Citation Nr: 20022096 Decision Date: 03/30/20 Archive Date: 03/30/20 DOCKET NO. 17-12 699 DATE: March 30, 2020 REMANDED 1. Entitlement to service connection for left knee condition, to include as secondary to service-connected shin splints is remanded. 2. Entitlement to service connection for headaches is remanded. REASONS FOR REMAND The Veteran served on active duty from June 2006 to June 2007. This case comes to the Board of Veteran’s Appeals (Board) on appeal from a May 2014 rating decision by the Department of Veteran’s Affairs (VA) Regional Office in Jackson, Mississippi. 1. Entitlement to service connection for left knee disorder, to include as secondary to service-connected shin splints, is remanded. Remand is required for an adequate VA examination and opinion. Where, as here, VA undertakes to provide an examination or obtain an opinion when developing a claim, even if not statutorily obligated to do so, it must provide an adequate one. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). A medical opinion must be supported by an analysis that the Board can consider and weigh against contrary opinions. Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). In a secondary service connection claim, a medical opinion that a disorder is not the result of an already service-connected disability does not address the issue of aggravation. El-Amin v. Shinseki, 26 Vet. App. 136, 140-41 (2013). In a January 2014 claim for compensation, the Veteran asserted that his knee condition was secondary to his shin splints. The Veteran also reiterated his claim for direct service connection for his knee condition in a January 2020 correspondence letter. The Veteran was provided three VA examinations for knee and lower leg conditions in April 2014, December 2015, and November 2019. Only the April 2014 exam addressed the Veteran’s knee condition. The December 2015 and November 2019 exams were performed with the purpose of evaluating the Veteran’s shin splints, without addressing a correlation between the shin splints and the Veteran’s knee condition. The Veteran was diagnosed with left anterior cruciate ligament/medial collateral ligament tear in the April 2014 VA examination. The examiner opined the Veteran’s knee condition is less likely than not proximately due to or the result of active duty service and that “the left shin pain is also not a factor in the cause of the left knee basketball injury.” Here, the examiner failed to provide a rationale for his statement and also failed to opine as to whether the Veteran’s knee condition was aggravated by his service-connected shin splints. Remand is therefore required in order to obtain an adequate opinion. 2. Entitlement to service connection for headaches is remanded. Remand is required for an adequate exam. Every Veteran shall be taken to have been in sound condition when accepted for service except as to defects, infirmities, or disorders noted at the time of acceptance; or, where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment, and was not aggravated by the Veteran’s period of active service. 38 U.S.C. § 1111; 38 C.F.R. § 3.304 (b). When no preexisting condition is noted upon entry into service, the Veteran is presumed to have been sound upon entry. To rebut the presumption of soundness, the burden falls on VA to demonstrate with clear and unmistakable evidence both that the disease or injury existed prior to service, and that the disease or injury was not aggravated by service. 38 C.F.R. § 3.304 (b); VAOPGCPREC 3-03, 69 Fed. Reg. 25178 (2004); Wagner v. Principi, 370 F.3d 1089, 1093 (Fed. Cir. 2004). The government may show a lack of aggravation by establishing that there was no increase in disability during service or that any increase in disability was due to the natural progression of the preexisting condition. 38 U.S.C. § 1153. If this burden is met, then the Veteran is not entitled to service-connected benefits. If, however, the government fails to rebut the presumption of soundness, the Veteran’s claim is one for service connection rather than service aggravation, and no deduction for the degree of disability existing at the time of entrance will be made if a rating is awarded. Wagner, 370 F.3d at 1096. The Veteran was diagnosed with headaches in an April 2014 VA examination. The examiner noted, however, that the Veteran reported that his headaches began in childhood and worsened due to service. The examiner performed the examination under the assumption that the Veteran’s headaches were a pre-existing condition and stated that, absent an in-service head injury, he could only speculate whether the Veteran’s service aggravated his headaches. The Veteran’s headache condition was not noted in his entrance examination. There is no medical evidence of the existence or treatment of this condition prior to the Veteran’s active duty service. The Veteran also stated in his January 2018 DRO hearing and his January 2020 correspondence letter that his headaches started during and as a result of his active duty service. There is no indication that the Veteran had a headache condition prior to service outside of the April 2014 VA examination. Due to the lack of medical evidence and conflicting lay testimony, the presumption of soundness is not rebutted. A medical opinion based upon an inaccurate factual premise has no probative value. Reonal v. Brown, 5 Vet. App. 458, 461 (1993). As such, remand is required in order to obtain an adequate VA examination for a direct service connection for the Veteran’s headaches. In the January 2020 correspondence letter, the Veteran emphasized that he requested a direct service connection and not a secondary service connection to his shin splints as stated in the December 2019 SSOC.   The matters are 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. 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. 3. After any additional records are associated with the claims file, provide the Veteran with an appropriate examination to determine the etiology of his left knee disorder. 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 left knee disorder had its onset in, or is otherwise related to, active military service. b) The examiner must also provide an opinion whether it is at least as likely as not (50 percent or greater probability) that the left knee disorder is caused or aggravated by his service-connected shin splints. c) The examiner must address the Veteran’s lay contentions regarding his sustained knee pain as well as the correlation between his shin splints and knee condition. The examiner must also specifically address the comments regarding the Veteran’s in-service knee injury contained in the Veteran’s STRs. 4. After any additional records are associated with the claims file, provide an appropriate examination to determine the etiology of the headaches. 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 opinion 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 his headaches had their onset in, or is otherwise related to, active military service. The examiner must presume that the Veteran was sound at entrance. b) The examiner must specifically address the Veteran’s lay contentions regarding the onset and cause of his headaches as provided in the January 2018 DRO hearing transcript as well as the Veteran’s January 2020 correspondence letter. 5. 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 (2019). 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. K. MILLIKAN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Ashley Ki 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.