Citation Nr: 20041340 Decision Date: 06/17/20 Archive Date: 06/17/20 DOCKET NO. 16-30 626 DATE: June 17, 2020 REMANDED Entitlement to service connection for headaches is remanded. Entitlement to service connection for an acquired psychiatric disorder is remanded. REASONS FOR REMAND The Veteran served in the United States Army from May 1982 to July 1982, and from November 1982 to February 1985. In November 2018, a Veterans’ Law Judge other than the undersigned denied, among other things, the Veteran’s claims of service connection for headaches and an acquired psychiatric disorder. The claimant appealed the November 2018 Board of Veterans’ Appeal (Board) decision to the United States Court of Appeals for Veterans Claims (Court). In a subsequent November 2019 order, the Court adopted the parties November 2019 Joint Motion for Partial Remand (JMPR) and vacated and remanded the November 2018 Board decision to the extent that it denied service connection for headaches and an acquired psychiatric disorder. Entitlement to service connection for headaches and an acquired psychiatric disorder are remanded. The Veteran asserts that his headaches and acquired psychiatric disorder are due to military service and/or the pain caused by his service-connected bilateral knee disabilities. In this regard, the Board finds neither Dr. Heather Henderson-Galligan’s July 2017 and October 2019 opinion as to there being a link between the pain caused by the Veteran’s service-connected bilateral knee disabilities and his current acquired psychiatric disorder and Dr. Homer Skaggs October 2017 opinion as to there being a link between the pain caused by his service-connected bilateral knee disabilities and his current headaches, standing alone, nor when combined with the supporting medical treatise evidence are adequate to adjudicate the claims. See Guerrieri v. Brown, 4 Vet. App. 467, 473 (1993) (“the probative value of medical opinion evidence is based on the medical expert’s personal examination of the patient, the physician’s knowledge and skill in analyzing the data, and the medical conclusion the physician reaches.... As is true with any piece of evidence, the credibility and weight to be attached to these opinions [are] within the province of the [Board as] adjudicators...”). Therefore, in order to comply with the JMPR the Board finds that a Remand is required to obtain VA medical opinions as to the relationship, if any, between the Veteran’s post-service headaches and acquired psychiatric disorder and his military service as well as to his service-connected bilateral knee disabilities. See 38U.S.C. § 5103A(d); Forcier v. Nicholson,19 Vet. App. 414, 425 (2006) (holding that the duty to ensure compliance with the Court’s order extends to the terms of the agreement struck by the parties that forms the basis of the joint motion to remand); cf. McBurney v. Shinseki, 23 Vet. App. 136, 140 (2009) (Board has a duty on remand to ensure compliance with the favorable terms stated in the joint motion for remand or explain why the terms will not be fulfilled.); McLendon v. Nicholson, 20 Vet. App. 84-86 (2006); Also see 38 C.F.R. §§ 3.303, 3.310; El–Amin v. Shinseki, 26 Vet. App. 136, 140-41 (2013) (holding that, when multiple theories of entitlement are at issue, the Board must ensure that the medical opinions of record directly address all theories reasonably raised by the record). In this regard, the Board notes that when obtaining the new etiology opinions and when again adjudicating the claims that agency of original jurisdiction (AOJ) should be aware of the fact that since the Board last adjudicating the claims the United States Court of Appeals for Veterans Claims (Court) changed the definition of aggravation. Specifically, the Court in Ward v. Wilkie, No.16-2157__Vet.App.__, 2019 U.S. App. Vet. Claims LEXIS 994 at *15 (Jun. 14, 2019) redefined the definition of aggravation to know include a temporary worsening of a disability. See also 38 C.F.R. § 3.310(b). While the appeal is in remand status, any outstanding VA and private treatment records should also be obtained and associated with the record on appeal. See 38U.S.C.§5103A(b). The appeal is REMANDED for the following actions: 1. Associate with the record any outstanding VA treatment records. 2. After obtaining all needed authorizations from the appellant, associate with the claims file any outstanding private treatment records. If possible, the appellant’s representative should submit any new pertinent evidence that the Board does not have. 3. In order to comply with the JMPR, schedule the Veteran for a VA examination with a suitably-qualified medical professional to address the etiology of his headaches and acquired psychiatric disorder. The claims file should be made available and reviewed by the examiner in conjunction with conducting the examination. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. Following consideration of the evidence of record (both lay and medical) and all evidence obtained during the examination, the examiner is asked to address the following: a. Provide diagnoses for all headaches and acquired psychiatric disorders. b. As to all headaches and acquired psychiatric disorders, provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that they were caused by the Veteran’s military service. c. As to all headaches and acquired psychiatric disorders, provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that they were caused by the Veteran’s service-connected bilateral knee disabilities. d. As to all headaches and acquired psychiatric disorders, provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that they were aggravated by the Veteran’s service-connected bilateral knee disabilities. In order to comply with the JMPR, in providing answers to the above questions the examiner should consider and discuss Dr. Heather Henderson-Galligan’s July 2017 and October 2019 opinion as to there being a link between the pain caused by his service-connected bilateral knee disabilities and his current acquired psychiatric disorder and Dr. Homer Skaggs October 2017 opinion as to there being a link between the pain caused by his service-connected bilateral knee disabilities and his current headaches. In order to comply with the JMPR, in providing answers to the above questions the examiner should consider and discuss the medical treatise evidence filed by the Veteran’s representative regarding, in substance, there being a link between the pain and developing an acquired psychiatric disorder and headaches. In providing answers to the above questions, the examiner should consider and discuss the service treatment records. In providing answers to the above questions, the examiner should consider and discuss the Veteran’s competent lay claims regarding observable symptomatology. In providing answers to the above questions, the examiner is also advised that the term “at least as likely as not” does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of conclusion as it is to find against In providing the etiology opinion, the examiner should be aware of the facts that the Court recently held in Ward, supra, that a “permanent worsening” of a non-service-connected disability is not required to establish secondary service connection on the basis of aggravation (i.e., aggravation may include temporary worsening of a disability). The examiner must include in the medical report the rationale for any opinion expressed. However, if the examiner cannot respond to an inquiry without resort to speculation, he or she should so state, and further explain why it is not feasible to provide a medical opinion, indicating whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or in the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). John J. Crowley Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board N.T. Werner, 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.