms) is remanded. Entitlement to service connection for carpal tunnel syndrome, right hand (dominant hand) (also claimed as neurologic signs and symptoms) is remanded. REASONS FOR REMAND The Veteran served on active duty from November 1988 to December 1992. These matters come before the Board of Veterans' Appeals (Board) on appeal from a June 2016 rating decision of a Regional Office (RO) of the Department of Veterans Affairs (VA). The Veteran testified before the undersigned Veterans Law Judge at a virtual Board hearing in March 2021. A transcript of the hearing has been associated with the record. 1. Entitlement to service connection for arthritis of the bilateral knees is remanded. The Veteran contends that her current arthritis of the bilateral knees is related to her active duty military service. Specifically, the Veteran asserts that her duties as a result of her military occupational specialty (MOS), including off-loading large, 40 feet long mail trucks with heavy mail bags, as well as a possible fall and injury that occurred during these duties resulted in her current bilateral knee disability. See March 2021 Board hearing transcript. A medical examination or medical opinion is necessary in a claim for service connection when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the Veteran's service or with another service-connected disability, but (4) insufficient competent medical evidence on file for the Secretary to make a decision on the claim. McLendon v. Nicholson, 20 Vet. App. 79, 8186 (2006); see also 38 U.S.C. § 5103A(d)(2); 38 C.F.R. § 3.159(c)(4)(i). These elements are satisfied regarding the claim of entitlement to service connection for arthritis of the bilateral knees. There is competent evidence of record that the Veteran has current condition of bilateral knee arthritis based on private treatment records. The Veteran competently and credibly testified during her Board hearing that she injured her knee during her active duty service while hauling mail bags off the mail truck. Regarding the third and fourth elements, there is an indication that the arthritis of her bilateral knees could be related to service. The Veteran has persistently claimed that she has experienced pain and decreased range of motion in her knees since her active duty military service. However, there is insufficient evidence of record by which the Board can make a decision. As the four McLendon elements are satisfied, the Veteran is entitled to a VA examination and medical opinion. 2. Entitlement to service connection for a low back condition is remanded. The Veteran contends that her current low back condition is related to her active duty military service. Specifically, the Veteran asserts that her low back disability began during active duty service, following a long road march during training. The Veteran contends that her low back condition was then continually exacerbated by her other activities and duties during her active duty service, including her mail truck duties as mentioned above. See March 2021 Board hearing transcript. The Veteran testified at the March 2021 Board hearing that she remembers that her low back began to bother her following a road march where the servicemembers had to carry their ruck sack for a training session. She reported during the hearing that she went to sick call for treatment for her low back pain several times, yet her back continued to bother her. The Veteran testified that her low back pain worsened from pulling heavy mail bags off the mail truck, as part of her MOS duties. The Veteran further testified that she stopped going to sick call for treatment of her low back because she did not want to be ridiculed or retaliated against. See March 2021 Board hearing transcript. The Veteran was afforded a VA examination for her low back in May 2016. The VA examiner opined that the Veteran's low back condition was less likely than not incurred in or caused by an in-service injury, event, or illness. The VA examiner reasoned that the Veteran was only seen "on one occasion while in service, with complaints of a two-week history of low back pain. She was diagnosed with lumbar strain, based on a normal physical examination. She states her current symptoms are from an automobile accident dating back to 2008. As she had a simple diagnosis of lumbar strain in service, and currently she reports lower lumbar disc disease after the motor vehicle accident in 2008, which has necessitated regular treatment... it is less likely than not her current back symptoms are a result of the lumbar strain she had in military service." Unfortunately, the Board finds that a remand is necessary as the May 2016 VA opinion is inadequate. Firstly, the VA examiner's opinions rely heavily on the absence of evidence in the Veteran's service treatment records (STRs). This VA examiner impermissibly relied on an absence of continued and documented symptoms without explaining why, as a medical matter, that the Veteran would have sought treatment or complained of the condition, or why an absence of treatment (as opposed to symptoms) was otherwise medically significant. See McKinney v. McDonald, 28 Vet. App. 15, 30 (2016); Fountain v. McDonald, 27 Vet. App. 258, 272-75 (2015); Buczynski v. Shinseki, 24 Vet. App. 221, 223-24 (2011). Secondly, the May 2016 VA examiner's rationale is conclusory and does not provide sufficient reasoning to support the conclusion that there is no link between the Veteran's claimed disability and her active service. The VA examiner should specifically consider the Veteran's contentions that her pain and disability, specifically of the low back, is a result of her in-service work as an administrative specialist with postal duties, and that such symptoms have continued since service. As such, additional medical opinion should be obtained on remand. 3. & 4. Entitlement to service connection for carpal tunnel syndrome, left hand and right hand (also claimed as neurologic signs or symptoms), is remanded. The Veteran contends that prior to assuming her postal duties during her active duty service, she spent the majority of her time doing typing work as an administrative specialist. The Veteran asserts that she first began experiencing symptoms of her now diagnosed bilateral carpal tunnel syndrome at this time. The Veteran reports that her condition worsened throughout her active duty service, and that within one year following separation, she was formally diagnosed with carpal tunnel and underwent surgery. See March 2021 Board Hearing transcript. The Veteran was afforded a VA examination for her bilateral carpal tunnel syndrome in May 2016. The VA examiner provided a negative nexus opinion for the claimed disability and reasoned that "upon comprehensive review of the evidence of record, I found a single entry for a hand condition. In September 1991, the Veteran was treated for a laceration to the dorsal base of her right index finger which occurred while she was washing dishes. This laceration was so superficial it was treated with steri-strips. There is absolutely no possible way this superficial laceration would have or could have resulted in carpal tunnel syndrome. There is no documented evidence to suggest she had carpal tunnel syndrome in service." The Board finds that the May 2016 VA opinion regarding the Veteran's bilateral carpal tunnel syndrome is inadequate. The lack of documented treatment in service, while probative, cannot serve as the sole basis for a negative finding. The Veteran's lay contentions must be considered and weighed in making the determination as to whether a nexus exists between the current disorder and service. Also, the controlling regulation is clear service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. Considering there is no other opinion of record that is adequate to adjudicate this claim, this claim should be remanded to obtain an additional VA medical opinion and examination, if necessary. The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination for arthritis of the bilateral knees. The record must be made available to and reviewed by the VA examiner. Following a review of the entire record, the examiner is asked to address the following: (a.) Is it at least as likely as not (i.e., 50 percent or greater probability) that the Veteran's current arthritis of the bilateral knees had its onset in, or is otherwise related to her period of active duty service, to include as a result of her injuries during her duties as an administrative specialist with postal duties? (b.) In answering this question, the VA examiner should address the Veteran's competent lay statements of record regarding the onset of her knee disability and symptoms of such. See VBMS, document labeled Hearing Transcript, receipt date 03/31/2021. 2. Obtain an addendum medical opinion from an appropriate VA clinician addressing the nature and etiology of the Veteran's current low back condition. The VA examiner should opine on the following: (a.) Whether it is at least as likely as not (i.e., probability of 50 percent or greater) that the Veteran's low back disability had its clinical onset during active service or is related to any in-service disease, event, or injury. 3. Obtain an addendum medical opinion from an appropriate VA clinician addressed the nature and etiology of the Veteran's current bilateral carpal tunnel syndrome. The VA examiner should opine on the following: (a.) Whether it is at least as likely as not (i.e., probability of 50 percent or greater) that the Veteran's bilateral carpal tunnel syndrome had its clinical onset during active service, or is otherwise related to any in-service disease, event, or injury, to include her typing duties as an administrative specialist. For all opinions provided, the examiner must include the underlying reasons for any conclusions reached. Note that the absence of documented medical treatment or diagnosis in the service treatment records cannot serve as the sole basis for a negative opinion. Lay contentions must be considered and weighed in making the determination as to whether a nexus exists. The examiner is reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as it is to find against it. Bethany L. Buck Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. M. Lowman, 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.