Citation Nr: 1803736 Decision Date: 01/19/18 Archive Date: 01/29/18 DOCKET NO. 13-26 017 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to service connection for a lumbar spine disorder. 2. Entitlement to service connection for a right knee disorder. 3. Entitlement to service connection for tension headaches. REPRESENTATION Veteran represented by: North Carolina Division of Veterans Affairs WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Steve Ginski, Associate Counsel INTRODUCTION The Veteran served on active duty from March 1988 to May 1992. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. The Veteran presented testimony before the undersigned Veterans Law Judge in a July 2016 Travel Board hearing. A transcript of the hearing has been associated with the record. Thereafter, the Board remanded these claims for additional development in September 2016. This appeal was processed using Virtual VA and the Veterans Benefits Management System (VBMS) and the Legacy Content Manager (LCM). LCM contains additional VA treatment records and documents that are either duplicative of the evidence in VBMS or not relevant to the issue on appeal. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required REMAND Remand is required to provide adequate opinions. Where VA provides the veteran with an examination, the examination must be adequate. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (noting that a medical opinion must support its conclusion with an analysis). Further, when the Veteran has provided lay testimony of an in-service event, an examiner cannot ignore that lay evidence and base his or her opinion that there is no relationship to service on the absence of in-service corroborating medical records. Dalton v. Nicholson, 21 Vet. App. 23, 39-40 (2007). Last, a Board remand confers upon an appellant the right to compliance with that order. Stegall v. West, 11 Vet. App. 268, 271 (1998). Here, the June 2017 VA opinions are inadequate. By way of history, in his September 2009 claim, the Veteran described carrying heavy rounds for a mortar platoon during his service. With these rounds in his pack, he jumped from a helicopter, hyperextending his knee when he landed. The Veteran indicated that the pain was excruciating when he started to run. In addition to hyperextending his knee, the Veteran reported that heavy ammunition rounds in his backpack struck his head and low back during his in-service accident, suffering injuries. During service, the Veteran served as medical corpsman. The Veteran Also reported that his headaches occur when his fatigue sets in. The Board notes that service connection for asthma (claimed as fatigue) was granted in 2011. EL, a fellow service-member, submitted statements in September 2010 and July 2016. EL reported serving with the Veteran from June 1990 until May 1992 in Iraq and described witnessing the Veteran injuring his right knee, low back, and head when jumping out of an airborne helicopter during an operation. An August 2011 Gulf War examination was conducted. The examiner diagnosed degenerative arthritis of the right knee, a lumbar strain, and tension headaches. The examiner only opined regarding whether the diagnosed disorders were related to his Gulf War service, not to any other incident of service. During the July 2016 Board hearing, the Veteran testified as to the nature of his knee, back, and head injuries during service. He also noted that, as a medical corpsman, he self-treated his injuries after their incurrence. He indicated there were no medical records of his injuries because he was in the field in a major operation. The September 2016 Board remand directives requested that the Veteran's statements describing his in-service injury, as well as his medical expertise as a medical corpsman during service, be addressed by any opining VA examiner on remand. VA provided an examination in June 2017. The examiner diagnosed lumbar strain, tension headaches, and right knee joint osteoarthritis and provided negative nexus opinions regarding all three disabilities. Regarding the low back disorder, the examiner simply noted that there were no symptoms, treatment, or diagnosis of a low back condition during the Veteran's active duty and that a May 1992 separation examination, an evaluation of the spine was normal. Regarding the right knee disorder, the examiner explained that there were no symptoms, treatment, or diagnosis of a right knee during the Veteran's active service and there was a normal evaluation of the lower extremity in the May 1992 separation examination. The examiner also cited to the post-service private treatment note from July 2009 showing a fall in the airport while walking up a staircase, striking his right knee, and an April 2012 x-ray report that showed degenerative arthritis of the right knee as a result of the reported falls that injured the right knee in 2009. Regarding the headaches, the examiner cited to a series of STRs as rationale. Specifically, in September 1989, the Veteran was treated for a runny nose with a headache. He was diagnosed with allergic rhinitis. In November 1989, he sought treatment for a sore throat with a headache. The treatment records from service were otherwise silent for any other complaints, treatment, or diagnosis of tension headaches. The examiner also explained that there was no evidence of a continuing occurrence of tension headaches after the Veteran separated from service. These opinions are inadequate because they do not account for the Veteran's competent lay statements and because they do not comply with the September 2016 Board remand directives. As a medical corpsman, his statements regarding the nature of his injuries and symptoms are deemed more competent than that of a lay person. Beginning with diagnosed lumbar strain, the Veteran has competently described sustaining a low back injury during his service. The Veteran also testified that his low back symptoms persisted after he left service. The same is true of the Veteran's claimed right knee disorder. During the 2016Board hearing, the Veteran noted that the injuries sustained to the right knee in 2009 were not when his right knee symptoms started. He testified that a hiking injury was a flare-up of his right knee disorder. Regarding headaches, the Veteran has indicated that headaches would intermittently affect him since his head injury in service. The examiner's rationale does not address these statements. Thus, it is not possible to ascertain whether the examiner presumed the Veteran's statements competent for purposes of the June 2017 examination, as directed by the September 2016 Board remand. Finally, as noted above, the Veteran has suggested a temporal relationship between his headaches and episodes of fatigue. The Veteran's claim of entitlement to service connection for fatigue was eventually recharacterized as a claim of entitlement to service connection for asthma and granted in the September 2011 rating decision. Thus, any opinion rendered on remand must address whether headaches are secondarily related to asthma, a service-connected condition. Accordingly, the case is REMANDED for the following action: 1. Contact the appropriate VA Medical Center and obtain and associate with the claims file all outstanding records of treatment. 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 Veteran and his or her representative. 2. After any additional records are associated with the claims file, arrange for a qualified medical professional to provide an opinion in order to determine the etiology of the Veteran's diagnosed right knee osteoarthritis and lumbar strain. If possible, the opinions should be provided by a professional who has not previously addressed these issues. If deemed necessary, arrange for an examination to be conducted. The entire claims file must be made available to and be reviewed by 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. An explanation for all opinions expressed must be provided. The examiner must provide an opinion regarding whether it is at least as likely as not (50 percent or greater probability) that the right knee disorder and/or lumbar spine disorder had onset in, or were otherwise caused by active military service. The examiner must address the following: 1) the Veteran's service treatment records (STRs); 2) the May 2012 statement and July 2016 Board testimony indicating that his current right knee and lumbar spine disorders are due to his knee locking upon landing from jumping out of a hovering helicopter while wearing approximately 120 pounds of equipment, and that his lumbar spine disorder is due to sustaining an injury after being struck in the lumbar spine by heavy equipment in the same incident; and 3) the Veteran's statements describing continuing knee and back symptomatology since his military service. The examiner must presume that the Veteran's statements are competent for purposes of this examination, as the Veteran was a medical corpsman during service. 3. After any additional records are associated with the claims file, arrange for a qualified medical professional to provide an opinion in order to determine the etiology of the Veteran's diagnosed headaches. If possible, the opinions should be provided by a professional who has not previously addressed these issues. If deemed necessary, arrange for an examination to be conducted. The entire claims file must be made available to and be reviewed by 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. An explanation for all opinions expressed must be provided. a. The examiner must provide an opinion regarding whether it is at least as likely as not (50 percent or greater probability) that the headaches had onset in, or were otherwise caused by active military service. The examiner must address the following: 1) the Veteran's service treatment records (STRs); 2) the May 2012 statement and July 2016 Board hearing testimony that his headache disorder is due to his knee locking upon landing from jumping out of a hovering helicopter while wearing approximately 120 pounds of equipment, ultimately causing heavy ammunition to strike his head; and 3) the Veteran's statements describing continuing headache symptoms since his military service. b. The examiner must provide an opinion regarding whether it is at least as likely as not (50 percent or greater probability) that the Veteran's headaches are caused by his service-connected asthma (also claimed as fatigue). c. The examiner must provide an opinion regarding whether it is at least as likely as not (50 percent or greater probability) that the Veteran's headaches are aggravated by his service-connected asthma (also claimed as fatigue). The examiner must address the Veteran's September 2009 statements in his claim that describe the onset of headaches being close in proximity to episodes of fatigue. The examiner must presume that the Veteran's statements are competent for purposes of this examination, as the Veteran was a medical corpsman during service. 4. Notify the Veteran that it is his responsibility to report for any scheduled examination and to cooperate in the development of the claims, and that the consequences for failure to report for a VA examination without good cause may include denial of the claims. 38 C.F.R. §§ 3.158, 3.655 (2017). In the event that the Veteran does not report for any scheduled examination, documentation must be obtained which shows that notice scheduling the examination was sent to the last known address. It must also be indicated whether any notice that was sent was returned as undeliverable. 5. Ensure compliance with the directives of this remand. If a report is deficient in any manner, implement corrective procedures. Stegall v. West, 11 Vet. App. 268, 271 (1998). 6. After completing the above action, and any other development as may be indicated by any response received as a consequence of the actions taken in the paragraphs above, the claims must be readjudicated. If the claims remain denied, a supplemental statement of the case must be provided to the Veteran and his representative. After the Veteran and his representative have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. The Veteran has the right to submit additional evidence and argument on the 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 2014). ______________________________________________ K. MILLIKAN Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), 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) (2017).