200615-93661

Citation Nr: AXXXXXXXX
Decision Date: 07/14/21 Archive Date: 07/14/21
DOCKET NO. 200615-93661
DATE: July 14, 2021
REMANDED
The issue of service connection for a back condition is remanded.
The issue of service connection for a left knee condition is remanded.
The issue of service connection for a right knee condition is remanded.
REASONS FOR REMAND
The Veteran served on active duty from September 2006 to January 2007 and from November 2009 to December 2010.
This matter comes before the Board of Veterans' Appeals (Board) from a May 2020 rating decision from a Department of Veterans Affairs (VA) Regional Office (RO).
The Veteran appealed the claim with a VA Form 10182 requesting the Board review the claim. He selected the Hearing Docket. He testified in a hearing in March 2021. A transcript of the hearing is associated with the claims file. The Board has considered evidence received from the Veteran up to 90 days after the hearing.
1. Service Connection for a Back Condition
2. Service Connection for a Left Knee Condition
3. Service Connection for a Right Knee Condition
These matters are REMANDED for the following action:
1. BACKGROUND FOR THE ADJUDICATOR
VA must provide a VA medical examination 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 that certain diseases manifested during an applicable presumptive period for which the claimant qualifies; and (3) an indication that the disability or persistent/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, 81 (2006); see also 38 U.S.C. § 5103A(d)(2); 38 C.F.R. § 3.159(c)(4)(i).
At the time of the May 2020 Rating Decision, the Veteran reported persistent symptoms of chronic knee and back pain in VA treatment records from January 2011 to March 2020. He claimed knee and back symptoms were due to heavy physical exertion in service, to include a deployment to Afghanistan when he was awarded the Combat Action Badge. There, however, is not sufficient competent medical information in the file to show a causal nexus. Therefore, at the time of the underlying Rating Decision, VA had a duty to assist the Veteran in obtaining examination.
The RO scheduled examinations for the Veteran and then cancelled those examinations. The Veteran was then denied service connection for his claimed conditions without rescheduling the examinations or obtaining sufficient evidence to determine if there was a causal nexus. This did not satisfy VA's duty to assist the Veteran.
SPECIFIC REMAND DIRECTIVES FOLLOW
2. Schedule the Veteran for an examination by an appropriate clinician to determine whether he has disabilities of the BACK, LEFT KNEE, AND RIGHT KNEE that were caused by any incident of military service.
The examiner must review the entire record.
All appropriate tests, studies and consultations must be accomplished, and all clinical findings must be reported in detail in the narrative portion of the examination report.
If a diagnosis cannot be provided but the Veteran's condition manifests in symptoms that cause functional impairment, then the examiner must consider them a "disability" for the purpose of providing the requested opinions below.
THE EXAMINER IS ADVISED THAT THE VETERAN SERVED IN COMBAT. HIS STATEMENTS ABOUT IN-COMBAT SERVICE ARE PRESUMED CREDIBLE, TO INCLUDE STATEMENTS ABOUT INJURIES, EVEN IF NOT REFLECTED IN THE VETERAN'S SERVICE TREATMENT RECORDS.
The Board requests the examiner review the relevant evidence of record, history provided by the Veteran, and sound medical principles, and provide an opinion as to the following:
(a.) Identify all back disabilities present during the appeal period.
(b.) Identify all left knee disorders present during the appeal period.
(c.) Identify all right knee disorders present during the appeal period.
(d.) For each identified disability state whether it is related to his service, to include heavy physical exertion during his service.
A thorough explanation must be provided for the opinion rendered. If the examiner cannot provide the requested opinion without resorting to speculation, s/he must expressly indicate this and provide supporting rationale as to why the opinion cannot be made without resorting to speculation.
The examiner must review the entire record, but ATTENTION IS DRAWN TO THE FOLLOWING AS TO THE VETERAN'S BACK:
A JANUARY 2011 TREATMENT RECORD REPORTING BACK PAIN.
A NOVEMBER 2016 TREATMENT RECORD NOTING CHRONIC BACK PAIN.
AN AUGUST 2017 TREATMENT RECORD NOTING CHRONIC BACK PAIN.
A MARCH 2018 TREATMENT RECORD NOTING BACK PAIN.
A JUNE 2018 TREATMENT RECORD NOTING BACK PAIN.
A MARCH 2019 TREATMENT RECORD NOTING CHRONIC BACK PAIN.
A MARCH 2020 FULLY DEVELOPED CLAIM REPORTING BACK PAIN DUE TO HEAVY PHYSICAL ACTIVITY DURING DEPLOYMENT TO AFGHANISTAN, DURING WHICH, THE VETERAN RECEIVED THE COMBAT ACTION BADGE.
MARCH 2021 TESTIMONY INDICATING THE VETERAN PUT A LOT OF STRAIN ON HIS BACK WHILE HIKING AND WALKING UP MOUNTAINS, EXPERIENCED AN IED EXPLOSION, AND WAS IN SEVERAL MOTOR VEHICLE ACCIDENTS IN AFGHANISTAN.
MARCH 2021 TESTIMONY INDICATING THE VETERAN EXPERIENCE BACK PAIN WHILE IN SERVICE BUT SHRUGGED IT OFF.
JUNE 2021 TREATMENT RECORDS NOTING CHRONIC LOW BACK PAIN SINCE DEPLOYMENT IN 2010.
The examiner must review the entire record, but ATTENTION IS DRAWN TO THE FOLLOWING AS TO THE VETERAN'S KNEES:
A JANUARY 2011 TREATMENT RECORD REPORTING PAIN IN THE KNEES.
A NOVEMBER 2016 TREATMENT RECORD NOTING CHRONIC KNEE PAIN.
AN AUGUST 2017 TREATMENT RECORD NOTING CHRONIC KNEE PAIN.
A MARCH 2018 TREATMENT RECORD NOTING PAIN IN THE KNEES.
A JUNE 2018 TREATMENT RECORD NOTING PAIN IN THE KNEES.
A DECEMBER 2018 TREATMENT RECORD NOTING A BAD KNEE FLARE-UP.
A MARCH 2019 TREATMENT RECORD NOTING CHRONIC KNEE PAIN.
A MARCH 2020 FULLY DEVELOPED CLAIM REPORTING LEFT AND RIGHT KNEE PAIN DUE TO HEAVY PHYSICAL ACTIVITY DURING DEPLOYMENT TO AFGHANISTAN, DURING WHICH, THE VETERAN RECEIVED THE COMBAT ACTION BADGE.
A FEBRUARY 2021 PRIVATE TREATMENT RECORD DIAGNOSING QUADRICEPS TENDONITIS.
MARCH 2021 TESTIMONY INDICATING THE VETERAN DID A LOT OF HIKING AND WALKING UP MOUNTAINS, EXPERIENCED AN IED EXPLOSION, AND WAS IN SEVERAL MOTOR VEHICLE ACCIDENTS IN AFGHANISTAN.
Vito A. Clementi
Veterans Law Judge
Board of Veterans' Appeals
Attorney for the Board S. Reed, Counsel
The Board's decision in this case is binding only with respect to this matter. This action is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.