Citation Nr: 22018235 Decision Date: 03/28/22 Archive Date: 03/28/22 DOCKET NO. 16-39 682 DATE: March 28, 2022 REMANDED Entitlement to an increased rating in excess of 20 percent for a neck disability is remanded. Entitlement to service connection for a right knee disability is remanded. Entitlement to service connection for a left knee disability is remanded. Entitlement to service connection for a right hip disability is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from September 1963 to September 1966, and in the Army National Guard from February 1975 to June 1996. The Veteran testified before the undersigned Veterans Law Judge during a video hearing in August 2020. A transcript of the hearing is of record. 1. Entitlement to an increased rating in excess of 20 percent for a neck disability The Veteran seeks an increased rating in excess of 20 percent for his cervical spine disability. The Board finds, however, that the most recent VA examination afforded to the Veteran to assess the nature and severity of his service-connected neck disability to be inadequate and incomplete. As such, the Board finds that remand is required for the VA to fulfill its duty to the Veteran. The Board notes that the VA's statutory duty to assist the Veteran includes the duty to conduct a thorough and contemporaneous examination so that the evaluation of the claimed disability will be a fully informed one. Green v. Derwinski, 1 Vet. App. 121 (1991); Snuffer v. Gober, 10 Vet. App. 400 (1997). Assistance by VA includes providing a medical examination or obtaining a medical opinion when such an examination or opinion is necessary to make a decision on a claim. 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79 (2006). When the medical evidence is inadequate, as it is here, VA must supplement the record by seeking an advisory opinion or ordering another medical examination. Colvin v. Derwinski, 1 Vet. App. 171 (1991); Hatlestad v. Derwinski, 3 Vet. App. 213 (1992). The Board finds that the September 2021 VA examination report to be inadequate as several of the requisite sections of the report are left blank, and or contradict previous examinations and treatment records. With regards to the Veteran's neck, the September 2021 VA examiner only diagnosed the Veteran with a cervical strain, when all past VA examinations in June 2014, May 2016, and September 2017, as well as VA treatment records, show diagnoses for degenerative arthritis of the cervical spine. The Board notes that the 2021 VA examiner not only failed to provide a diagnosis for a degenerative condition, but also failed to address/reconcile such discrepancy in the report. To this end, the Board notes that such report is also missing any diagnostic (X-ray) analysis conducted with the examination, or an analysis of any contemporaneous X-ray reports of record. The Board finds that such lack of explanation renders the VA examination report inadequate. Similarly, the Board also finds that September 2021 VA examination report to be incomplete. To this end, like the Veteran's diagnosis for arthritis, the Veteran was also previously diagnosed with IVDS, to include in his previous VA examinations. The Board notes, the 2021 VA examiner, again, failed to not only address IVDS by leaving the entire section blank, but also failed to provide any rationale between such discrepancy with the previous examinations and treatment records. In this regard, as noted above the diagnostic section (X-rays) was also ostensibly left blank in this report. Here, the Board points out that both sections offer the examiner options to note "no" for any findings for that section, however, here the 2021 VA examiner left such sections completely blank. Consequently, the Board must find that the September 2021 VA examination report to be incomplete and inadequate for rating purposes, and remand is again required for the VA to fulfill its duty to the Veteran. 2. Entitlement to service connection for a right knee disability is remanded. 3. Entitlement to service connection for a left knee disability is remanded. 4. Entitlement to service connection for a right hip disability is remanded. The Board, likewise, finds that the VA examinations and addendum opinions obtained by the RO regarding the Veteran's claim for service connection for a bilateral knee and right hip disabilities to be inadequate for adjudication. With specific regards to the Veteran's claimed knee disabilities, the Board notes that the RO obtained a VA examination and report in September 2021, and two addendum opinions in December 2021 and January 2022. However, upon close review of these opinions reveal that all three fail to reconcile their negative nexus opinion with the countervailing, positive nexus, opinion of record. Here, with regards to both the Veteran's bilateral knee and right hip, the evidence includes a January 2006 opinion letter from the Veteran's treating physician, Dr. J. F., who opined that these disabilities are related to his injury in active service. While such private opinion is not dispositive of the claims, as the opinion is based exclusively on the Veteran's subjective lay assertions, the Board finds that such opinion still must be reconciled by the VA examiner. Even upon repeat attempts, the VA examiners all failed to address this positive opinion letter in their opinions, and as such, rendering such report and the addendum opinions to be inadequate. Further, with regards to all three disabilities, the Board finds that a close review of the VA nexus opinions reveals that the examiner's negative findings against the Veteran's claims were all ostensibly based on the lack of continuity of treatment during and directly after the Veteran's active service. To this end, however, none of the opinions addressed, or even acknowledged, any of the Veteran's lay statements regarding suffering pain and functional loss in his hips and knees from service since his claimed in-service injury. The Board finds that such lack of discussion regarding lay observable evidence renders such opinions inadequate and a remand is required for the VA to fulfill its duty to the Veteran. The matters are REMANDED for the following action: 1. Obtain updated VA records and private treatment records (inpatient and outpatient) and associate the records with the claims file. 2. The RO should schedule the Veteran for VA examinations pertaining to his claimed bilateral knees and right hip. The examiner(s) is asked to interview the Veteran, review the claims file, complete all necessary diagnostic tests, and accomplish the following: (a) Provide specific medical diagnoses pertaining to the Veteran's claimed bilateral knee and right hip disabilities. The examiner(s) must explicitly discuss such diagnosis, or lack thereof, if such differs from those chronic conditions previously diagnosed and of record, to include degenerative conditions and IVDS. (b) Provide an opinion as to whether it is at least as likely as not (a 50 percent or greater probability) that any bilateral knee and right hip conditions are etiologically related to his service, to include consideration of any lay statements to explicitly include his statements during his Board hearing. The examiner(s) must address and reconcile any opinion with that of the January 2006 opinion letter from Dr. J. F. A detailed rationale for all opinions must be provided, which must include explicit consideration of the Veteran's lay contentions of continuity of symptoms. 3. Schedule the Veteran for an examination to assess the nature and severity of his neck disability. The examiner must review the claims file and should note that review in the report. The examiner should provide ranges of cervical spine motion for active and passive motion for the neck. The examiner should state whether there is any additional loss of function due to weakened motion, painful motion, excess motion, fatigability, incoordination, or on flare up. The AOJ must ensure that the associated examination report includes all information necessary for rating purposes. DELYVONNE M. WHITEHEAD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Ziheng Zhu, 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.