Citation Nr: 0811332 Decision Date: 04/04/08 Archive Date: 04/14/08 DOCKET NO. 04-19 901 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Seattle, Washington THE ISSUES 1. Entitlement to service connection for retropatellar pain syndrome of the right knee. 2. Entitlement to service connection for tension headaches. REPRESENTATION Appellant represented by: Washington Department of Veterans Affairs ATTORNEY FOR THE BOARD A. Barone, Associate Counsel INTRODUCTION The veteran had active duty service from February 1992 to October 1996 and from March 1997 to March 2000. This matter comes before the Board of Veterans' Appeals (Board) on appeal originally from an October 2002 rating decision of a Regional Office (RO) of the Department of Veterans Affairs (VA). Within a year of that decision, a May 2003 rating decision was also issued by the RO on the same issues. This matter was previously before the Board in August 2007, when several issues on appeal were resolved with final decisions, but the two issues remaining on appeal were remanded for additional development. The Board also notes that the veteran's May 2004 substantive appeal submission contained the veteran's request for an opportunity to testify at a Travel Board hearing. The veteran was scheduled to testify at a May 2007 Travel Board hearing and was notified of this in an April 2007 letter; however, the veteran failed to report for the hearing. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND In August 2007, the Board remanded the two issues remaining on appeal to afford the veteran an opportunity for new VA examinations addressing critical medical questions in these matters. As discussed in more detail below, the Board found that the evidence of record showed pertinent treatment during service, pertinent treatment shortly following service, and indications of possibly pertinent current diagnoses. The Board also noted that new pertinent medical evidence had been added to the record subsequent to the most recent VA examination report of record. In accordance with the August 2007 Board remand's instructions, the RO took appropriate steps to schedule the veteran for the new VA examinations in September 2007, and the veteran failed to report for the examinations. An additional opportunity was afforded to the veteran in November 2007 and she again failed to report. In January 2008, the veteran submitted a letter credibly explaining that she was unable to report for any additional VA examinations as she faced substantial difficulty making herself available for, or obtaining transportation to, such examinations. Although it appears that additional VA medical examination of the veteran is not possible, the Board believes that there remains highly significant medical evidence in the claims folder raising medical questions which require competent medical opinions to resolve. As discussed below, both issues on appeal involve medical questions which may be meaningfully addressed by a medical expert informed by a review of the claims folder, regardless of whether the veteran personally reports for an examination. Thus, after some consideration, the Board believes that a remand to obtain the lacking medical opinions is the most reasonable action at this time to ensure fair consideration of the veteran's claims on appeal. Entitlement to service connection for retropatellar pain syndrome of the right knee The April 2003 VA examination report shows a diagnosis of right knee retropatellar pain syndrome. In its August 2007 remand, the Board observed that the April 2003 VA examiner did not offer an etiology opinion regarding the likelihood that this diagnosis was a chronic disability causally related to the veteran's service. The Board further observed that the there is evidence of right knee symptoms during the veteran's service, including November 1993 and December 1993 consultations regarding right knee pain and a right knee injury. Moreover, there is evidence of right knee treatment in private medical records following service; the private medical records showing post-service right knee treatment were not of record and not available for review at the time of the April 2003 VA examination. A July 2001 private treatment note shows that the veteran was concerned about right knee symptoms including swelling. One of the May 2002 private treatment notes shows that meniscal crepitus was detected in the veteran's right knee at that time. A November 2002 private report shows a diagnosis of "mild right knee edema with crepitus probable patellofemoral dysfunction." The Board believes that obtaining a medical etiology opinion is of critical importance for this issue, regardless of whether the veteran is willing to report for a new VA examination. An appropriate medical opinion based upon review of the expanded record would be essential to completing proper appellate review of this matter. In light of the evidence of record indicating a right knee injury during service, treatment for a right knee injury shortly following discharge, and a current diagnosed right knee disability, the Board believes that a remand for an etiology opinion is necessary to afford the veteran proper consideration with regard to this appeal issue. Entitlement to service connection for tension headaches The April 2003 VA examination report shows a finding of intact cranial nerves with a diagnosis of "tension headaches." In its August 2007 remand, the Board observed that the April 2003 VA examiner did not clearly discuss whether this diagnosis pertains to a chronic pathology or a propensity for acute attacks. Furthermore, the April 2003 VA examination report does not offer an etiology opinion regarding the likelihood that this diagnosis is causally related to the veteran's service. The Board further observes that there is evidence of documented headache complaints during the veteran's service, including in January 1993, in September 1993, in November 1993, in April 1995, and in February 2000. Moreover, there is evidence regarding headache symptoms and a medical assessment of migraine headaches in private medical records following service, including in May 2001, May 2002, November 2002, and December 2002; the medical assessment of "probable migraine" is documented in the November 2002 report. The Board believes that obtaining a medical etiology opinion is of critical importance for this issue, regardless of whether the veteran is willing to report for a new VA examination. An appropriate medical opinion based upon review of the evidence of the record would be essential to completing proper appellate review of this matter. In light of the evidence of record indicating a pattern of headache treatment during service, treatment for headache problems shortly following discharge, and suggestions of a pertinent post-service diagnosis, the Board believes that a remand for an etiology opinion is necessary to afford the veteran proper consideration with regard to this appeal issue. Accordingly, the case is REMANDED for the following actions: 1. The veteran's claims folder should be forwarded to an appropriate VA medical examiner for review in developing a medical opinion as to the nature and etiology of her claimed right knee disability. After reviewing the claims file, the specialist should respond to the following: a) Please clearly identify all diagnoses of current, chronic disability for the right knee shown in the evidence of record. b) Is it at least as likely as not (a 50% or higher degree of probability) that the veteran currently suffers from any chronic right knee disability that was caused by or aggravated by the veteran's active duty service? c) In answering the above, please address the medical records indicating right knee treatment during service (November 1993 and December 1993) and following service (July 2001, May 2002, November 2002, and April 2003). 2. The veteran's claims folder should be forwarded to an appropriate VA medical examiner for review in developing a medical opinion as to the etiology of her claimed headaches. After reviewing the claims file, the specialist should respond to the following: a) Please clearly identify all diagnoses of current, chronic disease manifesting in headache symptoms which can be identified from the medical evidence of record. b) Is it at least as likely as not (a 50% or higher degree of probability) that the veteran currently suffers from a chronic headache pathology that was caused by or permanently aggravated by the veteran's active duty service? c) In answering the above, please address the medical records indicating headache symptoms during service (January 1993, September 1993, November 1993, April 1995, and February 2000) and following service (May 2001, May 2002, November 2002, December 2002, and April 2003). 3. After completion of the above and any additional development deemed necessary by the RO, the RO should review and readjudicate the issues remaining on appeal. If any of the claims remain denied, the appellant and her representative should be furnished an appropriate supplemental statement of the case and be afforded an opportunity to respond. Thereafter, the case should be returned to the Board for appellate review. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet.App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2007). _________________________________________________ ALAN S. PEEVY Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2007).