Citation Nr: 18147269 Decision Date: 11/02/18 Archive Date: 11/02/18 DOCKET NO. 16-40 545 DATE: November 2, 2018 ORDER Entitlement to service connection for headaches is granted. REMANDED Entitlement to service connection for a right knee disability is remanded. Entitlement to service connection for a left knee disability is remanded. FINDING OF FACT Resolving all reasonable doubt in his favor, the Veteran’s headache disability is related to his active service. CONCLUSION OF LAW The criteria for service connection for headaches are met. 38 U.S.C. §§ 1110, 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 1987 to August 1992. A February 2014 rating decision denied service connection for headaches, right knee disability and left knee disability. The Veteran filed a notice of disagreement (NOD) in February 2014 and a statement of the case (SOC) was issued in August 2016. Although the Veteran limited his August 2016 VA Form 9, substantive appeal, to the headache issue, the Board accepts his representative’s September 2016 VA Form 646, Statement of Accredited Representative in Appealed Case, in lieu of a VA Form 9 for the right and left knee issues. On this form, the Veteran (through his representative) clearly indicated his continued disagreement with the August 2016 SOC as to headache issue as well as the knee issues. Thus, his intent to appeal the right and left knee issues is not in doubt. Moreover, the Regional Office (RO) has not suggested, and the record does not reflect, that the September 2016 communication was untimely or that it could not be accepted in lieu of a VA Form 9. See Percy v. Shinseki, 23 Vet. App. 37, 45 (2009). Service Connection for Headaches Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active duty. 38 U.S.C. § § 1110, 1131; 38 C.F.R. § 3.303. With an approximate balance of positive and negative evidence on a relevant issue, VA resolves reasonable doubt in the claimant’s favor. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518 (1996). The Veteran claims that he has a chronic headache disability as a result of his military service. He contends that his current headache disability first manifested during his period of active service and has continued since that time. See February 2014 NOD, and April 2014 and August 2016 correspondence from the Veteran. That the Veteran has a current diagnosis of headaches is not in dispute. See May 2014 private treatment record and January 2014 VA examination report. Thus, the current disability requirement is met. After having carefully reviewed the record, weighing the evidence both in support of and against the claim, and resolving reasonable doubt in favor of the Veteran, the Board finds that the evidence is in relative equipoise as to whether the Veteran has a headache disability related to his military service. In this regard, the Veteran’s service treatment records dated from 1987 to 1992 include an August 1992 report of medical history, wherein he complained of frequent (about twice weekly) headaches for the past several years. The record also establishes that the Veteran has credibly and consistently maintained that he has had headaches since service. His statements establish chronic headaches since service. See 38 U.S.C. § 1110, 1131; 38 C.F.R. § 3.303(a); Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); Charles v. Principi, 16 Vet. App. 370 (2002). There is no evidence to refute these statements. In fact, the Veteran submitted statements from two fellow service members in March 2014, who both reported that the Veteran regularly complained of headaches in service but refused to go to sick call, preferring instead to focus on his duties. The Board acknowledges that a January 2014 VA examiner opined that the Veteran did not have headaches related to service. The VA examiner’s conclusion is a medical conclusion that the Board cannot ignore or disregard (see Willis v. Derwinski, 1 Vet. App. 66 (1991)); however, the Board is free to assess medical evidence and is not compelled to accept a medical opinion. See Wilson v. Derwinski, 2 Vet. App. 614 (1992). The Board notes that the 2014 VA examiner did not consider the lay statements in the record and instead relied solely on an absence of evidence in the record to form her negative opinion. Resolving all doubt in the Veteran’s favor, service connection for headaches is granted. See 38 C.F.R. § 3.102; Gilbert, supra. REASONS FOR REMAND Service connection for Right Knee and Left Knee Disabilities Regarding the claims of entitlement to service connection right and left knee disabilities, remand is required for a VA examination. VA has a duty to assist claimants to obtain evidence needed to substantiate a claim. See 38 U.S.C. § 5103A; 38 C.F.R. § 3.159; McLendon v. Nicholson, 20 Vet. App. 79, 83-86 (2006). Here, the Veteran has essentially contended that these conditions arose in service and have persisted on an ongoing basis since that time. See February 2014 NOD. He has also submitted a statement from a fellow service member who remembered the Veteran’s knee complaints in service. See March 2014 buddy/lay statement. Accordingly, a VA examination is required. The matters are REMANDED for the following actions: 1. Contact the Veteran and afford him the opportunity to identify by name, address and dates of treatment or examination any relevant medical records. Subsequently, and after securing the proper authorizations where necessary, make arrangements to obtain all the records of treatment or examination from all the sources listed by the Veteran which are not already on file. All information obtained must be made part of the file. All attempts to secure this evidence must be documented in the claims file, and if, after making reasonable efforts to obtain named records they are not able to be secured, provide the required notice and opportunity to respond to the Veteran and his representative. 2. After any additional records are associated with the claims file, afford the Veteran an appropriate VA examination to determine the nature and etiology of all current right and left knee disabilities. The entire claims file must be made available to and be reviewed by the examiner. All necessary tests should be completed. An explanation for all opinions expressed must be provided. The examiner must provide the following opinion: Whether it is at least as likely as not (50 percent or greater probability) that any current right knee disability and left knee disability had its onset in, or is otherwise caused by, active service. The examiner must address the Veteran’s statements and the March 2014 lay statement of record that knee disabilities were present in service and have persisted since service. The examiner must explain the rationale for any opinion given. If the examiner is unable to provide an opinion without resorting to speculation, he/she should so state and provide an explanation as to the reason(s) therefor. A. ISHIZAWAR Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD K.R.Fletcher, Counsel