Citation Nr: 21042685 Decision Date: 07/13/21 Archive Date: 07/13/21 DOCKET NO. 09-07 519 DATE: July 13, 2021 REMANDED The appeal regarding entitlement to service connection for a right knee disability is remanded. The appeal regarding entitlement to service connection for a neck disability is remanded. The appeal regarding entitlement to a total disability rating based on individual unemployability (TDIU) prior to August 26, 2010 is remanded. REASONS FOR REMAND The Veteran had active service from February 1981 to August 1982. This matter comes before the Board of Veterans' Appeals (Board) from a December 2007 rating decision by the Agency of Original Jurisdiction (AOJ). The instant issues were previously before the Board in April 2010, May 2011, June 2016, and September 2020, and were remanded for development of the record. The Board notes that the Veteran is in receipt of a 100 percent schedular evaluation for traumatic brain injury (TBI) residuals from August 26, 2010. The instant appeal dates to claims submitted in 2007. Thus, the issue of entitlement to TDIU prior to August 2010 remains under consideration. Service connection for a right knee disability Service connection for a neck disability The Veteran seeks service connection for right knee and neck disabilities, claiming that these disabilities are related to a motorcycle accident during service. The record discloses that the Veteran was in an accident in August 1982 and sustained a head injury. At that time, he reported dragging his heels in an attempt to stop the motorcycle, and a scrape was observed on his right heel. In a July 2007 statement, the Veteran stated that he dragged his right heel during the motorcycle accident, and that he had experienced symptoms with his right knee since then. In November 2007, he reported that he had experienced neck problems in physical training during service following the accident, but did not seek treatment because he assumed that his symptoms were related to sleeping incorrectly on his neck. In its September 2020 remand, the Board observed that opinions obtained in September 2010 and September 2011 did not adequately consider the Veteran's lay statements concerning in-service events and his reported history of continuous symptoms since the motor vehicle accident during service. It additionally noted that a May 2017 VA examiner indicated that the Veteran's recollections might be accurate, and that such was not a medical finding as to the etiology of the Veteran's claimed right knee and neck disabilities. It directed that an additional opinion be obtained. It specified that the reviewing clinician should specifically discuss the Veteran's report of dragging his heels during the 1982 accident and his contention that he had experienced right knee symptoms since then. The Board also directed that the clinician should specifically consider and address the Veteran's July 2007 and November 2007 lay statements, as well as statements made during September 2010, September 2011, and May 2017 VA examinations. In September 2020, a VA physician reviewed the record. He indicated that the Veteran's report of dragging his heel was at variance with the record, and noted that the Veteran was sufficiently intoxicated that he did not remember the accident. However, as noted by the Board in its September 2020 remand, and confirmed on current review of the record, service treatment records do indicate that, while he expressed confusion regarding the event, the Veteran reported having dragged his heels in attempt to stop the motorcycle. At that time, a scrape was observed on his right heel. Additionally, the physician did not discuss the Veteran's lay statements regarding continuous symptoms since the in-service accident, as specifically directed by the Board. Regarding the claimed neck disability, the physician indicated that the Veteran had cervical strain during service and that the present problem was osteoarthritis, which was common with advancing years and not related to strain. These statements do not adequately address the Veteran's lay statements regarding symptoms during service and continuously since then. Considering the defects discussed above, the Board concludes that an additional examination is necessary to address the etiology of the Veteran's right knee and neck disabilities. TDIU prior to August 26, 2010 The Veteran contends that his claimed right knee and neck disabilities impact his occupational functioning. Further development and adjudication of these issues may provide evidence in support of the claim for TDIU. The Board has therefore concluded that it would be inappropriate at this juncture to enter a final determination on that issue. See Harris v. Derwinski, 1 Vet. App. 180 (1991). The matters are REMANDED for the following action: 1. Schedule the Veteran for an examination to determine the nature and etiology of his claimed right knee and neck disabilities The evidentiary record, including a copy of this remand, must be made available to and reviewed by the examiner. The examination report must include a notation that this record review took place. After the record review and examination of the Veteran, the examiner should provide an opinion regarding whether it is at least as likely as not that the Veteran's right knee and neck disabilities were incurred in, or are otherwise related to active service, to include the August 1982 motorcycle accident. In rendering these opinions, the examiner is advised that the Veteran is competent to report his symptoms and history. Such reports must be acknowledged and considered in formulating any opinion. If the examiner rejects the Veteran's reports, he or she must provide an explanation for such rejection. The examiner is not to improperly discount the Veteran's lay statements or mistakenly rely on an absence of medical evidence in the record to support his or her conclusions. Specifically, the examiner must discuss the service treatment record notation indicating the Veteran's report that he dragged his heels to stop the motorcycle's forward motion during the August 1982 accident, and his later statement that this action caused ongoing right knee pain. The examiner is also directed to consider the Veteran's July 2007 and November 2007 lay statements, as well as statements made at the September 2010, September 2011, and May 2017 VA examinations. The complete rationale for all opinions should be set forth, and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. If an opinion cannot be provided without resorting to mere speculation, the examiner must provide a complete explanation for why an opinion cannot be rendered. In so doing, the examiner must explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question. 2. Then, readjudicate the Veteran's claims. If the decision remains adverse to the Veteran, he and his representative should be furnished a supplemental statement of the case (SSOC) and afforded an appropriate period within which to respond thereto. DONNIE R. HACHEY Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Barone, 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.