Citation Nr: 20022029 Decision Date: 03/30/20 Archive Date: 03/30/20 DOCKET NO. 13-45 059A DATE: March 30, 2020 REMANDED Entitlement to service connection for migraine headaches, to include as due to other disabilities is remanded. Entitlement to service connection for a lower back disability, to include as due to other disabilities, is remanded. Entitlement to service connection for a left knee disability, to include as due to an ankle/foot disability, is remanded. Entitlement to service connection for a right knee disability, to include as due to an ankle/foot disability, is remanded. Entitlement to service connection for a left ankle/foot disability is remanded. Entitlement to service connection for a right ankle/foot disability is remanded. Entitlement to service connection an acquired psychiatric disorder, to include as due to other disabilities, is remanded. REASONS FOR REMAND The Appellant served on active duty from September 1987 to November 1987, but as detailed below, the claims file currently includes inadequate service department documentation to verify these dates. The Appellant testified before the undersigned Veterans Law Judge (VLJ) in January 2018. The claims were remanded for further development by the Board of Veterans’ Appeals (Board) in March 2018. As an initial matter, the Board notes the Appellant’s claim of service connection was initially for a bilateral foot condition. The Board notes the Appellant’s service treatment records (STRs) note treatment for diagnoses for bilateral ankle conditions while seeking treatment for her foot conditions. Accordingly, the Board has recharacterized the claims for left and right foot disabilities, to include the foot and ankle disabilities. See Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). The Board notes the Appellant’s claims file does not contain her DD Form 214. As a result, the Appellant’s dates of service cannot be verified. In the previous March 2018 remand, the regional office (RO) was requested to obtain and associate with the record the Appellant’s DD Form 214. The request has not been attempted or completed upon review of the Appellant’s claims file. The claims must be remanded so the RO can comply with previous remand directives. Stegall v. West, 11 Vet. App. 268, 271 (1998). In accordance with the March 2018 remand, the Appellant was provided April 2019 VA examinations for her headache, bilateral knee, bilateral foot, and back service connection claims with the same medical professional. The examiner included a note with the negative nexus opinions, in which the examiner referenced the examination was limited by a language barrier because the Appellant may have had limitations in English comprehension. Due to the examiner’s note, the Board finds the Appellant should be afforded new headache, knee, foot, ankle, and back examinations with a translator in order to ensure a clear communication between the Appellant and examiner. 1. Entitlement to service connection for migraine headaches, to include as due to other disabilities is remanded. During the January 2018 hearing before the undersigned VLJ, the Appellant reported her headaches preexisted service and were aggravated by service. The Appellant’s STRs at enlistment are negative for any indication of a preexisting headache disability. An addendum opinion is necessary to determine if, as contended by the Appellant, the headaches clearly and unmistakably preexisted any active duty service, and, if so, was the disability clearly and unmistakably not aggravated by any active duty service. The April 2019 examiner provided a secondary service connection opinion to determine if the headaches were caused or aggravated by the Appellant’s ankle/foot, back, psychiatric, and bilateral knee conditions. The Board notes the examiner only addressed causation and failed to address whether the diagnosed conditions were aggravated by the other claimed disabilities. Upon remand, the examiner must also address aggravation in the opinion. 2. Entitlement to service connection for a lower back disability, to include as due to other disabilities is remanded. In the introduction to the examiner’s April 2019 medical opinions, the examiner notes the Appellant’s STRs include references to preexisting back pain. The Appellant’s STRs at enlistment are negative for any indication of a preexisting back disability. An addendum opinion is necessary to determine if, as alluded to by the April 2019 examiner, the back disability clearly and unmistakably preexisted any active duty service, and, if so, was the disability clearly and unmistakably not aggravated by any active duty service. The April 2019 examiner provided a secondary service connection opinion to determine if the back disability was caused or aggravated by the Appellant’s bilateral ankle/foot, headache, psychiatric, and bilateral knee conditions. The Board notes the examiner only addressed causation and failed to address whether the diagnosed conditions were aggravated by the other claimed disabilities. Upon remand, the examiner must also address aggravation in the opinion. 3. Entitlement to service connection for a bilateral knee disability, to include as due to an ankle/foot disability is remanded. During the January 2018 hearing before the undersigned VLJ, the Appellant reported her knees were broken preexisted service and the knees were aggravated by service. The April 2019 examiner noted the leg length discrepancy was part of an incident in her youth. The Appellant’s STRs at enlistment are negative for any indication of a preexisting knee or lower extremity disability. An addendum opinion is necessary to determine if, as contended by the Appellant, the leg length discrepancy clearly and unmistakably preexisted any active duty service, and, if so, was the disability clearly and unmistakably not aggravated by any active duty service. The April 2019 examiner provided a secondary service connection opinion to determine if the bilateral knee disability was caused or aggravated by the Appellant’s ankle/foot conditions. The Board notes the examiner only addressed causation and failed to address whether the diagnosed conditions were aggravated by the other claimed disabilities. Upon remand, the examiner must also address aggravation in the opinion. 4. Entitlement to service connection for a left and right ankle/foot disabilities is remanded. The Appellant was provided a VA examination in April 2019. As noted above, the VA examiner noted that a language barrier may have affected the Appellant’s comprehension during the examination. Clear communication is necessary in order for the VA examiner to obtain a complete history of symptomatology, and a description of current symptoms experienced by the examinee. Accordingly, a new examination, with a translator is necessary to ensure proper communication between the examiner and the Appellant. As noted above, the STRs show evidence of in-service ankle disabilities in concert with her foot disabilities. The Appellant’s description of her symptoms show that her claim is more accurately described as a claim for a bilateral ankle/foot disability. Clemons, supra. Previously, the VA has not provided the Veteran with an examination regarding any potential ankle disabilities; and therefore, an ankle examination is also necessary to determine the nature and etiology of any ankle/foot disabilities. 5. Entitlement to service connection an acquired psychiatric disorder, to include as due to other disabilities, is remanded. While no additional development medical evidence development is required in regard to this claim, a decision must be deferred pending development of the aforementioned service department evidence. The matters are REMANDED for the following action: 1. Contact the Appellant and request authorization to obtain any outstanding records pertinent to the claim, including any private treatment records following proper VA procedures (38 C.F.R. § 3.159(c)). 2. Obtain a complete copy of the Appellant’s military personnel file, to include those documents relevant to a determination of the Appellant’s character of discharge. The RO must also attempt to obtain the following documents: (a.) The Appellant’s record of service and/or the DD-214 noting the character of discharge for the Appellant’s active duty service; (b.) The Appellant’s DD Form 794A (Discharge Certificate Under Other Than Honorable Conditions); and, (c.) The Appellant’s Final DA Form 268 (Report of Suspension of Favorable Personnel Action). All attempts to secure this evidence must be documented in the claims file by the RO and VA facilities must provide a negative response if no records are available. If, after making reasonable efforts, the RO is unable to obtain the named records, the RO must notify the Appellant and (a) identify the specific records the RO is unable to obtain; (b) briefly explain the efforts that the RO made to obtain those records; (c) describe any further action to be taken by the RO with respect to the claim; and (d) that she is ultimately responsible for providing the evidence. The Appellant and her representative must then be given an opportunity to respond. All correspondence surrounding attempts to obtain these documents must be associated with the electronic record. 3. Arrange for the Appellant to undergo a VA examination with a qualified medical professional to determine the nature and etiology of any headache disability. A translator is requested to be provided. The claims file should be made available to the examiner for review in connection with the examination. All necessary tests and studies should be accomplished, and all pertinent symptoms and clinical findings should be reported in detail. Based on review of the record and examination of the Appellant, and after eliciting a detailed history of the Appellant’s conditions from the Appellant, the examiner should respond to the following: (a.) Identify and diagnose any current (at any point during appeal period) headache condition. Please also include a discussion of the validity of past diagnoses; (b.) For any diagnosed headache condition, provide an opinion as to whether such disorder clearly and unmistakably preexisted the Appellant’s active service; (c.) IF any diagnosed headache condition clearly and unmistakably preexisted active service, provide an opinion as to whether the diagnosed condition was clearly and unmistakably NOT aggravated beyond its natural progression by the Appellant’s active service; and (d.) IF any diagnosed headache condition did not clearly and unmistakably preexist active service, provide an opinion as to whether the diagnosed condition at least as likely as not (a 50 percent or greater probability) had its onset during or is otherwise related to any event or injury during the Appellant’s active service, or at least as likely as not was caused or aggravated (increased in severity beyond the natural progress of the disorder) by any diagnosed back, knee, ankle/foot, or psychiatric disabilities. All opinions must be supported by a detailed rationale, to include the Appellant’s lay contentions of in-service causation provided in January 2018 Correspondence, the January 2018 hearing, and August 2019 Correspondence. 4. Arrange for the Appellant to undergo a VA examination with a qualified medical professional to determine the nature and etiology of any back disability. A translator is requested to be provided. The claims file should be made available to the examiner for review in connection with the examination. All necessary tests and studies should be accomplished, and all pertinent symptoms and clinical findings should be reported in detail. Based on review of the record and examination of the Appellant, and after eliciting a detailed history of the Appellant’s conditions from the Appellant, the examiner should respond to the following: (a.) Identify and diagnose any current (at any point during appeal period) back condition. Please also include a discussion of the validity of past diagnoses; (b.) For any diagnosed back condition, provide an opinion as to whether such disorder clearly and unmistakably preexisted the Appellant’s active service; (c.) IF any diagnosed back condition clearly and unmistakably preexisted active service, provide an opinion as to whether the diagnosed condition was clearly and unmistakably NOT aggravated beyond its natural progression by the Appellant’s active service; and (d.) IF any diagnosed back condition did not clearly and unmistakably preexist active service, provide an opinion as to whether the diagnosed condition at least as likely as not (a 50 percent or greater probability) had its onset during or is otherwise related to any event or injury during the Appellant’s active service, or at least as likely as not was caused or aggravated (increased in severity beyond the natural progress of the disorder) by any diagnosed back, knee, ankle/foot, or psychiatric disabilities. All opinions must be supported by a detailed rationale, to include the Appellant’s lay contentions of in-service causation provided in January 2018 Correspondence, the January 2018 hearing, and August 2019 Correspondence. 5. Arrange for the Appellant to undergo a VA examination with a qualified medical professional to determine the nature and etiology of any knee disabilities, left and right. A translator is requested to be provided. The claims file should be made available to the examiner for review in connection with the examination. All necessary tests and studies should be accomplished, and all pertinent symptoms and clinical findings should be reported in detail. Based on review of the record and examination of the Appellant, and after eliciting a detailed history of the Appellant’s conditions from the Appellant, the examiner should respond to the following: (a.) Identify and diagnose any current (at any point during appeal period) knee condition. Please also include a discussion of the validity of past diagnoses; (b.) For any diagnosed knee condition, provide an opinion as to whether such disorder clearly and unmistakably preexisted the Appellant’s active service; (c.) IF any diagnosed knee condition clearly and unmistakably preexisted active service, provide an opinion as to whether the diagnosed condition was clearly and unmistakably NOT aggravated beyond its natural progression by the Appellant’s active service; and (d.) IF any diagnosed knee condition did not clearly and unmistakably preexist active service, provide an opinion as to whether the diagnosed condition at least as likely as not (a 50 percent or greater probability) had its onset during or is otherwise related to any event or injury during the Appellant’s active service, or at least as likely as not was caused or aggravated (increased in severity beyond the natural progress of the disorder) by any diagnosed ankle/foot disabilities. All opinions must be supported by a detailed rationale, to include the Appellant’s lay contentions of in-service causation provided in January 2018 Correspondence, the January 2018 hearing, and August 2019 Correspondence. 6. Arrange for the Appellant to undergo a VA examination with a qualified medical professional to determine the nature and etiology of any ankle/foot disabilities. A translator is requested to be provided. The claims file should be made available to the examiner for review in connection with the examination. All necessary tests and studies should be accomplished, and all pertinent symptoms and clinical findings should be reported in detail. Based on review of the record and examination of the Appellant, and after eliciting a detailed history of the Appellant’s conditions from the Appellant, the examiner should respond to the following: (a.) Identify and diagnose any current (at any point during appeal period) ankle and foot conditions. Please also include a discussion of the validity of past diagnoses; (b.) For any diagnosed foot condition that preexisted active duty service according to STRs, provide an opinion as to whether the diagnosed condition was clearly and unmistakably NOT aggravated beyond its natural progression by the Appellant’s active service; and (c.) For any diagnosed ankle and foot conditions that did not preexist active service, provide an opinion as to whether the diagnosed condition at least as likely as not (a 50 percent or greater probability) had its onset during or is otherwise related to any event or injury during the Appellant’s active service. All opinions must be supported by a detailed rationale, to include the Appellant’s lay contentions of in-service causation provided in January 2018 Correspondence, the January 2018 hearing, and August 2019 Correspondence. A. C. MACKENZIE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. N. Quarles, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.