Citation Nr: 22017348 Decision Date: 03/24/22 Archive Date: 03/24/22 DOCKET NO. 10-47 260A DATE: March 24, 2022 REMANDED Service connection for residuals of a cervical spine disability is remanded. Service connection for a right knee disability, to include arthritis is remanded. REASONS FOR REMAND The Veteran served on active duty from September 1976 to September 1979 and from January 1991 to March 1991. The Veteran had subsequent Reserve service, including periods of active duty for training (ACDUTRA) and inactive duty for training (INACDUTRA). These matters come before the Board of Veterans' Appeals (Board) on appeal from September 2005 and September 2006 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO). The appeal was previously remanded in August 2015 for further development. Unfortunately, the Veteran died in July 2016. VA recognized the substitution of the Veteran's surviving spouse as the appellant in this case. The Veteran testified before another Veterans Law Judge (VLJ) at a Board hearing in April 2013. A transcript of the hearing is of record. In a November 2021 correspondence, the appellant was informed that the VLJ that conducted the hearing was no longer with the Board and was offered another hearing. The appellant responded in January 2022 and declined another Board hearing on this appeal. 1. Entitlement to service connection for residuals of a cervical spine disability is remanded. 2. Service connection for a right knee disability, to include arthritis is remanded. The Board regrets the delay, however additional development is required prior to adjudicating the claim. First for all issues, remand is necessary to verify all periods of ACDUTRA and INACDUTRA. In the prior August 2015 remand, the Board noted additional Defense additional Defense Finance and Accounting Service (DFAS) leave and earning statements were obtained that provided greater insight as to the Veteran's periods of ACDUTRA and INACDUTRA, noting that a September 1, 1986, to September 30, 1986, statement suggested the Veteran was engaged in and compensated for ACDUTRA and INACDUTRA. However, these additional records do not specify the EXACT dates of ACDUTRA and INACDUTRA for the entirety of his service. Therefore, on remand the RO must expressly indicate the dates of ACDUTRA and INACDUTRA. Additionally, remand is necessary to obtain a complete copy of service records. The record appears to be incomplete with respect to the Veteran's service personnel records (SPRs) and service treatment records (STRs) from the period of service in the Army Reserve. Second, the Board finds remand is required for addendum opinion. Where VA provides the veteran with an examination in a service connection claim, the examination must be adequate. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). A medical opinion based upon an inaccurate factual premise has no probative value. Reonal v. Brown, 5 Vet. App. 458, 461 (1993). When a Veteran has provided competent lay statements of an in-service injury, the examiner must consider and address them when developing his rationale. Dalton v. Nicholson, 21 Vet. App. 23, 39-40 (2007). The Veteran received a March 2016 VA examination for his cervical spine disability. The examiner diagnosed degenerative arthritis of the spine and intervertebral disc syndrome. The examiner opined that the Veteran's neck condition was less likely than not related, incurred or caused by service, ACDUTRA or INACDUTRA, to include the September 1986 motor vehicle accident. The examiner reasoned medical evidence documents that the motor vehicle accident did not result in a compression fracture of C6. The examiner explained a radiologist, who is a specialist in reading x-rays, did not find a fracture. The examiner noted the Veteran was able to continue in service and physical examinations in 1985 and 1990 were silent for a neck condition and the exams were normal, thus implying the acute condition in 1986 resolved. The examiner explained the Veteran's fall in 2000 led to a spinal cord injury which eventually led to a fusion. The examiner found the Veteran's current symptomatology and condition was related to his fall in 2000 not his motor vehicle accident. The Board finds this examination is inadequate. First, the examiner failed to consider that the Veteran continued to report ongoing symptoms. A March 1991 STR documents the Veteran complained and sought treatment for neck and upper back pain. The treatment provider noted that Veteran was instructed not to do pushups, sit ups, overhead work, and no lifting more than 20 lbs. Further, a March 1991 STR cervical spine radiographic report documents the Veteran reported he was in a motor vehicle accident and was currently having problems with his neck. The treatment provider determined the findings suggested early degenerative disc changes at C5 -C6. These STRs document the Veteran complained of ongoing neck symptoms and received treatment prior the 2000 fall, thereby suggesting the 1986 cervical spine condition was not acute and did not resolve as stated by the 2016 VA examiner. Next, the March 2016 VA examiner acknowledged the 1986 motor vehicle accident and stated the radiologist did not find a fracture. However, a September 1986 St. Mary's Hospital Record did not show that the Veteran did not have a compression fracture, instead the physician indicated X-rays showed possible compression fracture. The discharge doctor recommended that "once the [Veteran] gets to the Flint area he should have a laminogram study of the C6, at least the lateral view." Moreover, upon reviewing the x-rays the admitting doctor diagnosed acute closed head injury and compression fracture of C6. Thus, it appears the examiner findings that there was no 1986 diagnosis of a compression fracture is incorrect. See Reonal v. Brown, (a medical opinion based upon an inaccurate factual premise has no probative value). Lastly, the examiner reasoned in part that the Veteran was able to continue in service and a physical examination in 1985 was silent for a neck condition. A physical examination in 1985 has no bearing on the Veteran's neck disability as the Veteran contends the accident that caused his neck injury occurred in 1986. The Veteran received a March 2016 VA examination for his right knee. The examiner diagnosed degenerative arthritis of the right knee. The examiner opined the Veteran's right knee condition was less likely than not related, incurred in or caused by service, ACDUTRA or INACDUTRA to include the September 1986 motor vehicle accident. The examiner reasoned the Veteran was seen in 1979 for bilateral knee pain and was diagnosed with chondromalacia, but the examiner concluded this diagnosis was not supported by any objective evidence. Further, the examiner explained the Veteran was able to continue in service and by the mid-1980s and early 1990s physical examinations were silent for a knee condition and examinations were normal. The examiner concluded that this implies the acute condition in 1979 resolved. The examiner explained the Veteran's current condition and symptomatology was due to the Veteran's age and his weight which can put stress on the knee and lead to degenerative changes. The Board finds the March 2016 VA examination for the right knee is inadequate. First, the Board acknowledges that the Veteran's STRs document extensive treatment for his left knee; however, the STRs also document complaint and treatment for right knee pain. Next, the Board finds the examiner's rationale is inconsistent. The examiner concludes the diagnosis of bilateral chondromalacia during active service is not supported by objective evidence. However, contained in the same examination report, the examiner acknowledges the Veteran was seen in 1979 (during active service) for bilateral knee pain and was diagnosed with chondromalacia. Further supporting the diagnosis of bilateral chondromalacia, as well as ongoing symptoms is a May 1979 STR that documents the Veteran complained of pain in both knees and upon examination the treatment provider diagnosed chronic left and right knee pain. Also, in the Veteran's September 1979 report of medical history he reported bilateral knee pain. Thus, it appears the examiner did not consider all relevant evidence of record. Moreover, the examiner appears to ignore the Veteran's lay statements regarding his knee injury in Korea and his reports of ongoing symptoms. See April 2008 statement. For the foregoing reasons and in light of these arguments and deficiencies, the Board finds remand is warranted for addendum opinions. The matters are REMANDED for the following action: 1. Obtain all updated records (i.e., those not already of record) of VA, including a complete copy of the Veteran's SPRs and STRs pertaining to his service in the Army Reserve. Also, obtain adequately identified private treatment records the Veteran has received for the disabilities on appeal. If any requested records are not available, or the search for any such records otherwise yields negative results, that fact must clearly be documented in the claims file. Efforts to obtain these records must continue until it is determined that they do not exist or that further attempts to obtain them would be futile. The non-existence or unavailability of such records must be verified, and this should be documented for the record. Required notice must be provided to the appellant and her representative. 2. Verify all periods of ACDUTRA and INACDUTRA in a MEMORANDUM for the claims file that EXPRESSLY indicates the dates of ACDUTRA and INACDUTRA from November 1979 to September 1982 and September 1985 to October 1999 from all appropriate sources. If such information is not available, or the search for any such information otherwise yields negative results, that fact must clearly be documented in the claims file. Efforts to obtain these records must continue until it is determined that they do not exist or that further attempts to obtain them would be futile. The non-existence or unavailability of such records must be verified, and this should be documented for the record. Required notice must be provided to the appellant and her representative. 3. After any additional records are associated with the claims file and verification of service dates has been exhausted obtain an addendum opinion to determine the nature and likely cause of the cervical spine disability. The Veteran's entire claims file, to include a copy of this remand, should be provided to the examiner. Any indicated tests and studies must be accomplished, and all clinical findings must be reported in detail and correlated to a specific diagnosis. The examiner should read the full text of the remand above, which includes relevant medical history. Next, the examiner should identify all cervical spine disabilities present in the file. For each identified cervical spine disability, provide an opinion with respect to whether it is at least as likely as not (a 50 percent probability or more) that the cervical spine disability was the result of a disease or injury incurred during ACDUTRA, or an injury incurred during a period of INACDUTRA, including the motor vehicle accident. 4. After any additional records are associated with the claims file and verification of service dates has been exhausted, obtain an addendum opinion to determine the nature and likely cause of any right knee disability. The Veteran's entire claims file, to include a copy of this remand, should be provided to the examiner. Any indicated tests and studies must be accomplished, and all clinical findings must be reported in detail and correlated to a specific diagnosis. The examiner should read the full text of the remand above, which includes relevant medical history. Next, the examiner should identify all right knee disabilities present in the file. For each identified right knee disability, provide an opinion with respect to whether it is at least as likely as not (a 50 percent probability or more) any right knee disability had onset in, or is otherwise related to, the Veteran's active service, including his reported fall in Korea. For each identified right knee disability, provide an opinion with respect to whether it is at least as likely as not (a 50 percent probability or more) that the right knee disability was the result of a disease or injury incurred during ACDUTRA, or an injury incurred during a period of INACDUTRA, including the motor vehicle accident. 5. In addressing the above, the examiner must consider and discuss all pertinent medical and lay evidence of record, to include competent, lay assertions as to the nature, onset, and continuity of symptoms. The examiner must consider and address the following: 1) the September 1986 St. Mary's Hospital record documenting a motor vehicle accident, 2) the March 1991 STR documenting complaint and treatment for neck pain, 3) the 1979 STRs documenting a diagnosis of bilateral chondromalacia of the knees, 4) the Veteran's April 2008 statement. The examiner is advised that the Veteran is competent to report his symptoms and history, and should consider his statements that are of record in the file. Such reports must be acknowledged and considered in formulating any opinion. If lay assertions in any regard are discounted, the examiner should clearly state and explain why. The examiner should not ignore the Veteran's lay statements or rely on an absence of medical evidence in the record to support his or her conclusions. All opinions must include a detailed rationale. Providing an opinion or conclusion without explanation will delay processing of the claim and require further clarification. David Gratz Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Braxton, 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.