Citation Nr: 18144399 Decision Date: 10/24/18 Archive Date: 10/24/18 DOCKET NO. 13-05 265 DATE: October 24, 2018 REMANDED Entitlement to a rating in excess of 10 percent for post-operative residuals of a double mandible fracture is remanded. Entitlement to a rating exceeding 10 percent for right knee chondromalacia is remanded. Entitlement to service connection for migraines is remanded. REASONS FOR REMAND The Veteran served on active duty from January 1973 to February 1976. The Veteran appeals a September 2010 rating decision from the Department of Veteran Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In November 2016, the Board remanded the instant appeals. The Veteran’s representative withdrew his Board hearing request in March 2016. See March 2016 Statement in Support of Claim. In November 2016, the Board remanded the issues of service connection for migraines headaches as well as increased ratings for right knee chondromalacia and for post-operative residuals of a mandible double fracture for additional development and then the issuance of a supplemental statement of the case (SSOC). The record indicates that an SSOC was not issued after the Board’s November 2016 remand and before the appeals were returned to the Board. Compliance with remand directives by the originating agency is not optional or discretionary and the Board errs as a matter of law when it fails to ensure remand compliance. Stegall v. West, 11 Vet. App. 268 (1998). The appeal must again be remanded for compliance with the Board’s remand directives. I. Right Knee Chondromalacia A new VA examination is warranted for two reasons. First, the evidence of record indicates that the Veteran’s right knee chondromalacia may have worsened since the last examination in August 2010. VA clinical records after the August 2010 VA examination find that the Veteran continued to complain of chronic right knee, or bilateral knee pain. In March 2011, two neighbors reported witnessing the Veteran’s knee go out on him on several occasions. A June 2013 VA medical treatment note indicated that the Veteran’s right knee buckled. An October 2014 VA medical treatment note reflected the Veteran’s reports that he had bilateral knee pain and he could only walk short distances before the pain becomes intolerable. The Board notes that the August 2010 VA examination report did not find objective evidence of right knee instability. Finally, the August 2010 VA examination is silent on the Veteran's pain regarding weight-bearing and nonweight-bearing motion as required by Correia v. McDonald, 28 Vet. App. 158, 170 (2016). Therefore, in light of the record suggesting a possible worsening of the Veteran’s right knee chondromalacia as well as the requirements imposed by the Correia decision, the Board finds that a remand is necessary in order to conduct another VA examination. See, e.g., Snuffer v. Gober, 10 Vet. App. 400 (1997). II. Migraines In an August 2017 VA examination report, the VA examiner opined that there was no evidence of record of migraine complaints, diagnoses or treatment while in service and that there was one acute and transient episode of symptomatic headaches in May 1974 due to sinusitis. The examiner further opined that there was no evidence, diagnosis or treatment for a primary or secondary headache disorder in service or within one year of separation from service and that the December 1977 notation was a working diagnosis that was over one-year post-service. However, the examiner did not consider the Veteran’s reports that his migraine symptoms began during service. See, e.g., Dalton v. Nicholson, 21 Vet. App. 23 (2007) (an examination was inadequate where the examiner did not comment on a Veteran’s reports of in-service injury and instead relied on the absence of evidence in a Veteran’s service treatment records to provide a negative opinion). On remand, an addendum opinion should be obtained to determine the etiology of the Veteran’s claimed migraines. Finally, the Veteran should also be asked to furnish, or to furnish an authorization to enable VA to obtain, any additional private treatment records from providers who treated him for his claimed disorders. Additionally, given the time that will pass during the processing of this remand, updated VA treatment records should be associated with the record. The matter is REMANDED for the following action: 1. The Veteran should be given an opportunity to identify any outstanding private or VA treatment records relevant to the claims on appeal. After obtaining any necessary authorization from the Veteran, all outstanding records should be obtained. These VA treatment records include updated VA treatment records dated from August 2017 to the present. For private treatment records, make at least two (2) attempts to obtain records from any identified sources. If any such records are unavailable, inform the Veteran and afford her an opportunity to submit any copies in his possession. For federal records, all reasonable attempts should be made to obtain such records. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 2. After the completion of the above development and following the receipt of any outstanding records, schedule the Veteran for VA examination determine the current nature and severity of his service-connected right knee chondromalacia. The claims file must be made available to the examiner for review in connection with the examination. Any medically indicated tests, such as x-rays, should be accomplished. Regarding the right knee examination, the examiner should report all signs and symptoms necessary for evaluating the Veteran’s disability under the Schedule for Rating Disabilities, including the frequency, severity, and duration of such symptoms. The examiner should provide the range of motion in degrees for the right knee. In so doing, the examiner should test the right knee range of motion in active motion, passive motion, weight-bearing, and nonweight-bearing. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain so in the report. With regard to range of motion testing, the examiner should report at what point (in degrees) pain is elicited as well as whether there is any other functional loss due to weakened movement, excess fatigability or incoordination. These determinations must be expressed in terms of the additional limitation of motion in approximate degrees due to each functional factor that is present. The examiner should report on whether there is functional loss due to limited strength, speed, coordination or endurance. The examiner should also estimate any additional loss of function during periods of flare-up, expressed in degrees of lost motion. Such estimate can be based on the Veteran's description of his limitations during such periods, so that an estimate should be provided, if at all possible, even in the absence of direct observation by the examiner. The examiner is advised that the Veteran is competent to report limitation during flare-ups. The examiner who conducts the right knee examination should state whether there is lateral instability or recurrent subluxation of the right knee, and, if so, whether the instability is best characterized as slight, moderate, or severe. The examiner should state whether there is dislocated or removed semilunar cartilage, and, if so, the nature of the symptoms associated with such meniscus impairment. The examiner should also provide an opinion concerning the impact of the Veteran's disability on his occupational functioning. The examiner should describe the types of limitations the Veteran experiences as a result of his disability. The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinions. 3. After the receipt of any outstanding treatment records, return the claims file, to include a copy of this remand, to the August 2017 VA examiner for an addendum opinion. If the examiner who drafted the August 2017 opinion is unavailable, the opinion should be rendered by another appropriate medical professional. The need for another examination is left to the discretion of the medical professional offering the addendum opinion. Following a review of the claims file, the examiner is asked to furnish an opinion with respect to the following questions: (a) For the diagnosed migraines, the examiner should offer an opinion as to whether it is at least as likely as not (50 percent or greater probability) that such disorder had its onset during the Veteran’s period of active duty service or was caused by any incident or event that occurred during his period of service. The examiner should specifically address the Veteran’s reports that his symptoms began during service as well as the May 1974 treatment for headaches. (b) The examiner should offer an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s migraines had its onset within one year of service separation. In offering any opinion, the examiner should consider the full record, to include the Veteran’s lay statements regarding the onset of his migraines symptoms in service and continuity of symptomatology after service. The examiner should find the Veteran’s lay statements regarding the symptoms he had in service to be credible unless there are affirmative contrary findings in the record. A complete rationale should be given for each opinion expressed. In this regard, a discussion of the facts and medical principles involved would be considerable assistance to the Board. 4. Then, readjudicate the issues on appeal. If any benefit sought on appeal remains denied, provide the Veteran and his representative with a supplemental statement of the case and afford them the requisite opportunity to respond before the case is returned to the Board for further appellate action. Kristy L. Zadora Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Timothy A. Campbell, Associate Counsel